AVG Partners I v. Genesis Health Clubs

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/23/2020 09:13 AM CDT
- 47 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47AVG Partners I, LLC, also known as AVG Partners,
appellee and cross-appellant, v. Genesis Health
Clubs of Midwest, LLC, and 24 Hour
Fitness USA, Inc., appellants
and cross-appellees.
___ N.W.2d ___
Filed September 4, 2020. No. S-19-857.
1. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
2. Standing: Jurisdiction: Parties. Standing is a jurisdictional com­ponent
of a party’s case because only a party who has standing may invoke the
jurisdiction of a court.
3. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques­
tion of law, upon which an appellate court reaches a conclusion indepen­
dent of the trial court.
4. Directed Verdict: Appeal and Error. A directed verdict is proper at the
close of all the evidence only when reasonable minds cannot differ and
can draw but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.
5. ____: ____. In reviewing a trial court’s ruling on a motion for directed
verdict, an appellate court must treat the motion as an admission of the
truth of all competent evidence submitted on behalf of the party against
whom the motion is directed; such being the case, the party against
whom the motion is directed is entitled to have every controverted fact
resolved in its favor and to have the benefit of every inference which
can reasonably be deduced from the evidence.
6. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial or, in the alternative, to alter or amend
the judgment, for an abuse of discretion.
7. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
- 48 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
8. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
9. Prejudgment Interest: Appeal and Error. Awards of prejudgment
interest are reviewed de novo.
10. Verdicts: Appeal and Error. When reviewing a jury verdict, the appel-
late court considers the evidence and resolves evidentiary conflicts in
favor of the successful party.
11. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
evidence presented to the jury upon which it could find for the success-
ful party.
12. Courts: Appeal and Error. Appellate review of a district court’s use of
inherent power is for an abuse of discretion.
13. Standing: Jurisdiction: Proof. A party invoking a court’s or tribunal’s
jurisdiction bears the burden of establishing the elements of standing.
14. Standing: Jurisdiction. Standing requires that a litigant have such a
personal stake in the outcome of a controversy as to warrant invocation
of a court’s jurisdiction and justify exercise of the court’s remedial pow­
ers on the litigant’s behalf.
15. Leases: Words and Phrases. A lease is a species of contract for the
possession and profits of land and tenements, either for life or for a
certain period of time, or during the pleasure of the parties, and the
essential elements of a contract must be present.
16. Actions: Landlord and Tenant. In an action for rent, it is sufficient to
show a contract with plaintiff and a holding under him or her; plaintiff’s
title or right of possession is immaterial.
17. Rules of Evidence: Proof. There is no general rule of evidence
that a party must produce the best evidence which the nature of the
case permits.
18. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
19. ____: ____: ____. Erroneous admission of evidence does not require
reversal if the evidence is cumulative and other relevant evidence, prop-
erly admitted, supports the finding by the trier of fact.
20. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2010)
applies to four types of judgments: (1) money due on any instrument
in writing; (2) settlement of the account from the day the balance shall
- 49 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47be agreed upon; (3) money received to the use of another and retained
without the owner’s consent, express or implied, from the receipt
thereof; and (4) money loaned or due and withheld by unreasonable
delay of payment.
21. Rules of the Supreme Court: Pleadings: Prejudgment Interest:
Notice. Compliance with Neb. Ct. R. Pldg. § 6-1108(a) is not determina­
tive where entitlement to interest is based on statute and the adverse
party had notice and an opportunity to be heard prior to judgment.
22. Leases: Prejudgment Interest. Interest under Neb. Rev. Stat. § 45-104(Reissue 2010) can be recovered on a lease, although the statute’s provi-
sions may be superseded by terms set forth in the lease.
23. Claims: Prejudgment Interest. Whether a claim is liquidated or unliq-
uidated is immaterial with respect to a litigant’s ability to recover pre-
judgment interest under Neb. Rev. Stat. § 45-104 (Reissue 2010).
24. Rules of Evidence: Words and Phrases. Authentication or identifica-
tion of evidence is a condition precedent to its admission and is satisfied
by evidence sufficient to support a finding that the matter in question is
what its proponent claims.
25. Rules of Evidence: Proof. A proponent of evidence is not required to
conclusively prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity.
26. Rules of Evidence: Records: Words and Phrases. The term “data
compilation” in Neb. Rev. Stat. § 27-803(5)(b) (Reissue 2016) is broad
enough to include records furnished by third parties with knowledge of
the relevant acts, events, or conditions if the third party has a duty to
make the records and the holder of the record routinely compiles and
keeps them.
27. Leases: Real Estate: Taxes: Assessments. The right to recover real
estate taxes and assessments under a lease depends upon the wording of
the lease contract.
28. Taxes: Interest: Penalties and Forfeitures: Costs. It is a general rule
that in the absence of an express statute to the contrary, interest, penal-
ties, and costs collected on delinquent taxes follow the tax.
29. Appeal and Error. An argument that does little more than restate an
assignment of error does not support the assignment, and an appellate
court will not address it.
30. Actions: Pleadings: Notice. Under Nebraska’s liberal pleading regime
for civil actions, a party is required to set forth only a short and plain
statement of the claim showing the pleader’s entitlement to relief and is
not required to plead legal theories or cite appropriate statutes so long as
the pleading gives fair notice of the claims asserted.
31. Leases: Damages. When a lease provides for late charges, they may be
recoverable as damages.
- 50 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 4732. Appeal and Error: Words and Phrases. Plain error is error plainly
evident from the record and of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, or fairness of the
judicial process.
33. Courts: Jurisdiction. A district court, as a court of general jurisdiction,
has inherent power to do all things necessary for the proper administra-
tion of justice and equity within the scope of its jurisdiction.
34. Rules of the Supreme Court: Judges: Motions for Continuance. Trial
judges are encouraged to implement firm, consistent procedures for
minimizing continuances to meet case progression standards.
35. Trial: Judges. A trial judge has broad discretion over the conduct of
a trial.
36. Affidavits: Public Officers and Employees. In connection with an affi-
davit, a notary public completes a certificate, known as a jurat, which
confirms that the affiant appeared before the notary, attested to the truth
of his or her statements, and signed the affidavit.
37. Oaths and Affirmations: Affidavits: Public Officers and Employees.
The fact that an affiant signed an affidavit in the presence of a notary
and that the affiant’s signature was in fact notarized is sufficient as an
oath or affirmation.
38. Affidavits. Unless required by statute, an omission in a jurat that an
affidavit was sworn to will not be fatal if the fact otherwise appears.
39. Judgments: Words and Phrases. A court abuses its discretion when
its decision is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason, and
evidence.
40. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
W. Patrick Betterman, P.C., L.L.O., for appellants.
William F. Hargens and Lauren R. Goodman, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., and Gregory M. Bordo and
Christopher J. Petersen, of Blank Rome, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
- 51 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47Cassel, J.
I. INTRODUCTION
After a tenant breached its written leases on two commercial
properties, the landlord obtained a money judgment—based
upon a jury’s special verdict for “[u]npaid rent and late fees”
and “[u]npaid taxes.” The tenant appeals, and the landlord
cross-appeals. We find no merit in the tenant’s numerous argu-
ments—challenging the landlord’s standing, evidentiary rul-
ings, damages based on lease provisions governing late fees and
real estate taxes, statutory prejudgment interest, 1 and expenses
awarded for a trial delay caused by the tenant’s last-minute
discharge of its lawyer. Not reaching the cross-appeal of an
evidentiary ruling, we affirm the district court’s judgment.
II. BACKGROUND
We begin with a brief background. Additional facts will be
discussed, as necessary, in the analysis section.
As landlord, AVG Partners I, LLC, also known as AVG
Partners (AVG), sued its tenant’s assignee, Genesis Health
Clubs of Midwest, LLC, and its original tenant, 24 Hour
Fitness USA, Inc. (collectively Genesis), for breaches of two
commercial leases for property in Omaha, Nebraska. Each
written lease was for a building that was used as a fitness club.
One was located on South 145th Plaza (145th Plaza) and the
other on North 118th Circle (North Circle).
In April 2017, Genesis closed the North Circle facility and
vacated the premises even though the lease did not expire until
October 2019. It failed to make any of the monthly $63,154.29
rent payments for April 2017 or thereafter and failed to pay
property taxes. AVG sent Genesis a notice of default each
month from April 2017 to April 2019.
With respect to the 145th Plaza lease, Genesis paid one-
half of the $56,291.67 monthly rent due from September
2017 through June 2018. In response to the insufficient rent
1
See Neb. Rev. Stat. § 45-104 (Reissue 2010).
- 52 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47payments, AVG sent notices of default. Despite the notices
of default, Genesis never paid the remaining half of the rent
due from September 2017 through June 2018. Since June
2016, Genesis had not paid any of the property taxes levied on
145th Plaza.
The matter proceeded to a jury trial. Genesis did not dispute
the amounts of monthly rent owed under the written leases.
Nor was there any dispute that Genesis breached the leases by
failing to pay rent and real property taxes. In Genesis’ open-
ing statement, counsel informed the jury that there were two
reasons why AVG was not owed all the money it claimed:
AVG’s failure to mitigate the loss and its failure to give the
required notice.
The jury returned a special verdict in AVG’s favor. Regarding
the North Circle property, it found that AVG met its burden of
proving Genesis breached the lease agreement, causing AVG
damages of $1,657,800 for unpaid rent and late fees from
April 1, 2017, to the date of the verdict and of $264,937.47 for
unpaid taxes payable to that date. The jury found that Genesis
did not meet its burden of proving AVG failed to take reason-
able steps to minimize its damages. Regarding the property at
145th Plaza, the jury found that AVG met its burden of prov-
ing Genesis breached the lease agreement. According to the
verdict, AVG’s damages were $303,974.96 in unpaid rent and
late fees from September 20, 2017, to the date of the verdict
and $236,745.77 in unpaid taxes payable to that date. The court
entered judgment on the verdict and further awarded prejudg-
ment interest.
Genesis appealed, and AVG cross-appealed. We moved the
case to our docket. 2
III. ASSIGNMENTS OF ERROR
[1] Genesis assigned 14 errors, most of which contained
multiple subparts. An alleged error must be both specifically
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
- 53 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court. 3 We
address only those errors both assigned and argued.
Genesis alleges, consolidated and restated, that the court
erred in (1) failing to find that AVG lacked standing because
it failed to prove its ownership of the properties at issue,
(2) awarding prejudgment interest, (3) failing to reduce the spe-
cial verdict for penalty interest on taxes and late fees for both
properties and failing to grant Genesis a new trial on late fees,
(4) admitting certain exhibits and testimony into evidence, and
(5) awarding sanctions of $69,179.19.
On cross-appeal, AVG assigns that the court erred in sustain-
ing Genesis’ hearsay objection to the admission of exhibit 132.
IV. STANDARD OF REVIEW
[2,3] Standing is a jurisdictional com­ponent of a party’s
case because only a party who has standing may invoke the
jurisdiction of a court. 4 The question of jurisdiction is a ques-
tion of law, upon which an appellate court reaches a conclusion
indepen­dent of the trial court. 5
[4,5] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law. 6 In reviewing a trial
court’s ruling on a motion for directed verdict, an appellate
court must treat the motion as an admission of the truth of all
competent evidence submitted on behalf of the party against
whom the motion is directed; such being the case, the party
against whom the motion is directed is entitled to have every
3
TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).
4
In re Maint. Fund Trust of Sunset Mem. Park Chapel, 302 Neb. 954, 925
N.W.2d 695 (2019).
5
Id.6
Anderson v. Babbe, 304 Neb. 186, 933 N.W.2d 813 (2019).
- 54 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47controverted fact resolved in its favor and to have the benefit
of every inference which can reasonably be deduced from
the evidence. 7
[6] An appellate court reviews a denial of a motion for new
trial or, in the alternative, to alter or amend the judgment, for
an abuse of discretion. 8
[7,8] When the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for
an abuse of discretion. 9 Apart from rulings under the residual
hearsay exception, an appellate court reviews for clear error
the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence
on hearsay grounds. 10
[9] Awards of prejudgment interest are reviewed de novo. 11
[10,11] When reviewing a jury verdict, the appellate court
considers the evidence and resolves evidentiary conflicts in
favor of the successful party. 12 A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is com-
petent evidence presented to the jury upon which it could find
for the successful party. 13
[12] Appellate review of a district court’s use of inherent
power is for an abuse of discretion. 14
7
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435(2018).
8
Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).
9
Id.10
Pantano v. American Blue Ribbon Holdings, 303 Neb. 156, 927 N.W.2d
357 (2019).
11
Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
12
Jacobs Engr. Group v. ConAgra Foods, supra note 7.
13
Id.14
Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).
- 55 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47V. ANALYSIS
1. Assignment of Leases to AVG
(a) Additional Background
Genesis moved for a directed verdict on the basis that
there was no evidence of an assignment of the lessor’s inter-
est. Genesis’ counsel noted that there was no deed showing
the conveyance of the leased property to AVG and moved to
dismiss on the ground that AVG did not have standing. The
court overruled the motion, stating that the evidence as a whole
demonstrated AVG had the right to enforce the agreements and
collect rent. The court also overruled Genesis’ posttrial motion
to set aside the verdict and judgment and motion for new trial
asserting that AVG failed to prove the assignments.
(b) Discussion
[13,14] Genesis argues that AVG’s claims fail, because
AVG did not prove an assignment of the written leases to it.
And in the absence of the assignment, it challenges AVG’s
standing. A party invoking a court’s or tribunal’s jurisdiction
bears the burden of establishing the elements of standing. 15
Standing requires that a litigant have such a personal stake
in the outcome of a controversy as to warrant invocation of a
court’s jurisdiction and justify exercise of the court’s remedial
powers on the litigant’s behalf. 16 As discussed below, the evi-
dence supported AVG’s status as the landlord under the leases,
and as the landlord, AVG obviously had a personal stake in
this action.
[15,16] This is an action for two claims of breach of a writ-
ten contract. A lease is a species of contract for the posses-
sion and profits of land and tenements, either for life or for a
certain period of time, or during the pleasure of the parties,
and the essential elements of a contract must be present. 17
15
In re Maint. Fund Trust of Sunset Mem. Park Chapel, supra note 4.
16
Id.17
Krance v. Faeh, 215 Neb. 242, 338 N.W.2d 55 (1983).
- 56 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47In an action for rent, it is sufficient to show a contract with
plaintiff and a holding under him or her; plaintiff’s title or
right of possession is immaterial. 18 Generally the relation of
landlord and tenant is founded upon express contract, but
such relation may be presumed from the conduct of the par-
ties in the premises. 19 One in exclusive possession of the real
estate of another with the latter’s knowledge, in the absence
of all evidence on the subject, will be presumed in posses-
sion by the owner’s permission. 20 It is well settled that a ten-
ant cannot, while occupying the premises, dispute his or her
landlord’s title. 21 And the estoppel of a tenant to deny the title
of his or her landlord extends to everyone in privity with the
landlord, and it inures to the benefit of any person to whom
the landlord’s title may pass, and continues until possession is
actually surrendered. 22
[17] Genesis emphasizes the absence of a document assign-
ing the leases, but it was not essential. There is no general rule
of evidence that a party must produce the best evidence which
the nature of the case permits. 23 Thus, we have explained that
there is no hierarchy of evidence. 24 Here, the evidence at trial
demonstrated Genesis’ understanding that AVG was its landlord
under the leases; there was no evidence to the contrary. Genesis
made rent checks payable to “AVG Partners I, LLC.” When 24
Hour Fitness USA entered into a June 2016 lease assignment
18
Bartlett v. Robinson, 52 Neb. 715, 72 N.W. 1053 (1897).
19
Steen v. Scheel, 46 Neb. 252, 64 N.W. 957 (1895).
20
Skinner v. Skinner, 38 Neb. 756, 57 N.W. 534 (1894).
21
See, Bender v. James, 212 Neb. 77, 321 N.W.2d 436 (1982); Penn Mutual
Life Ins. Co. v. Sweeney, 132 Neb. 624, 273 N.W. 46 (1937); Kouma v.
Murphy, 129 Neb. 892, 263 N.W. 211 (1935); Carson v. Broady, 56 Neb.
648, 77 N.W. 80 (1898).
22
Hackney v. McIninch, 79 Neb. 128, 112 N.W. 296 (1907).
23
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
24
Id.- 57 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47agreement with Genesis, it listed the leases involved here and
identified the chain of assignments leading to the assignments
of the leases to AVG. In April 2017, when Genesis vacated
the North Circle premises, its law firm notified AVG, stating
that “AVG Partners I, LLC” and Genesis were parties to the
lease. Letters from the Douglas County treas­urer concerning
delinquent real estate taxes for 145th Plaza and North Circle
were addressed to “AVG Partners I LLC” as the owner of
the properties.
[18,19] In connection with this issue, Genesis argues that the
court erred in admitting the opinion of Tere Throenle, AVG’s
chief financial officer, regarding AVG’s ownership of the prop-
erties. In a civil case, the admission or exclusion of evidence
is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. 25 Erroneous admission of evi-
dence does not require reversal if the evidence is cumulative
and other relevant evidence, properly admitted, supports the
finding by the trier of fact. 26 Here, other properly admitted
evidence demonstrated AVG’s status as landlord under the
leases. Assuming, without deciding, that it was error to admit
Throenle’s opinion on ownership of the properties, any such
error was harmless.
We conclude that the assignments of error directed to AVG’s
alleged failure to prove assignment of the leases lack merit.
2. Prejudgment Interest
(a) Additional Background
AVG filed its operative complaint in November 2017, set-
ting forth when breaches occurred. The complaint requested
damages in an amount to be proved at trial and “[f]or all other
relief that the Court deems just and proper.” But it did not spe-
cifically request prejudgment interest.
25
Weyh v. Gottsch, supra note 11.
26
See Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
- 58 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47Prejudgment interest was litigated at trial. Throenle testified
that AVG calculated 12 percent interest on the outstanding rent.
It was Throenle’s understanding that 12 percent interest was
the statutory amount of interest applicable under Nebraska law.
In connection with Genesis’ motion for directed verdict, coun-
sel and the court discussed interest and the liquidated nature
of the claims. In closing arguments, AVG’s counsel stated,
“[W]hen . . . Throenle was testifying, we showed you a couple
of charts that had some numbers on them . . . . Those numbers
that were provided during . . . Throenle’s testimony, included,
. . . a 12 percent prejudgment interest amount that was added
to it.” Counsel stated that the court would calculate the interest
charge after trial.
The court awarded AVG “prejudgment interest in the
amount of $254,118.78 (as of May 22, 2019, with prejudg-
ment interest accruing thereon at $611.50 per day until entry of
judgment).”
(b) Discussion
(i) Application of Recent Decision
Genesis argues that our recent decision in Weyh v. Gottsch 27
should be applied only prospectively. Weyh was released after
trial but 11 days before the court entered its order on the jury
verdict and on prejudgment interest. Genesis contends that it
would be inequitable to apply Weyh retroactively, because liti-
gants have operated under the belief that prejudgment interest
under § 45-104 was not allowed for unliquidated claims except
when Neb. Rev. Stat. § 45-103.02 (Reissue 2010) applied.
In Weyh, we clarified Nebraska’s existing law on pre-
judgment interest. We held that § 45-103.02(2) was not the
exclusive means of recovering prejudgment interest. We
explained that “§§ 45-103.02 and 45-104 provide[d] separate
and independent means of recovering prejudgment interest,
27
Weyh v. Gottsch, supra note 11.
- 59 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47and we h[e]ld that when a claim is of the types enumerated in
§ 45-104, then prejudgment interest may be recovered without
regard to whether the claim is liquidated.” 28 As we discuss
below, § 45-104 has long been part of Nebraska law.
In rare circumstances, fairness and equity dictate that a
newly announced rule of law be effective as of the date of the
court’s opinion. 29 Nearly half a century ago, the U.S. Supreme
Court set forth the following standard for prospective applica-
tion of a substantive change in law:
First, the decision to be applied nonretroactively must
establish a new principle of law, either by overruling
clear past precedent on which litigants may have relied
. . . or by deciding an issue of first impression whose
resolution was not clearly foreshadowed . . . . Second,
[the court] “must . . . weigh the merits and demerits in
each case by looking to the prior history of the rule in
question, its purpose and effect, and whether retrospec-
tive operation will further or retard its operation.” . . .
Finally, [the court must weigh] the inequity imposed by
retroactive application, for “[w]here a decision of [the
court] could produce substantial inequitable results if
applied retroactively, there is ample basis in our cases
for avoiding the ‘injustice or hardship’ by a holding of
nonretroactivity.” 30
Genesis’ rationale seems to be that one who violates a
contract falling squarely within the statute should nonetheless
avoid prejudgment interest because this court had judicially
imposed a limitation appearing nowhere in the statute. We see
no unfairness, inequity, injustice, or hardship in enforcing the
statute as written. We will apply Weyh here.
28
Id. at 283, 929 N.W.2d at 45.
29
See Commercial Fed. Sav. & Loan v. ABA Corp., 230 Neb. 317, 431
N.W.2d 613 (1988).
30
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S. Ct. 349, 30 L. Ed.
2d 296 (1971) (citations omitted).
- 60 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47(ii) Compliance With
Neb. Ct. R. Pldg. § 6-1108(a)
Genesis argues that AVG’s failure to comply with a plead-
ing rule is fatal to its claim for prejudgment interest. Section
6-1108(a) states in part, “If the recovery of money be demanded,
the amount of special damages shall be stated but the amount
of general damages shall not be stated; and if interest thereon
be claimed, the time from which interest is to be computed
shall also be stated.”
The above-quoted language of § 6-1108(a) is not a new
requirement. It was long codified in statute. 31 The statu-
tory language was repealed in 2002, 32 when the Legislature
“amend[ed] the civil procedure code of Nebraska from that
of a code pleading system to a notice pleading system.” 33 In
connection with the repeal, the Legislature enacted a statute
empowering this court to promulgate rules of pleading to apply
in civil actions. 34 Hence, the statutory language became part of
pleading rule § 6-1108(a).
Genesis directs our attention to our cases stating that a
party was not entitled to prejudgment interest where it was
not requested in the party’s complaint. 35 In Higgins v. Case
Threshing Machine Co., 36 we observed that the petition did not
mention interest, that a statute required the time from which
interest is to be computed to be stated, and that we did not
allow interest in two earlier cases where it was not prayed for
31
See, e.g., Rev. Stat. §§ 92 (1867) and 7664 (1913), Comp. Stat. §§ 8608
(1922) and 20-804 (1929), and Neb. Rev. Stat. § 25-804 (1943).
32
See 2002 Neb. Laws, L.B. 876, § 92.
33
Introducer’s Statement of Intent, L.B. 876, Judiciary Committee, 97th
Leg., 2d Sess. (Jan. 25, 2002).
34
See, 2002 Neb. Laws, L.B. 876, § 1; Neb. Rev. Stat. § 25-801.01 (Reissue
2016).
35
See, Life Investors Ins. Co. v. Citizens Nat. Bank, 223 Neb. 663, 392
N.W.2d 771 (1986); Higgins v. Case Threshing Machine Co., 95 Neb. 3,
144 N.W. 1037 (1914).
36
Higgins v. Case Threshing Machine Co., supra note 35.
- 61 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47in the petition. In one of those earlier cases, we stated that
where “the plaintiff does not pray for interest, but simply prays
a judgment for $200 and costs,” it was error to authorize the
jury to add interest to whatever damages it found due. 37 In the
other, we cited the statute and stated that it was error to permit
the jury to include interest on the sum claimed in the absence
of a prayer for interest in the petition. 38 In Life Investors Ins.
Co. v. Citizens Nat. Bank, 39 we cited Higgins and stated that
prejudgment interest could not be awarded because it was not
requested in the petition.
Significantly, there is no indication in these earlier cases of
any statutory basis for an award of prejudgment interest. We
stated in Weyh: “In Nebraska, there are two statutes that autho-
rize recovery of prejudgment interest. The first, § 45-104, was
enacted in 1879, and the second, § 45-103.02, was enacted in
1986 and amended in 1994.” 40
Section 45-103.02 could not have supplied a basis for an
award in the cases Genesis cites, because it was not in effect
at the time of these pre-1987 cases. As originally adopted,
§ 45-103.02 applied to “‘all causes of action accruing on or
after January 1, 1987.’” 41
[20] Section 45-104 and its prior codifications were in
effect, but it is not clear that the statute would have applied
to the earlier cases. “Since its adoption more than a century
ago, § 45-104 has identified four types of claims—all con-
tract based—under which prejudgment interest is allowed.” 42
Section 45-104 applies to four types of judgments: (1) money
due on any instrument in writing; (2) settlement of the
37
City of South Omaha v. Ruthjen, 71 Neb. 545, 549, 99 N.W. 240, 242
(1904).
38
See Rawlings v. Anheuser-Busch Brewing Ass’n., 1 Neb. (Unoff.) 555, 95
N.W. 792 (1901).
39
Life Investors Ins. Co. v. Citizens Nat. Bank, supra note 35.
40
Weyh v. Gottsch, supra note 11, 303 Neb. at 301, 929 N.W.2d at 55.
41
Id. at 306, 929 N.W.2d at 58. See § 45-103.02 (Reissue 1988).
42
Weyh v. Gottsch, supra note 11, 303 Neb. at 301, 929 N.W.2d at 55.
- 62 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47account from the day the balance shall be agreed upon; (3)
money received to the use of another and retained without the
owner’s consent, express or implied, from the receipt thereof;
and (4) money loaned or due and withheld by unreasonable
delay of payment. 43 But Higgins was an action upon an appeal
bond, City of South Omaha v. Ruthjen was an action for dam-
ages to property resulting from grading of a street, and Life
Investors Ins. Co. was an action to recover overpayment of
insurance proceeds under alternative theories of fraudulent
misrepresentation and mutual mistake. 44 It does not appear that
there would have been any entitlement to prejudgment interest
under § 45-104 in these cases.
Genesis also relies on Albrecht v. Fettig, 45 a recent decision
by the Nebraska Court of Appeals. There, the court rejected
an argument that a plaintiff’s request for “‘further relief as the
Court deems just and equitable’” sufficiently put the defendant
on notice that prejudgment interest could be awarded. 46 The
decision did not mention Weyh 47—decided 1 month earlier—
and erroneously stated that “[p]rejudgment interest may be
awarded only as provided in . . . § 45-103.02.” 48 The Court of
Appeals recognized that § 45-103.02(2) was adopted after Life
Investors Ins. Co. and that tension appeared to exist between
the language of § 45-103.02(2) that prejudgment interest “shall
accrue” and § 6-1108(a). The Court of Appeals reasoned:
[W]e do not believe that this tension is irreconcilable.
Section 45-103.02(2) clearly sets out the availability of
prejudgment interest. However, the court rule (adopted as
43
Weyh v. Gottsch, supra note 11.
44
See, Life Investors Ins. Co. v. Citizens Nat. Bank, supra note 35; Higgins
v. Case Threshing Machine Co., supra note 35; City of South Omaha v.
Ruthjen, supra note 37.
45
Albrecht v. Fettig, 27 Neb. App. 371, 932 N.W.2d 331 (2019).
46
Id. at 387, 932 N.W.2d at 342.
47
Weyh v. Gottsch, supra note 11.
48
Albrecht v. Fettig, supra note 45, 27 Neb. App. at 387, 932 N.W.2d at 342.
- 63 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47part of the introduction of notice pleading to Nebraska)
is concerned with litigants having adequate notice of the
relief a plaintiff is seeking to obtain. Therefore, although
the rule does place a procedural condition on a plaintiff’s
ability to recover prejudgment interest, it does not negate
a plaintiff’s ability to recover. Moreover, the rule secures
a defendant’s ability to have notice of the entire scope of
the relief requested and prepare defenses thereto. 49
In Albrecht, like in the earlier cases, there was no indication
that the defendant had notice of a claim for prejudgment inter-
est or had an opportunity to argue against an award of such
interest prior to entry of judgment.
The district court cited a case decided by the Court of
Appeals shortly before Albrecht. In Farm & Garden Ctr. v.
Kennedy, 50 the complaint requested interest under Neb. Rev.
Stat. § 45-101.04 (Reissue 2010), but the plaintiff ultimately
sought interest under § 45-104. The Court of Appeals reasoned
that “[t]here was no question [the plaintiff] was seeking inter-
est on unpaid balances preceding the entry of a final judgment”
and that “there was no surprise or prejudice” to the defendant. 51
The court then stated the Nebraska Supreme Court has held that
“if a statutory basis exists for an award of interest, . . . interest
can be awarded even if the petition is silent as to a request for
interest.” 52 For that proposition, the Court of Appeals cited to
Thacker v. State, 53 an eminent domain proceeding. In Thacker,
interest was awarded under Neb. Rev. Stat. § 76-711 (1943),
but the condemnor claimed the award was erroneous because
49
Albrecht v. Fettig, supra note 45, 27 Neb. App. at 389, 932 N.W.2d at 343.
50
Farm & Garden Ctr. v. Kennedy, 26 Neb. App. 576, 921 N.W.2d 615(2018).
51
Id. at 600, 921 N.W.2d at 632.
52
Id.
53
Thacker v. State, 193 Neb. 817, 229 N.W.2d 197 (1975), overruled in part
on other grounds, Langfeld v. Department of Roads, 213 Neb. 15, 328
N.W.2d 452 (1982).
- 64 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47the petition did not pray for interest. We disagreed, stating
that “[t]he owner’s right to interest rests upon the provisions
of [§ 76-711], and not upon the prayer of the petition.” 54 In a
2009 case, the Court of Appeals reached the same conclusion,
noting that although the plaintiff did not request interest in the
prayer of its petition, the plaintiff was entitled to interest under
§ 76-711 (Reissue 2003). 55
[21] Under the circumstances before us, we agree with the
district court that AVG is not precluded from recovering pre-
judgment interest under § 6-1108(a). Specifically requesting
interest in the complaint is encouraged, because it clearly puts
the opposing party on notice. But compliance with § 6-1108(a)
is not determinative where entitlement to interest is based on
statute and the adverse party had notice and an opportunity to
be heard prior to judgment. That is the situation here, where
prejudgment interest was the subject of extensive argument
prior to judgment.
(iii) Liquidated Nature of Claims
and Commencement
Genesis advances two more reasons why AVG should not be
able to recover prejudgment interest: AVG’s rent claims were
unliquidated and it failed to prove when prejudgment interest
commenced. Both reasons fail.
[22,23] Section 45-104 allows for interest “on money due
on any instrument in writing.” We have recognized that inter-
est under § 45-104 can be recovered on a lease, although the
statute’s provisions may be superseded by terms set forth in
the lease. 56 And in Weyh, we clarified that § 45-104 contained
no requirement that the claims described therein must also be
liquidated in order to recover prejudgment interest. 57 Thus,
54
Id. at 821, 229 N.W.2d at 201.
55
See Walter C. Diers Partnership v. State, 17 Neb. App. 561, 767 N.W.2d
113 (2009).
56
See Prudential Ins. Co. v. Greco, 211 Neb. 342, 318 N.W.2d 724 (1982).
57
Weyh v. Gottsch, supra note 11.
- 65 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47whether a claim is liquidated or unliquidated is immaterial with
respect to a litigant’s ability to recover prejudgment interest
under § 45-104.
Genesis also argues that there was a failure of proof regard-
ing when interest should commence. According to Genesis,
“AVG failed to prove it gave notice in any manner specified
in §19.2 and thus failed to prove the date prejudgment interest
commenced, if at all.” 58 We disagree.
Section 19.2 of the written leases addressed the notice that
must be given, stating that notice must be given in writing and
would be deemed effective “(2) business days after deposit in
the United States mail in the County, certified and postage pre-
paid” or “upon receipt if sent in any other way.” The notices of
default showed that all were sent via email and that some were
additionally sent via certified mail. The co-owner and president
of Genesis admitted receiving letters, emails, and notices of
default from AVG’s counsel. The evidence sufficiently estab-
lished Genesis’ receipt of the notices of default.
Section 15.1 of the leases provided that default occurs if
the tenant fails to pay rent within 10 days of written notice of
nonpayment. The first notice of default for North Circle was
sent on April 4, 2017. Thus, prejudgment interest on that claim
of unpaid rent commenced running on April 15. The com-
mencement date for prejudgment interest for the other claims
of unpaid rent can similarly be ascertained by adding 11 days
to the date on which the notice of default was sent.
We conclude that Genesis’ challenges to the award of pre-
judgment interest lack merit.
3. Tax Penalties
(a) Additional Background
The written leases addressed payment of real property taxes.
They obligated the tenant to pay “any tax, assessment, charge,
license, fees, levy, real property or other tax” levied against
the premises. The leases required that the landlord send the
58
Brief for appellants at 34.
- 66 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47tax-due notice to the tenant and that the tenant “pay said taxes
prior to delinquency dates.” There is no dispute that Genesis
failed to pay the property taxes due under both leases for tax
years 2016 through 2018.
Throenle instructed AVG’s law firm to issue notices of
default for delinquent property taxes concerning 145th Plaza.
Because property taxes on these properties were “billed” every
6 months, the notices were sent August 2, 2017; April 2 and
August 2, 2018; and April 10, 2019. The notices of default
identified the amount of unpaid property taxes. To obtain such
information, AVG consulted the Douglas County treasurer’s
website. AVG followed up with a telephone call to confirm
whether any payment had been made that was not posted to
the website.
Throenle testified that she received a letter in the mail from
the Douglas County treasurer regarding a listing for a tax lien
sale of the delinquent property taxes for 145th Plaza. She relied
on the information in the letter to provide Genesis with the
amounts that were unpaid. According to Throenle, the letter
was something that AVG maintains in its files for the property
in the ordinary course of its business. Douglas County also
charged interest and penalties for late payment. To ascertain
the amount owed on any given day, Throenle testified that she
called the “Assessor’s” office to obtain the interest charges
through that actual day. She last called on April 26, 2019.
Similarly, Throenle instructed AVG’s law firm to send
notices of default to Genesis for nonpayment of property taxes
on the North Circle property. The amounts stated on the notices
were obtained from documentation from the Douglas County
treasurer. Throenle testified regarding her efforts to determine
the amount of property taxes, interest, and penalties due for the
North Circle property on any given day. She obtained the total
amount due as of April 26, 2019.
The court received into evidence exhibits 117 and 123,
which set forth a compilation of AVG’s alleged damages for
each respective lease. Throenle testified that she prepared the
exhibits with one of AVG’s attorneys and that she obtained
- 67 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47the information contained in the exhibits from AVG’s account-
ing records and from the “County Assessor.” Throenle also
testified that the information on the exhibits was contained in
exhibits that had been admitted into evidence.
The exhibit for 145th Plaza, exhibit 117, showed unpaid rent
from September 2017 through June 2018 of $281,458.30, with
late charges at 5 percent amounting to $14,072.92. Late charges
for August, September, and November 2018 totaled $8,443.74.
The unpaid property taxes, including interest and late fees, as of
April 26, 2019, were calculated to be $236,745.77. According
to the exhibit, AVG’s total damages for 145th Plaza as of
May 6, 2019, were $540,720.73. The exhibit for North Circle,
exhibit 123, showed total unpaid rent from April 2017 to April
2019 to be $1,578,857.25 and total late charges at 5 percent
during that period to be $78,942.75. The total unpaid property
taxes, including interest and late fees, were $264,937.47. The
exhibit showed AVG’s total damages as of May 6, 2019, to be
$1,922,737.47.
(b) Discussion
(i) Admissibility of Exhibits and Testimony
Genesis both assigned and argued that the court erred in
admitting exhibits 116 and 122, which contained tax informa-
tion from the Douglas County treasurer, and exhibits 117 and
123, which showed a compilation of damages for the respec-
tive leases. Genesis also argues that Throenle’s testimony about
her telephone calls to the “Assessor’s Office” should not have
been admitted.
a. Exhibits 116 and 122
Exhibit 116—pertaining to 145th Plaza—and exhibit 122—
concerning North Circle—were five-page documents contain-
ing similar information from the Douglas County treasurer
regarding taxes for the two properties. The first two pages of
each exhibit were black-and-white printouts titled “Douglas
County Treasurer - Real Property Tax Inquiry,” with each
page appearing to contain identical information, purportedly
- 68 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47from the treasurer’s official website. The third page was a
February 2018 letter from the treasurer to AVG setting forth
the amount of delinquent taxes and the amount that needed
to be paid by February 28 to avoid additional penalty interest
and prevent a tax lien. The fourth and fifth pages showed the
tax billed each year, tax paid, and interest paid. The fourth
page contained the interest calculation to February 28, and the
“Grand Total Due” matched the amount stated in the letter.
Throenle testified that the fourth and fifth pages were enclosed
with the letter.
When AVG offered exhibits 116 and 122 into evidence,
Genesis objected on numerous grounds, including that they
failed to comply with the authenticity requirements of Neb.
Rev. Stat. §§ 27-901 and 27-902 (Reissue 2016), that founda-
tion was incomplete under Neb. Rev. Stat. § 27-1005 (Reissue
2016), and that they were hearsay. The court overruled the
objections and received the exhibits. In Genesis’ brief, it
asserts that the exhibits were “unauthenticated hearsay.” 59
[24,25] Authentication or identification of evidence is a
condition precedent to its admission and is satisfied by evi-
dence sufficient to support a finding that the matter in ques-
tion is what its proponent claims. 60 A proponent of evidence
is not required to conclusively prove the genuineness of the
evidence or to rule out all possibilities inconsistent with
authenticity. 61
Throenle’s testimony about the exhibits satisfied the authen-
tication requirement. She identified the first two pages of
each exhibit as a “print screen” or “printout.” Although she
incorrectly stated at times that an exhibit was from the asses-
sor’s website rather than that of the treasurer, the exhibit
clearly showed that the documents were from the treasurer.
A computer printout is admissible as a business record if the
59
Brief for appellants at 38.
60
See § 27-901(1).
61
State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018), modified on denial
of rehearing 302 Neb. 492, 924 N.W.2d 64 (2019).
- 69 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47offeror establishes a sufficient foundation in the record for
its introduction. 62 Throenle testified that the last three pages
were received by AVG from the Douglas County treasurer and
maintained in AVG’s files in the ordinary course of business
and in connection with establishing the taxes due. Through
Throenle’s testimony, AVG provided the court with sufficient
evidence to show that the documents were what they purported
to be.
[26] To the extent the exhibits were hearsay, an exception to
the hearsay rule applied. Under Neb. Rev. Stat. § 27-803(5)(b)
(Reissue 2016), an exception to the hearsay rule includes
[a] memorandum, report, record, or data compilation,
in any form, of acts, events, or conditions, other than
opinions or diagnoses, that was received or acquired in
the regular course of business by an entity from another
entity and has been incorporated into and kept in the regu-
lar course of business of the receiving or acquiring entity;
that the receiving or acquiring entity typically relies upon
the accuracy of the contents of the memorandum, report,
record, or data compilation; and that the circumstances
otherwise indicate the trustworthiness of the memoran-
dum, report, record, or data compilation, as shown by the
testimony of the custodian or other qualified witness.
The term “data compilation” in § 27-803(5)(b) is broad enough
to include records furnished by third parties with knowledge
of the relevant acts, events, or conditions if the third party
has a duty to make the records and the holder of the records
routinely compiles and keeps them. 63 It is not disputed that the
county treasurer had a duty to make such records.
Throenle testified extensively concerning her duties in
admin­istering the leases for AVG. She obtained the neces-
sary information to include in notices of default regarding
the amount of unpaid taxes. To do so, she would consult
62
State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
63
See Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
- 70 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47information displayed on the treasurer’s website. She fol-
lowed up with a telephone call, ensuring the accuracy of the
website’s data. She also relied on the letter mailed to AVG
from the treasurer, which letter AVG maintained in its files in
the ordinary course of its business. The exhibits fit within the
business record exception to hearsay.
We find no error or abuse of discretion in admitting exhibits
116 and 122.
b. Throenle’s Testimony and
Exhibits 117 and 123
After the court had received notices of default for 145th
Plaza and data from the county treasurer in exhibit 116,
Throenle testified that AVG determined the outstanding taxes,
interest, and penalties for 145th Plaza via an April 26, 2019,
telephone call. When asked what that amount was, Throenle
answered, “I don’t recall the exact amount.” AVG’s counsel
responded: “All right. We’ll provide that for you.” Counsel
then had Throenle look at exhibit 117, which had not been
offered into evidence at that point. Shortly thereafter, the
exhibit was offered and received, and Throenle proceeded to
testify to the amounts shown on the exhibit.
Throenle confirmed that she ascertained the unpaid prop-
erty taxes for the North Circle property in the same manner
as for 145th Plaza. After the court received notices of default
concerning North Circle and the county treasurer’s data con-
tained in exhibit 122, counsel showed Throenle exhibit 123.
Throenle identified it as summaries that she prepared with
counsel and testified that she obtained the information from
documents that had been admitted into evidence and about
which she had already testified. When asked if exhibit 123
would be helpful to Throenle in testifying to the amounts owed
by Genesis for the property, Throenle answered, “Yes.” AVG
then offered the exhibit into evidence, and the court received it
over Genesis’ objections. Throenle testified that she reviewed
a chart for accuracy, and she later testified about the amounts
displayed thereon.
- 71 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47Genesis argues that Throenle’s testimony about the April
26, 2019, telephone call to the treasurer’s office was hearsay
and that exhibits 117 and 123—which contained the amount of
unpaid property taxes, interest, and penalties based on the tele-
phone call—were also hearsay. Genesis additionally challenges
the overruling of its objections to exhibits 117 and 123 based
on improper foundation for a summary under Neb. Rev. Stat.
§ 27-1006 (Reissue 2016). Even if we assume there was error
in admitting Throenle’s testimony or the exhibits, it would not
be reversible error.
Exhibits 117 and 123 were offered during Throenle’s testi-
mony. Throenle helped prepare the exhibits and was familiar
with the information they contained. Importantly, she was
subject to cross-examination at trial. The exhibits compiled
evidence from the notices of default sent by AVG and from the
county treasurer’s documents—evidence that, with one caveat,
was already received at trial. The only information contained
on exhibits 117 and 123 that was not already in evidence
was the interest charges through a particular day. Aside from
calling the treasurer’s office, Throenle was unaware of any
other means to obtain the amount of unpaid taxes and interest
charges due through any particular day. But determining that
amount involved only a mathematical calculation. Because
exhibits 117 and 123 were based on information already in
evidence and otherwise determinable by use of a calculator,
the only possible “prejudice” to Genesis was that it made the
jury’s duty to determine damages too easy. We find no revers-
ible error on that basis.
(ii) Inclusion of “Penalties”
in Award for Taxes
Genesis argues that the jury’s special verdict erroneously
included “[t]ax [p]enalties.” 64 The tax penalties to which
Genesis refers are amounts assessed as statutory interest at
64
Brief for appellant at 34.
- 72 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47the rate of 14 percent on delinquent payments of taxes. 65 The
county treasurer’s documents show that it also imposed a $5
advertising charge. We have declared that interest imposed on
an unpaid tax is a penalty. 66 Genesis contends that because the
court instructed the jury that the measure of the damages was
“[t]he amount of unpaid real estate taxes due,” it was error to
include penalties as part of the award.
[27] Prudential Ins. Co. v. Greco 67 provides insight on the
right to recover taxes and assessments under a lease. There,
the lease provided: “‘Tenant shall be liable for and shall pay to
either the Owner or the taxing authority before delinquent all
taxes levied or assessed against or for leasehold improvements
. . . .’” 68 Landlord presented testimony that it paid the full
amount due on the taxes, including amounts due on tenant’s
improvements. We stated: “The elements necessary to establish
a right of recovery were that [landlord] paid taxes levied to
the taxing authority; that included in the amount paid as taxes
was a sum based upon tenant’s improvements; and that [tenant]
owes [landlord] a sum certain for the payment of the taxes.” 69
We determined that landlord made out a prima facie case under
provisions of the lease establishing the right to recover taxes
paid for improvements. In other words, the right to recover real
estate taxes and assessments under a lease depends upon the
wording of the lease contract.
[28] The lease agreements here broadly defined Genesis’
obligation to pay real estate taxes. Under a statute governing
collection of delinquent real estate taxes, interest is “collected
the same as the tax upon which the interest accrues.” 70 Another
statute declares taxes on real property to be a first lien on
65
See Neb. Rev. Stat. § 45-104.01 (Reissue 2010).
66
See Ameritas Life Ins. v. Balka, 257 Neb. 878, 601 N.W.2d 508 (1999).
67
Prudential Ins. Co. v. Greco, supra note 56.
68
Id., 211 Neb. at 344, 318 N.W.2d at 726.
69
Id. at 345, 318 N.W.2d at 727.
70
Neb. Rev. Stat. § 77-207 (Reissue 2018).
- 73 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47the property taxed. 71 It is a general rule that in the absence
of an express statute to the contrary, interest, penalties, and
costs collected on delinquent taxes follow the tax. 72 Here,
§§ 2.1 and 7.2 of the leases define “‘Real Property Taxes’”
to be “any tax, assessment, charge, license, fees, levy, real
property or other tax” levied against the premises. (Although
§ 2.1 refers to the definition contained in § 7.5, this appears
to be a typographical error insofar as § 7.5 addresses utilities
and makes no mention of taxes.) One definition of “charge”
is “[p]ecuniary burden; expense, cost.” 73 We conclude that
the county treasurer’s collections of statutory interest and the
advertising fee fit within that definition. Because the county’s
interest and advertising imposed a pecuniary burden on the real
estate, they were “charges” as that term was used in the lease.
Thus, the provisions of the lease made them recoverable as a
component of “real estate taxes.”
(iii) Failure to Mitigate
Tax Penalties
[29] Genesis assigned that AVG was barred from recovering
tax penalties because it failed to mitigate them, but we do not
resolve the insufficiently argued assignment. The totality of
Genesis’ support for the assigned error contained in the argu-
ment section of its brief stated: “The tax penalties AVG seeks
are avoidable. AVG’s failure to mitigate them bars its recovery.
Tedd Bish Farm, Inc. v. Southwest Fencing Services, LLC, 291
Neb. 527 (2015).” 74 An argument that does little more than
restate an assignment of error does not support the assignment,
and an appellate court will not address it. 75
71
See Neb. Rev. Stat. § 77-203 (Reissue 2018).
72
School District of the City of Omaha v. Adams, 147 Neb. 1060, 26 N.W.2d
24 (1947).
73
“Charge,” Oxford English Dictionary Online, http://www.oed.com/view/
Entry/30686 (last visited Aug. 26, 2020).
74
Brief for appellants at 37.
75
Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
- 74 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 474. Late Charges for Nonpayment of Rent
(a) Additional Background
The written leases contained similar terms on payment of
rent and late charges. They specified that rent was due on
the first day of each month. According to the leases, the ten-
ant acknowledged that its late payment of rent “will cause
Landlord to incur costs not contemplated by this Lease, the
exact amount of which is extremely difficult or impracticable
to determine.” Therefore, if any installment of monthly rent
was not received by the landlord within 10 days of the tenant’s
receipt of a written notice of nonpayment, the tenant shall pay
to the landlord “a one-time additional sum equal to five per-
cent (5%) of the amount overdue as a late charge for each such
overdue payment.”
Throenle explained that late rent payments caused AVG to
incur administrative costs to calculate and verify amounts owed
and to alert AVG’s attorneys to prepare a notice of default for
the tenant. AVG then incurred legal fees in connection with
counsel’s preparation of the notices. Throenle estimated that
she spent 2 to 3 hours per month assisting with the notices
of default and that the actual cost to AVG for her services in
that regard was $150 an hour. Throenle testified that she was
assisted by an individual who spent approximately 30 minutes
to 1 hour each month at a cost of $30 to $40. Thus, Throenle
testified that $370 a month for her work and that of the other
individual was a fair estimate of costs incurred by AVG’s staff
associated with notices of default, but AVG also incurred attor-
ney fees. In contrast, the 5-percent late charge amounted to
around $2,500 for the 145th Plaza lease and over $3,000 for
the North Circle lease.
(b) Discussion
(i) Whether AVG Claimed
Late Charges
Genesis argues that AVG should not have been able to
recover late charges, because it failed to claim them. According
- 75 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47to Genesis, the complaint did not allege Genesis breached the
leases by failing to pay late charges. We disagree.
[30] Under Nebraska’s liberal pleading regime for civil
actions, a party is required to set forth only a short and plain
statement of the claim showing the pleader’s entitlement to
relief and is not required to plead legal theories or cite appro-
priate statutes so long as the pleading gives fair notice of
the claims asserted. 76 The complaint alleged that the leases
required Genesis to “[p]ay late charges in the event of a failure
to make timely rent payments.” It set forth an “amount of rent
including late charges pursuant [to] the 145th Plaza Lease”
that was due. And it further alleged that Genesis breached both
leases by “[f]ailing to make timely rent payments . . . .” The
complaint gave fair notice that AVG was seeking to recover
late charges as a part of rent.
(ii) Whether Late Charges
Are Recoverable
Genesis next contends that late charges were not recoverable
for three reasons. We find no merit to its arguments.
First, Genesis argues that late fees were not included as
recoverable damages in the jury instructions. The instructions
stated that the “measure of the damage” was “[t]he amount of
unpaid rent due” and “[t]he amount of unpaid real estate taxes
due.” While the instructions did not separately identify late
charges as a measure of damages, such charges fall within the
definition of “rent” under the leases. Both of the leases define
“rent” as “Monthly Rent and Additional Rent, collectively.”
And they define “additional rent” to mean “any and all sums
(whether or not specifically called ‘Additional Rent’ in this
Lease) other than Monthly Rent which [tenant] is or becomes
obligated to pay to Landlord under this Lease.” Thus, late
charges are recoverable as a component of “rent.”
[31] Second, Genesis argues that late fees are a penalty and
thus not recoverable as a matter of law. When a lease provides
76
See Vasquez v. CHI Properties, 302 Neb. 742, 925 N.W.2d 304 (2019).
- 76 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47for late charges, they may be recoverable as damages. 77 Here,
the leases provided for a 5-percent late charge on overdue
payments and the leases’ definition of rent encompassed such
charges. They were recoverable as damages.
Third, Genesis claims that AVG failed to prove Genesis
received default notices. The leases provide that Genesis shall
pay to AVG a late charge if any payment of rent due “is not
received by Landlord within ten (10) days of [tenant’s] receipt
of a written notice of nonpayment.” As we explained above
regarding prejudgment interest, the evidence sufficiently estab-
lished Genesis’ receipt of the notices of default.
(iii) Whether New Trial on
Late Charges Is Required
Alternatively, Genesis argues that a new trial on late fees
is required. During the jury instruction conference, Genesis
objected to the verdict form, claiming that “the late fees based
on the testimony of . . . Throenle were for the purpose of pen-
alty and are unenforceable under Nebraska law, and it would
be error to instruct on late fees.” The court responded, “I’m
going to go with the verdict form that we’ve talked about
and the one I’ve provided to you.” Later, Genesis timely
filed a motion for new trial asserting, among other things,
that the court committed plain error by adding “late fees” after
“[u]npaid rent” on the verdict form, by failing to instruct the
jury not to award late fees if the jury determined they were a
penalty, and by including late fees with damages on the verdict
form when such fees were not recoverable. The court overruled
the motion.
[32] Genesis argues that the court committed plain error by
failing to instruct the jury on Genesis’ penalty and condition
precedent defenses to late charges. It further asserts that there
was plain error in the jury’s award of late charges for August,
September, and November 2018. Plain error is error plainly
77
See GFH Financial Serv. Corp. v. Kirk, 231 Neb. 557, 437 N.W.2d 453(1989).
- 77 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process. 78 We see no plain error.
5. Award of Sanctions
(a) Additional Background
Six days before trial was originally set to begin, Genesis
moved for a continuance. Genesis stated in the motion that it
had terminated the attorney-client relationship with its counsel
and requested 3 weeks to retain new counsel. Genesis’ attorney
submitted an affidavit which stated that his representation of
Genesis was terminated “as a result of a good faith disagree-
ment . . . regarding trial strategy.”
Two days later, the court held a hearing on the motion for
continuance. Genesis’ attorney recognized that it was “two
business days before trial is to begin,” but stated that there
was “no time for new counsel to get up to speed and to try the
case on Monday.” Counsel explained that he and Genesis had a
difference of opinion about trial strategy and that the disagree-
ment “came to a head” as they prepared to file documents with
the court indicating how they planned to proceed at trial. The
court allowed the attorney, having been fired by Genesis, to
withdraw. But the court declined to continue the trial.
Genesis obtained counsel to make a limited appearance on
its behalf in order to file a renewed motion for continuance of
trial and to appear at a hearing on the motion. The court heard
the motion on February 4, 2019, the day trial was to com-
mence. The court explained that it earlier declined to continue
the trial because the matter had been on file for nearly 2 years,
the request for continuance was a late one, and only a vague
reason of dispute in trial strategy was given.
AVG opposed a continuance. It asserted that it has “$60,000
a month of continuing damages” and did not see why Genesis’
decision to terminate its representation by counsel should force
AVG to continue incurring over $2,000 a day in damages.
78
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
- 78 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47Because trial was set to begin, the court observed that 35
jurors had been called “at great expense to the county.” And
AVG had in attendance its chief financial officer, its chief oper-
ating officer, and an expert witness. The court asked AVG’s
attorneys: “[I]n the last, say, five days, what have you incurred
in travel expenses, witness — expert witnesses, your time?
Just a ballpark estimate. Twenty thousand, 25,000?” One attor-
ney responded that $25,000 “was what was in my head,” and
the other stated, “I think that sounds fair from what they’ve
told me.”
The court inquired whether Genesis was prepared to “pay a
substantial sanction, which would include, at a minimum, all of
[AVG’s] costs, travel costs, preparation costs, our juror costs,
[and] their expert witness costs” if the court continued the trial.
Counsel responded that if the court so ordered, he believed
Genesis would pay.
The court sustained the motion to continue. The court cau-
tioned that Genesis would have to pay for substantial costs
incurred as a result:
The sanction’s going to consist of our cost of jurors,
[c]ounsel’s time — all three of them — their travel
expenses, their prep time over the last four or five days,
their client’s travel time and their time that they’re here,
and I’d like an affidavit, if you would, to that effect. If
necessary, I’ll — we can conduct a telephonic hearing on
it. But, please, include all your related costs, prep costs,
expert witness costs for being here. You know, not that
unusual to have prep time for any trial, but specifically
the prep time in the last four or five days, the time we
spent at this hearing, the time we spent on Thursday, and
— because I anticipate it’s going to be very significant.
Attorney Gregory M. Bordo submitted an affidavit setting
forth AVG’s expenses. He averred that his hourly rate was
$550 and that cocounsel’s rate was $475 per hour. Their attor-
ney fees for January 29 through February 4, 2019, amounted
to $42,780, and their travel and lodging expenses were
- 79 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47$2,878.66. AVG’s local counsel charged $450 per hour, and
he billed $5,556.78 for those 5 business days. AVG incurred
fees of $4,500 for its expert’s services during that time. Bordo
asserted that the value of AVG’s chief operating officer’s time
to prepare and appear at trial was $6,375 and that his travel
and lodging expenses were $1,212.40. Bordo averred that
the value of AVG’s chief financial officer’s time to prepare
and appear at trial was $4,750 and that her travel and lodg-
ing expenses were $1,126.35. Thus, Bordo requested fees and
costs of $69,179.19.
The court’s February 13, 2019, order recounted that it heard
the renewed motion to continue on an expedited basis on
February 4—the first day of the scheduled jury trial—while
summoned jurors were in the courthouse awaiting trial to begin.
The order stated that on February 7, AVG submitted Bordo’s
affidavit with exhibits demonstrating a total of $69,179.19 in
costs and fees incurred by AVG from January 29 to February 4
in preparation for the scheduled trial. The order recited that as
of February 12, it had received no opposition from Genesis. It
ordered Genesis to pay for AVG’s fees and costs in the amount
of $69,179.19.
A week later, Genesis filed a motion to alter or amend the
order. Among other things, Genesis requested that Bordo’s
affidavit be stricken because it did not contain a proper jurat
showing that Bordo was sworn and because it was not marked
and offered at a hearing on the record at which Genesis could
object and be heard. Alternatively, Genesis asked that the court
reduce the award to take into account the reasonable local
hourly rate of lawyers practicing in Douglas County, to include
the expense of only one out-of-state lawyer, and to eliminate
compensation of AVG’s personnel.
The court held a hearing on the motion to reconsider the
sanctions. AVG offered Bordo’s affidavit into evidence, Genesis
objected, and the court reserved ruling.
Nine days after the hearing, Genesis filed objections to
Bordo’s affidavit. It objected that the jurat did not recite that
- 80 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47the affidavit was duly sworn to by the party making the same.
The document further set forth numerous specific objections to
parts of the affidavit.
On March 13, 2019, the court overruled the motion to alter
or amend and the objections to Bordo’s affidavit. After quoting
its dialogue with Genesis’ counsel during the February 4, 2019,
hearing, the court stated:
The Court made it clear at the hearing on February 4 . . .
that [AVG] had no doubt incurred considerable expenses
in preparing for the trial in the previous four days, had
incurred considerable expenses to travel to Omaha from
Los Angeles, CA, with client representatives who were
necessary witnesses at trial, had incurred considerable
lodging expenses, and had retained an expert witness who
was present for trial. It would be inequitable for [AVG] to
have incurred these expenses to appear at trial as ordered
by the Court, only to have the trial continued because
[Genesis], on the eve of trial (which had been specially
set for more than six (6) months) fired its attorney for
reasons still largely unknown. The Court does not believe,
under the circumstances presented, that failure to continue
the trial would have been an abuse of discretion.
The court explained that it did not use local rates in its award
of attorney fees because, consistent with its stated intention
during the February 4 colloquy, it awarded AVG its actual fees,
costs, and expenses. The court also clarified that although it
had referred to the award as a “‘sanction,’” it was not one:
“The Court was not sanctioning [Genesis]—this was an equi-
table award to [AVG] for doing what the Court ordered—be
prepared for trial, and appear at the trial, on February 4, 2019.
[AVG] should not be penalized for [Genesis’] last minute firing
of its attorney.”
On June 18, 2019, the court entered an order addressing,
among other things, pretrial motions. With respect to Bordo’s
affidavit, the court recognized Genesis’ lengthy objection filed
on March 7 but stated that “[h]aving submitted the matter to
- 81 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47the Court on February 26, 2019, the Court sustained the objec-
tion to [Genesis’] objections . . .” and received the exhibit.
(b) Discussion
(i) Jurisdiction
[33-35] We quickly dispose of Genesis’ first argument.
It claims that the court lacked subject matter jurisdiction to
award sanctions. A district court, as a court of general juris-
diction, has inherent power to do all things necessary for the
proper administration of justice and equity within the scope
of its jurisdiction. 79 Trial judges are encouraged to implement
firm, consistent procedures for minimizing continuances to
meet case progression standards. 80 And a trial judge has broad
discretion over the conduct of a trial. 81 As the court clarified,
its so-called “sanction” was an equitable award. Through its
inherent authority, the court possessed the power to make such
an award.
(ii) Lack of Hearing
on Amount
Genesis next faults the court for not holding a de novo hear-
ing on the amount of the award. It cites no authority to support
entitlement to such a hearing. As recounted above, the court
asked AVG to submit an affidavit setting forth the expenses
it incurred in connection with its trial preparation over the
days before the original trial date and stated that “[i]f neces-
sary, . . . we can conduct a telephonic hearing on it.” Genesis
did not request a hearing at the time; nor did it ask for time to
respond. Bordo submitted his affidavit on February 7, 2019,
and when the court entered its order on February 13, it had
heard no opposition from Genesis.
79
See Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762, 336 N.W.2d
312 (1983).
80
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017), citing Neb.
Ct. R. § 6-101(B)(5) (rev. 2013).
81
Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).
- 82 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47Despite Genesis’ inaction prior to the February 13, 2019,
order, the court provided Genesis an opportunity to respond
to the reasonableness of the expenses claimed by AVG. The
court stated that there would not be a “trial” on the matter and
that it could be done by affidavit. Genesis’ counsel agreed that
“typically these are done on affidavit,” adding that “there’s no
use making this more painful.” The court then allowed Genesis
7 days to submit any affidavits and any objections to Bordo’s
affidavit. Here, the court afforded Genesis with a means to be
heard regarding the reasonableness of AVG’s claimed expenses
and considered Genesis’ response. No more was required.
(iii) Objections to Bordo Affidavit
a. Specific Objections
Genesis argues that the court failed to consider the myriad
specific objections it directed to the affidavit. The court’s order
stated that it overruled Genesis’ objection to Bordo’s affidavit
and received it as an exhibit. As Genesis correctly observes,
the order did not specifically reference Genesis’ numerous spe-
cific objections and instead added only that Bordo’s affidavit
met the criteria set out in Johnson v. Neth. 82
At a later hearing, the court stated that it “overruled [Genesis’]
objections” in the earlier order. It inquired of Genesis’ counsel,
“[W]hat you’re asking me to do is make a specific ruling on
each objection you made . . . ?” Counsel responded: “Right. Or
it could be a general denial.” The court stated it would “take a
look,” but added, “[M]y intent was, based on what I had at the
time of the February 27th hearing in preparation to issue the
March 13th order, I generally overruled any objection . . . .” In
a posttrial motion, Genesis asserted that the court erred in fail-
ing to rule on each specific objection to Bordo’s affidavit. The
court overruled the motion.
Genesis has not cited any authority requiring the court to
specifically address the merits of each objection to an exhibit.
82
Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).
- 83 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47By receiving the affidavit and holding firm to that ruling,
the court essentially overruled every objection to the exhibit.
We see no abuse of discretion. The court’s ruling preserved
Genesis’ opportunity to appeal from the evidentiary rulings;
but Genesis has not assigned and argued error in those rulings
except regarding the sufficiency of the certification of an oath
or affirmation.
b. Jurat
[36] Genesis’ other argument is directed to the jurat of the
affidavit. Under Nebraska law, an affidavit is one mode by
which testimony of a witness may be taken. 83 As defined by
statute, “[a]n affidavit is a written declaration under oath, made
without notice to the adverse party.” 84 Oaths and affirmations
may be administered by notaries public. 85 In connection with
an affidavit, a notary public completes a certificate, known
as a jurat, which confirms that the affiant appeared before the
notary, attested to the truth of his or her statements, and signed
the affidavit. 86 The certificate of a notary public to an affidavit
is presumptive evidence of the facts stated in such certificate,
including the statement that affiant signed the affidavit. 87 The
customary form of a jurat has long been understood. 88 It differs
from an acknowledgment.
Bordo executed his affidavit in California. Under Neb.
Rev. Stat. § 25-1245 (Reissue 2016) and Neb. Ct. R. Disc.
§ 6-328(b), an affidavit may be used in support of a motion
in a court of this state if the affidavit is made and authenti-
cated, out of state, before a person authorized to administer
83
See Neb. Rev. Stat. § 25-1240 (Reissue 2016).
84
Neb. Rev. Stat. § 25-1241 (Reissue 2016).
85
Neb. Rev. Stat. § 64-107.01 (Reissue 2018).
86
See In re Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006).
87
Smith v. Johnson, 43 Neb. 754, 62 N.W. 217 (1895).
88
See 1 Winsor C. Moore, Nebraska Practice § 539 (1964) (including both
short form and long form).
- 84 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47oaths in the place where the affidavit is made. 89 Attached to
the affidavit was an “[a]cknowledgment,” in the form autho-
rized by California law, 90 which stated that Bordo “personally
appeared” before the notary public. In a certificate of acknowl-
edgment under California law, the notary public certifies that
the signer acknowledged executing the document. 91 Like in
Nebraska, a notary public in California is authorized by law to
administer oaths. 92 In a jurat under California law, the notary
public certifies that the signer signed the document in the pres-
ence of the notary public and that the notary public adminis-
tered an oath or affirmation. 93 A California court has said that
an “acknowledgment appearing at the end of the document
reciting only that [an individual] appeared before a notary pub-
lic ‘and acknowledged that she executed the same’ is not in any
sense the equivalent of a jurat or of a verification.” 94
Genesis points out that the jurat did not recite that the
affidavit was duly sworn to by the party making it. The affi-
davit began by stating that “Bordo, being first duly sworn,
deposes and states as follows . . . .” And the acknowledgment
was signed by a notary public. The notary public signed the
acknowledgment under penalty of perjury and affixed her
notarial seal.
[37,38] But we have stated that the fact that an affiant
signed an affidavit in the presence of a notary and that the
affiant’s signature was in fact notarized is sufficient as an oath
or affirmation. 95 Unless required by statute, an omission in a
89
See In re Interest of Fedalina G., supra note 86.
90
See Cal. Civ. Code § 1189 (West 2019).
91
Id.92
See Cal. Civ. Proc. Code § 2093(a) (West 2019).
93
See Cal. Gov’t Code § 8202 (West 2015).
94
Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles Cty.,
255 Cal. App. 2d 883, 888, 63 Cal. Rptr. 618, 621 (1967).
95
See Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747
N.W.2d 924 (2008).
- 85 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47jurat that an affidavit was sworn to will not be fatal if the
fact otherwise appears. 96 Here, the affidavit states on its face
that it was sworn, and it was signed before an official autho-
rized to administer oaths. Although the affidavit was irregular
in the sense that an acknowledgment rather than a jurat was
attached, Genesis suffered no prejudice. As set forth earlier,
the admission of evidence in a civil case is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing ­party. 97 There is no reversible error here.
While the confusion associated with the distinctions
between forms of notarial acts is not prejudicial, it is easily
avoidable. A notary public or other authorized officer should
use a traditional jurat (long or short) to certify the administra-
tion of an oath or affirmation and employ an acknowledgment
for documents requiring that type of proof. Both are types
of notarial acts, “which the laws and regulations of this state
authorize notaries public of this state to perform, including
the administering of oaths and affirmations, taking proof of
execution and acknowledgments of instruments, and attesting
documents.” 98 An acknowledgment is the act by which a party
who has executed an instrument goes before a competent offi-
cer and declares or acknowledges the same as his or her genu-
ine and voluntary act and deed. 99 A statute defines the words
typically used in the customary short form of an acknowl-
edgment. 100 Acknowledgments are employed mainly in con-
nection with transactions involving real estate, 101 wills, 102
96
2A C.J.S. Affidavits § 31 (2013).
97
See Weyh v. Gottsch, supra note 11.
98
Neb. Rev. Stat. § 64-201 (Reissue 2018).
99
McCauley v. Stewart, 177 Neb. 759, 131 N.W.2d 174 (1964). See, also, 1
Moore, supra note 88, § 121.
100
See Neb. Rev. Stat. § 64-205 (Reissue 2018).
101
See, e.g., Neb. Rev. Stat. §§ 40-104 (Reissue 2016) and 76-203 through
76-205, 76-211, 76-216, 76-235, and 76-241 (Reissue 2018).
102
See, e.g., Neb. Rev. Stat. § 30-2329 (Reissue 2016).
- 86 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47powers of attorney, 103 and establishment of a filial relation-
ship. 104 Adding to this confusion is the largely historical form
of an affidavit described as a verification. Prior to 1969, 105
every pleading of fact in a civil action had to be verified by
the affidavit of the party, his or her agent, or attorney. 106 In
most instances, it was sufficient if the affidavit stated that the
affiant believed the facts stated in the pleading to be true. 107
In some situations, however, the pleading was required to be
“positively verified, and a verification based upon mere belief
[was] inadequate.” 108 The form for a positive verification 109
ended with the word “true,” 110 thereby omitting the words “as
he believes” used at the end of the usual verification form. 111
Either version, being a type of affidavit, was followed by
the jurat of the officer administering the oath (and not by
an acknowledgment). 112 Here, the question could have been
avoided by adherence to well-settled and understood lan-
guage. As Winston Churchill is reputed to have said: Broadly
speaking, the short words are the best, and the old words best
of all.
(iv) Amount of Award
[39] Finally, Genesis argues that the court abused its discre-
tion in awarding AVG $69,179.19. A court abuses its discretion
103
See, e.g., Neb. Rev. Stat. § 30-4005 (Reissue 2016).
104
See, e.g., Neb. Rev. Stat. §§ 43-1408.01 and 43-1409 (Reissue 2016).
105
See 1969 Neb. Laws, L.B. 375.
106
See Neb. Rev. Stat. § 25-824 (1943).
107
See, Neb. Rev. Stat. § 25-827 (1943); Harden v. A. & N. R. R., 4 Neb. 521(1876).
108
State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426, 429, 329
N.W.2d 358, 360 (1983).
109
See 7 Winsor C. Moore, Nebraska Practice § 5813 (1967).
110
Id.
111
Id., § 5805.
112
Id., §§ 5805 and 5813.
- 87 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 47when its decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. 113 As we have previously
observed, “[t]his is a fairly deferential standard.” 114
Genesis challenges the amount of the awards for AVG’s
chief financial officer and chief operating officer, asserting that
any reimbursement should be based on statutory witness fees.
It further contends that the court abused its discretion in award-
ing the attorneys their hourly rate and that a reasonable hourly
rate would be the local hourly rate.
Before agreeing to grant a continuance, the court made clear
that it would award AVG its actual expenses. In other words,
payment of those expenses was a condition required to obtain
the continuance. The court cogently explained that “[i]t would
be inequitable for [AVG] to have incurred these expenses to
appear at trial as ordered by the Court, only to have the trial
continued because [Genesis], on the eve of trial . . . fired its
attorney for reasons still largely unknown.” To award AVG
only a statutory witness fee or an Omaha attorney’s prevailing
hourly rate would frustrate the purpose of the award.
The record does not show that the court rendered its award
for any reasons that were untenable or unreasonable. Rather,
“the record reflects that the court carefully considered its
decision and sought to achieve a balanced outcome for both
parties.” 115 The court’s decision allowed Genesis the continu-
ance it desired for new counsel to prepare for trial, and it reim-
bursed AVG for its expenses incurred to be present and ready
for the scheduled trial. Although the court’s award was sub-
stantial, it represented the significant costs that AVG suffered.
Under the circumstances, the court’s award was not untenable
or unreasonable.
113
See Putnam v. Scherbring, supra note 80.
114
Id. at 878, 902 N.W.2d at 146.
115
Id. at 878, 902 N.W.2d at 147.
- 88 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
AVG PARTNERS I v. GENESIS HEALTH CLUBS
Cite as 307 Neb. 476. AVG’s Cross-Appeal
[40] On cross-appeal, AVG assigns that the court erred in
sustaining Genesis’ hearsay objection to exhibit 132, a 2017
Delaware lawsuit that 24 Hour Fitness USA filed against
Genesis Health Clubs of Midwest. Because we are affirming
the judgment in AVG’s favor, we need not resolve this issue.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 116
VI. CONCLUSION
As landlord, AVG had standing in this action for breach
of written leases and was not required to produce the actual
assignment of the leases in order to prevail. We find no error
in the award of prejudgment interest under § 45-104 or in the
special verdicts awarding late fees associated with tardy rent
payments and penalties in the form of interest and advertis-
ing in connection with delinquent property taxes. Further, the
court had inherent authority to award AVG its actual expenses
as a condition of sustaining Genesis’ motion for continuance
of trial. Finding no abuse of discretion or reversible error in
any of the respects alleged, we affirm the judgment of the dis-
trict court.
Affirmed.
Miller-Lerman, J., not participating.
116
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).