Gary's Implement v. Bridgeport Tractor Parts

Gary’s I mplement, I nc., appellant and cross -appellee ,
v. BrIdGeport tractor parts , I nc., formerly
known as Gary’s tractor parts , I nc.,
appellee and cross -appellant.
799 N.W.2d 249
Filed April 1, 2011. 	No. S-10-122.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
2. Expert Witnesses: Testimony: Appeal and Error. An appellate court reviews
for abuse of discretion a trial court’s decision whether to admit or exclude an
expert’s testimony under the appropriate standards.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
4. Restitution. Restitution is not a mere right. It is ex gratia, resting in the exercise
of a sound discretion, and the court will not order it where the justice of the case
does not call for it.
5. Breach of Contract: Damages. In a breach of contract case, the ultimate objec-
tive of a damages award is to put the injured party in the same position the
injured party would have occupied if the contract had been performed, that is, to
make the injured party whole.
6. ____: ____. One injured by a breach of contract is entitled to recover all its
damages, including the gains prevented as well as the losses sustained, provided
the damages are reasonably certain and such as might be expected to follow
the breach.
7. Damages: Proof. While damages need not be proved with mathematical certainty,
neither can they be established by evidence which is speculative and conjectural.
8. Jury Instructions: Appeal and Error. Jury instructions do not constitute preju-
dicial error if, taken as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings and evidence.
9. Jury Instructions. The instructions contained in the Nebraska Jury Instructions
are designed to be used when they reflect the law and the pleadings and the evi-
dence call for such an instruction.
10. Contracts: Damages. The measure of damages in an action for the breach of
an agreement by the seller not to reenter business in competition with the buyer
is usually difficult of exact computation; however, an injured party will not be
precluded from recovering because of that fact.
11. Expert Witnesses. Expert testimony should not be received if it appears that the
witness is not in possession of such facts as will enable the expert to express a
reasonably accurate conclusion, and where the opinion is based on facts shown
not to be true, the opinion lacks probative value. The opinion must have a suf-
ficient factual basis so that the opinion is not mere conjecture or guess.
12. Expert Witnesses: Proof: Juries. When an assumption used by an expert is not
proved untrue or to be without any basis in fact, whether the stated grounds for
the assumption are credible is a jury question.
gARy’S ImplEmENT v. bRIdgEpORT TRAcTOR pARTS 	281
cite as 281 Neb. 281
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

13. Expert Witnesses: Appeal and Error. An appellate court is not a superexpert
and will not lay down categorically which factors and principles an expert may
or may not consider. Such matters go to the weight and credibility of the opinion
itself and not to its admissibility.
14. Restitution. The right of restitution may be enforced by proceedings in the lower
court in the same cause, or by an independent action or suit.
15. ____. It is the duty of the court to compel restitution upon the reversal of a judg-
ment which has been executed; however, restitution is not in all cases a matter of
absolute right.
Appeal from the district court for morrill county: leo
doBrovolny, Judge. Affirmed.
Howard p. Olsen, Jr., Steven W. Olsen, and John F. Simmons,
of Simmons Olsen law Firm, p.c., for appellant.
david A. domina, of domina law group, p.c., l.l.O., for
appellee.
H eavIcan, 	c.J., 	wrIGHt, 	connolly, 	G errard, 	stepHan,
mccormack, and mIller-lerman, JJ.
mccormack, J.
I. NATURE OF cASE
gary’s Implement, Inc., appeals the judgment in favor of
bridgeport Tractor parts, Inc. (bridgeport Tractor), in the
amount of $1,250,000. bridgeport Tractor cross-appeals the
denial of its motion for restitution. The issues on appeal are
whether the district court properly admitted the testimony of
a particular expert; whether the court properly instructed the
jury on the issue of damages; and whether bridgeport Tractor
is entitled to recover sums allegedly paid in execution of the
original judgment, which was subsequently reversed. For the
following reasons, we affirm.
II. bAckgROUNd
1. procedural BackGround
This appeal follows the second trial in this matter. The dis-
pute arose from transactions related to the sale of a business
by gary’s Implement to bridgeport Tractor. On July 15, 1998,
gary’s Implement entered into a contract to sell its “salvage
and used parts business” to bridgeport Tractor. The contract
was accompanied by a noncompetition agreement. The contract
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which embodies this sale is made up of the agreement, the
promissory note, the noncompetition agreement, and the bill
of sale. pursuant to the agreement, bridgeport Tractor pur-
chased the equipment, inventory, and all goodwill and other
intangible assets of the business. The agreement called for
periodic payments by bridgeport Tractor over a period of 5
years. The noncompetition agreement provided that gary’s
Implement was prohibited from engaging in “the agricultural
and machinery salvage and used, new or rebuilt agricultural
parts business” within 150 miles of bridgeport, Nebraska, for
a period of 5 years. The noncompetition agreement expired on
July 15, 2003.
(a) Original Trial
After executing the contract, bridgeport Tractor became
concerned that gary’s Implement was engaging in competi-
tive activity by salvaging and selling used parts, by compet-
ing with bridgeport Tractor for the supply of salvage tractors
and machinery, and by trading on the goodwill that gary’s
Implement had sold to bridgeport Tractor. bridgeport Tractor
demanded this activity cease. After determining that gary’s
Implement refused to do so, bridgeport Tractor deemed the
noncompetition agreement and the agreement to sell goodwill
breached, and chose to stop payments to gary’s Implement.
gary’s Implement ultimately sued for the balance due under
the contract, and bridgeport Tractor counterclaimed, seek-
ing damages for breach of the noncompetition agreement.
The jury returned a verdict in favor of gary’s Implement,
finding that bridgeport Tractor, not gary’s Implement, had
breached the contract. The district court entered judgment
in favor of gary’s Implement and against bridgeport Tractor
pursuant to the remaining amounts due under the contract:
$612,225 on the promissory note and $20,000 on the noncom-
petition agreement.
bridgeport 	Tractor 	appealed. 	In 	Gary’s 	Implement 	v.
Bridgeport Tractor Parts (Gary’s I),1 we reversed, and remanded
for a new trial on bridgeport Tractor’s counterclaim for breach
1 Gary’s Implement v. Bridgeport Tractor Parts, 270 Neb. 286, 702 N.W.2d
355 (2005).
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cite as 281 Neb. 281

of the noncompetition agreement. We concluded that the district
court committed prejudicial error when it instructed the jury as
to the meaning of certain provisions within the agreement,
because the agreement was ambiguous and its interpretation
was, accordingly, a question of fact. We further determined the
promissory note representing the sale of goodwill to bridgeport
Tractor was inextricably intertwined with gary’s Implement’s
agreement not to compete. Thus, we also reversed the jury’s
verdict on gary’s Implement’s counterclaim, and the issue of
damages under the promissory note was again submitted to the
jury upon retrial.
(b) Order in Aid of Execution
prior to our reversal of the original judgment, while the
appeal by bridgeport Tractor was pending, the district court
issued an order granting a motion in aid of execution filed
by gary’s Implement. The order imposed sanctions against
bridgeport Tractor for bad faith for having filed a chapter 11
bankruptcy case, which the district court concluded was “for
the sole and only purpose of frustrating [the] efforts [of gary’s
Implement] to collect and enforce its judgment.” The order also
directed bridgeport Tractor to “cease and desist” from making
any transfers or sales of personal property from its salvage yard
outside the ordinary course of business. After our decision in
Gary’s I, we considered an appeal from the order granting the
motion in aid of execution. In Gary’s Implement v. Bridgeport
Tractor Parts (Gary’s II),2 we reversed the order, noting that,
generally, an order, judgment, or proceeding dependent on, or
ancillary and accessory to, a judgment, order, or decree that is
reversed shares its fate and falls with it.
2. remand
(a) Hearing on Restitution
Upon remand, bridgeport Tractor filed a motion for restitu-
tion in morrill county district court on January 17, 2006. In
2 Gary’s Implement v. Bridgeport Tractor Parts, 270 Neb. 337, 701 N.W.2d
367 (2005) (citing Upah v. Ancona Bros. Co., 246 Neb. 608, 521 N.W.2d
906 (1994), and Luschen Bldg. Assn. v. Fleming Cos., 226 Neb. 840, 415
N.W.2d 453 (1987)).
284 	281 NEbRASkA REpORTS

its motion, bridgeport Tractor requested gary’s Implement
make restitution of sums paid at a trustee’s sale, alleging such
sums were paid pursuant to the original judgment in favor
of gary’s Implement which was subsequently reversed. This
motion was based on events which transpired after the initial
judgment was entered, but prior to our decisions in Gary’s I3
and Gary’s II.4
On July 15, 1998, david dyke, then president of bridgeport
Tractor, purchased real estate from gary’s Implement. To
secure the purchase price, dyke gave a deed of trust, wherein
gary’s Implement was named as the beneficiary/lender. Neither
the deed of trust nor the real estate agreements indicate that
dyke was acting on behalf of bridgeport Tractor. However,
the deed of trust recited that the deed was executed for the
purpose of securing the “obligations . . . payable by borrower
to lender” under a noncompetition agreement and a promis-
sory note of the same date. bridgeport Tractor and gary’s
Implement’s agreements, as described above, were executed on
July 15, 1998.
The deed of trust included a provision prohibiting the trans-
fer of the real estate without gary’s Implement’s written con-
sent. It stated:
Trustor [dyke] shall not sell, transfer, or otherwise convey
in any manner all or any part of the Trust Estate or inter-
est in it without lender’s [gary’s Implement’s] prior writ-
ten consent. . . . If a sale, transfer or conveyance occurs,
lender [gary’s Implement] may declare all sums secured
by this deed of Trust to be immediately due and payable,
and/or cause Trustee to file a notice of default.
Judgment was entered against bridgeport Tractor in the orig-
inal trial on July 22, 2003, and dyke transferred the real estate
to bridgeport Tractor on August 1. Thereafter, bridgeport
Tractor filed a petition for chapter 11 bankruptcy in South
dakota. The South dakota bankruptcy court determined that
the petition was not filed in good faith. The bankruptcy court
noted that dyke acknowledged that he conveyed the real estate
3 Gary’s I, supra note 1.
4 Gary’s II, supra note 2.
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cite as 281 Neb. 281

to bridgeport Tractor to avoid losing the property to gary’s
Implement and that he was aware this was prohibited under
the deed of trust. The bankruptcy case was dismissed on April
2, 2004.
In April 2004, gary’s Implement sent dyke a notice of
trustee sale under the July 15, 1998, deed of trust. gary’s
Implement held a trustee’s sale on may 18, 2004, pursuant to
the power of sale in the deed of trust. The only bidders at the
sale were gary’s Implement and dyke. dyke made the final
bid of $476,000, which was accepted. The trustee executed and
delivered to dyke a trustee’s deed to the real estate. gary’s
Implement retains the funds from the sale.
In its 2006 motion for restitution, bridgeport Tractor sought
$476,000 in restitution, plus interest, and asserted that gary’s
Implement was unjustly enriched based on our holdings in
Gary’s I5 and Gary’s II.6 bridgeport Tractor argued that the
funds paid to gary’s Implement were transferred as partial
satisfaction of the money judgment ordered at the original
trial, as opposed to an independent transaction related to the
real estate alone. because our holdings vacated that original
judgment, bridgeport Tractor argued it was entitled to restitu-
tion. gary’s Implement filed a brief in opposition to the motion
for restitution and asserted that the sale of the real estate from
dyke to bridgeport Tractor had violated the terms of the deed
of trust under the transfer of property provision. The trustee’s
sale, gary’s Implement argued, was based on this violation
of the deed of trust and was independent of our reversal of
the original judgment. gary’s Implement also asserted that
bridgeport Tractor was not entitled to restitution under the
maxim of unclean hands, based on the bankruptcy court’s
determination that bridgeport Tractor’s purchase of the prop-
erty and its subsequent bankruptcy petition were “primarily
motivated by insider . . . dyke’s desire to place the realty under
the protection of a bankruptcy stay.” The district court over-
ruled bridgeport Tractor’s 2006 motion for restitution. In deny-
ing restitution, the court noted that gary’s Implement had the
5 Gary’s I, supra note 1.
6 Gary’s II, supra note 2.
286 	281 NEbRASkA REpORTS

right to foreclose on the deed of trust because of the improper
transfer and that, at that point in time, bridgeport Tractor “had
unclean hands.”
prior to retrial on the contract issues, the case was trans-
ferred to another judge of the district court. On July 27, 2009,
bridgeport Tractor again filed a “motion for Restitution of
Sums paid at Void Execution Sale.” A hearing was held on
the motion on October 19. At the hearing, gary’s Implement
argued that the motion was in essence a motion for recon-
sideration and could not be considered by the court because
it was untimely under Neb. Rev. Stat. § 25-2001(1) (Reissue
2008). Neither party presented facts or arguments contrary or
supplemental to those presented with the 2006 motion. The
motion was taken under advisement. After retrial, the district
court denied restitution. In the court’s order, it was noted that
no authority was shown to support reconsideration of the previ-
ous ruling on the 2006 motion. Further, the court stated that the
restitution issue was the subject of a separate lawsuit. The facts
surrounding bridgeport Tractor’s motion for restitution will be
explored more fully in our analysis below.
(b) Retrial
On retrial, the jury resolved the ambiguities in the contract
in favor of bridgeport Tractor. It rejected gary’s Implement’s
claim and found in favor of bridgeport Tractor’s counterclaim.
The jury awarded bridgeport Tractor $1,250,000 in damages.
John Wenande, a certified public accountant and financial
planner accredited in business valuation, testified at trial that
he was employed to determine whether gary’s Implement’s
competitive activities had damaged bridgeport Tractor and, if
so, to what extent. Wenande described the analytical steps he
took to form his opinion: (1) gather financial information, (2)
summarize the financial information, (3) consider available
methods for analysis that could be applied to determine and
calculate an economic loss, (4) apply the methods to determine
a range of loss, and (5) calculate the loss.
In analyzing this case, Wenande gathered financial state-
ments and tax returns of both gary’s Implement and bridgeport
Tractor, financial statements of chosen comparable companies,
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cite as 281 Neb. 281

copies of the underlying agreements, depositions related to
the facts of the case, and interviews with dyke’s son, who is
the current president of bridgeport Tractor. Wenande reviewed
bridgeport Tractor’s income and expenses over a time period
running from 1999 through 2007. gary’s Implement objected
numerous times to the admission of Wenande’s opinions on the
basis of foundation and relevance. gary’s Implement asserted
that Wenande’s conclusions lacked foundation because they
were based on impermissible assumptions and because the com-
parables utilized in his methodology were not sufficiently com-
parable. The court initially sustained objections to Wenande’s
calculation of the amount of loss suffered by bridgeport Tractor
and to his opinion as to the cause of that loss. After further
testimony, however, Wenande was ultimately allowed to tes-
tify that in his opinion, the range of loss bridgeport Tractor
suffered as a result of gary’s Implement’s competition was
$1,395,000 to $1,521,000. The details of Wenande’s testimony
will be discussed in more detail below.
prior to submitting the case to the jury, the court overruled
gary’s Implement’s objection to jury instruction No. 7, which
pertained to damages. It states:
If you find in favor of defendant [bridgeport Tractor]
on defendant’s counterclaim, you must decide how much
money will fairly compensate defendant for the damage
which it has sustained. defendant is entitled to recover
the reasonable value of the profits it has lost.
Remember, throughout your deliberations you must not
engage in any speculation, guess, or conjecture and you
must not award any damages by way of punishment or
through sympathy.
The jury found in favor of bridgeport Tractor on its counter-
claim. pursuant to the jury’s verdict, the court entered judgment
in favor of bridgeport Tractor in the amount of $1,250,000.
III. ASSIgNmENTS OF ERROR
gary’s Implement assigns that the district court erred in
(1) giving instruction No. 7 to the jury and (2) receiving
the opinion testimony of Wenande. bridgeport Tractor cross-
appeals and assigns that the district court erred in (1) denying
288 	281 NEbRASkA REpORTS

bridgeport Tractor’s motion for restitution and (2) failing to
award interest on the amount for which restitution is alleg-
edly proper.
IV. STANdARd OF REVIEW
[1] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.7
[2,3] An appellate court reviews for abuse of discretion a
trial court’s decision whether to admit or exclude an expert’s
testimony under the appropriate standards.8 A judicial abuse
of discretion exists when reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying just results in matters submitted
for disposition.9
[4] Restitution is not a mere right.10 It is ex gratia, resting in
the exercise of a sound discretion, and the court will not order
it where the justice of the case does not call for it.11
V. ANAlySIS
1. damaGes
[5-7] In a breach of contract case, the ultimate objective of
a damages award is to put the injured party in the same posi-
tion the injured party would have occupied if the contract had
been performed, that is, to make the injured party whole.12
One injured by a breach of contract is entitled to recover all
its damages, including the gains prevented as well as the losses
sustained, provided the damages are reasonably certain and
such as might be expected to follow the breach.13 While dam-
ages need not be proved with mathematical certainty, neither
7 Sinsel v. Olsen, 279 Neb. 38, 777 N.W.2d 54 (2009).
8 Tolliver v. Visiting Nurse Assn., 278 Neb. 532, 771 N.W.2d 908 (2009).
9 Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
10 Johnson v. Ruhl, 162 Neb. 330, 75 N.W.2d 717 (1956).
11 Id.
12 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008); Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472
(2001).
13 Id.
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cite as 281 Neb. 281

can they be established by evidence which is speculative and
conjectural.14
(a) Jury Instruction No. 7
gary’s Implement assigns that the district court erred in fail-
ing to impose a time limit on damages awarded to compensate
bridgeport Tractor for breach of the agreement not to compete.
gary’s Implement contends that the jury was entitled to award
damages only for the 5-year period contemplated in the agree-
ment, ending July 15, 2003. because there is no legal basis for
such limitation, we find no merit to gary’s Implement’s first
assignment of error.
[8] Jury instructions do not constitute prejudicial error if,
taken as a whole, they correctly state the law, are not mis-
leading, and adequately cover the issues supported by the
pleadings and evidence.15 The instructions in the present case
provided that the jury award only those damages proximately
caused by the breach complained of. Section 2.03 of jury
instruction No. 2 stated bridgeport Tractor was required to
establish the terms of the contracts and agreements and what
they meant, that gary’s Implement breached the noncompeti-
tion agreement, that this breach was a proximate cause of
some damage to bridgeport Tractor, and the nature and extent
of that damage. proximate cause is defined in jury instruction
No. 5.
[9] On the issue of damages, the court instructed the jury,
in relevant part: “If you find in favor of defendant [bridgeport
Tractor] on defendant’s counterclaim, you must decide how
much money will fairly compensate defendant for the dam-
age which it has sustained.” gary’s Implement objected to
this instruction at trial. The instruction was taken from the
Nebraska Jury Instructions.16 The instructions contained in the
Nebraska Jury Instructions are designed to be used when they
14 Aon Consulting v. Midlands Fin. Benefits, supra note 12; J.D. Warehouse
v. Lutz & Co., 263 Neb. 189, 639 N.W.2d 88 (2002).
15 Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).
16 NJI2d civ. 4.51.
290 	281 NEbRASkA REpORTS

reflect the law and the pleadings and the evidence call for such
an instruction.17
The noncompetition agreement at issue provided that gary’s
Implement would not compete with bridgeport Tractor, directly
or indirectly, for a period of 5 years from the closing date. The
date of closing was July 15, 1998; therefore, the agreement
expired on July 15, 2003. gary’s Implement argues that the
jury should have been instructed on this fact and that, without
such instruction, instruction No. 7 was misleading.
In contrast, bridgeport Tractor asserts that because the clos-
ing date was recited in the agreement itself and because the
jury had access to this agreement, the 5-year term was “overtly
included in the instructions given the jury.”18 bridgeport Tractor
argues that instruction No. 7, as set out above, was correct and
not misleading, because the jury was told to determine the
damages under the contract and the contract stated the time
period during which the noncompetition agreement applied.
The statement of the case instruction given by the court, jury
instruction No. 2, instructed that bridgeport Tractor claimed it
was damaged based on a breach of the noncompetition agree-
ment and sought judgment for those damages. bridgeport
Tractor argues that the noncompetition agreement contained
language stating the enforcement period of the contract and
that this was sufficient to avoid any confusion or speculation
by the jury. bridgeport Tractor also argues that the jury was
instructed to find only those damages which would “fairly
compensate” bridgeport Tractor and that it was reasonable to
conclude that gary’s Implement’s breach of the covenant not
to compete “so retarded [bridgeport Tractor] in the operation
of its business that its entire loss was not fully absorbed by the
end of five years, because the competition continued unfairly
until the end of the five-year period.”19
17 See, Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605
N.W.2d 782 (2000); Nguyen v. Rezac, 256 Neb. 458, 590 N.W.2d 375
(1999).
18 brief for appellee at 30.
19 Id. at 35.
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cite as 281 Neb. 281

[10] The measure of damages in an action for the breach of
an agreement by the seller not to reenter business in competi-
tion with the buyer is usually difficult of exact computation;
however, an injured party will not be precluded from recov-
ering because of that fact.20 The rule that lost profits from
a business are too speculative and conjectural to permit the
recovery of damages is not a hard and fast one, and loss of pro-
spective profits may nevertheless be recovered if the evidence
shows with reasonable certainty both the loss and the extent
thereof.21 Uncertainty as to the fact of whether any damages
were sustained at all is fatal to recovery, but uncertainty as to
the amount is not.22 If sufficient evidence is presented that it
clearly appears that a loss of profits was suffered, it is proper
to let the jury determine what the loss probably was from the
best evidence the nature of the case allows.23 Our law limits
recovery of lost profits only to the extent that they must not be
based on mere speculation or conjecture.
Once the issue of damages is properly submitted to a jury,
it is within the province of the jury to determine what amount
will reasonably compensate the injured party. There is no legal
basis for an instruction limiting the award of damages to the
time period specified in an agreement not to compete, so long
as the evidence provided establishes damages with reasonable
certainty. because the evidence supports instruction No. 7 and
because the jury instructions, taken as a whole, indicate that
the instructions correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and
evidence, we find no reversible error.
20 D. W. Trowbridge Ford, Inc. v. Galyen, 200 Neb. 103, 262 N.W.2d 442
(1978). cf. Quad-States, Inc. v. Vande Mheen, 220 Neb. 161, 368 N.W.2d
795 (1985).
21 See, Katskee v. Nevada Bob’s Golf of Neb., 238 Neb. 654, 472 N.W.2d 372
(1991); El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261
N.W.2d 358 (1978).
22 Id.
23 See, e.g., Ferrell Const. Co. v. Russell Creek Coal Co., 645 p.2d 1005
(Okla. 1982).
292 	281 NEbRASkA REpORTS

(b) Expert Testimony
The evidence which bridgeport Tractor presented in support
of its claim for damages consisted primarily of the opinion of
Wenande. Wenande is a certified public accountant and finan-
cial planner accredited in business valuation. gary’s Implement
assigns that the district court erred in receiving, over gary’s
Implement’s foundational objections, Wenande’s opinion tes-
timony with regard to lost profits. gary’s Implement argues
that the opinion testimony was improperly received, because
Wenande’s analysis covered the time period through 2007,
the comparable businesses used in his analysis were not suf-
ficiently similar, and his conclusions were not adequately justi-
fied because they were based on unexplained assumptions. We
review for abuse of discretion a trial court’s decision whether
to admit or exclude an expert’s testimony under the appropri-
ate standards.24
In arriving at his opinion on loss, Wenande testified that he
utilized the “yardstick” or “comparison” approach, which com-
pares the company’s income to that of a comparable company.
Wenande also considered the “but for” approach, which attempts
to make a reasonable determination of what a company’s profit-
ability would have been but for a certain event.
In 	applying 	the 	yardstick 	approach, 	Wenande 	meas-
ured bridgeport Tractor’s business against the business of
bridgeport Tractor’s sister stores, Wisconsin Tractor parts
and downing Tractor parts, both located in Wisconsin. based
on comparison of these companies, Wenande concluded that
the competitive activity engaged in by gary’s Implement led
to some loss of income. Wenande testified that the compari-
sons showed a deficiency of $1,845,000 between bridgeport
Tractor and Wisconsin Tractor parts, and a deficiency of
$1,742,000 between bridgeport Tractor and downing Tractor
parts. He explained that these deficiencies were calculated
by comparing the companies’ historical financial summaries,
including gross revenue, costs of sales, operating expenses,
and net income.
24 Tolliver v. Visiting Nurse Assn., supra note 8.
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cite as 281 Neb. 281

Wenande explained that he analyzed the financial informa-
tion of the comparable companies, looked at the comparison
of the financial results, and assumed the difference was due to
the acts of competition. To explain this assumption, Wenande
testified that because of the manner in which management
conducted operations, similarities in the industry, and expec-
tations for sales, the compared businesses should have per-
formed similarly.
When Wenande was asked to state his ultimate opinion about
whether the cause of loss was due to competition, the court
sustained gary’s Implement’s objection on foundation. After a
bench conference, Wenande provided more detail regarding the
comparable companies to support his conclusions, including
when the companies were acquired and the similar management
model and management teams. Wenande also explained that the
companies’ managers agreed that the operations were reason-
ably comparable for purposes of his calculation. Following this
testimony, Wenande was again asked to state the possible cause
of the losses suffered by bridgeport Tractor; gary’s Implement
interposed with an objection on foundation, which the court
sustained. Wenande then explained how possible causes other
than the acts of competition were ruled out through his analy-
sis. Ultimately, Wenande was allowed to testify, over gary’s
Implement’s objection, that he “found no evidence of anything
else that would have a proximate relationship to the difference
other than the issue of competition.”
Wenande also testified to his application of the “but for”
approach to determine possible loss. His analysis began with
a starting point of $1 million because gary’s Implement had
generated approximately that amount of revenue in 1996 and
1997. Next, Wenande looked at the average annual growth of
Wisconsin Tractor parts and downing Tractor parts, which
was approximately 7 percent over the period 1999 to 2002.
Wenande then calculated what the revenue for bridgeport
Tractor would have been, assuming an average growth of 7
percent a year. He then did a second calculation, assuming
a rate of annual growth at 10 percent. Wenande explained
that he used the rate of 10 percent because, through discus-
sions with bridgeport Tractor’s president, he learned that the
294 	281 NEbRASkA REpORTS

company was planning to implement a new business model
and that this model “could improve the growth of this store in
the future beyond the 7 percent.” To reach an ultimate opinion
on loss, Wenande testified, he considered the cost of operation
to come to a net figure representing the calculated loss. Over
gary’s Implement’s foundation objection, the court admitted
Wenande’s conclusion that the range of loss bridgeport Tractor
suffered as a result of gary’s Implement’s competition was
$1,395,000 to $1,521,000.
[11] Though gary’s Implement asserted numerous objec-
tions to Wenande’s testimony on the basis of foundation,
gary’s Implement does not contend that Wenande does not
qualify as an expert in the field or that his methodology is not
commonly accepted. Rather, gary’s Implement asserts that
Wenande’s testimony was not supported by adequate financial
data, that the data Wenande analyzed was inappropriate, that
the comparables utilized in forming his opinion were not truly
comparable, that the conclusions drawn from the comparable
analysis were not justified, and that Wenande made assump-
tions with no proper basis in fact to support his conclusion on
damages. These allegations focus on the facts and data relied
upon by Wenande, not his qualifications or the methodologies
which he employed.
Neb. Rev. Stat. § 27-703 (Reissue 2008) states:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible
in evidence.
In addition, we have said that expert testimony should not be
received if it appears the witness is not in possession of such
facts as will enable the expert to express a reasonably accurate
conclusion, and that where the opinion is based on facts shown
not to be true, the opinion lacks probative value.25 The opinion
25 Nebraska Nutrients v. Shepherd, supra note 12; Paulsen v. State, 249 Neb.
112, 541 N.W.2d 636 (1996).
gARy’S ImplEmENT v. bRIdgEpORT TRAcTOR pARTS 	295
cite as 281 Neb. 281

must have a sufficient factual basis so that the opinion is not
mere conjecture or guess.26
Our cases distinguish between the circumstance in which
an expert’s opinion on damages is based either upon a mis-
conception of the applicable law or upon factual assumptions
shown to be untrue or wholly unsupported by the record and
the circumstance where there is a factual weakness in the
underpinnings of an opinion.27 In the former, the opinion is
inadmissible, whereas in the latter, the opinion is admissible
and the factual weakness goes to the weight and credibility as
determined by the trier of fact.28
The record does not indicate that Wenande relied upon any
factual assumptions that have been shown to be untrue or that
are wholly unsupported by the record. It is arguable that factual
weaknesses in the underpinnings of the opinion exist insofar
as the comparables utilized by Wenande have distinguishing
characteristics, and the financial data he considered went out-
side the time period specified by the noncompetition agree-
ment. but such weaknesses go to the weight of his testimony,
not its admissibility. The jury was free to discount Wenande’s
conclusions if it found that the comparables were not truly
comparable or that his analysis did not conform to a specified
timeframe. These issues were appropriately examined to allow
the jury to make such a determination.
On cross-examination, Wenande acknowledged that the time
period covered by his analysis did not directly correspond with
the agreement not to compete. Wenande stated that he relied
on such data, but did not explain, and was not asked, how
this data was utilized. We will not assume Wenande used such
data improperly.
[12] Wenande also acknowledged that both comparable com-
panies had greater sales than those of bridgeport Tractor.
On direct examination, he explained that he considered the
different markets in which the comparable companies were
26 Id.
27 Nebraska Nutrients v. Shepherd, supra note 12.
28 Id.
296 	281 NEbRASkA REpORTS

situated. Wisconsin has a larger population and more farms
than Nebraska, while Nebraska farms tend to be larger than
Wisconsin farms. gary’s Implement argues that Wenande can-
not assume that the loss experienced by bridgeport Tractor
is attributable to gary’s Implement, because the comparables
were not comparable and the financial data considered was
from the wrong timeframe. but when an assumption used by an
expert is not proved untrue or to be without any basis in fact,
whether the stated grounds for the assumption are credible is a
jury question.29 Wenande’s assumptions, reliance on facts, and
ultimate conclusions were explored on cross-examination. And
gary’s Implement was free to attempt to discredit Wenande’s
conclusions through presentation of its own expert and argu-
ment to the jury. Once Wenande’s testimony was properly
submitted, the jury was free to give weight to his testimony in
determining an appropriate award of damages.
[13] gary’s Implement’s objections at trial and arguments
on appeal assert a challenge to the factors which Wenande
considered in forming his opinions. While recognizing the
principle that an expert’s opinion must have a sound and rea-
sonable basis such that an expert is able to express a reason-
ably accurate conclusion as distinguished from a mere guess
or conjecture, we have stated that an appellate court is not a
superexpert and will not lay down categorically which factors
and principles an expert may or may not consider.30 Such mat-
ters go to the weight and credibility of the opinion itself and
not to its admissibility.31 based upon our review of the record,
it appears that Wenande relied on an adequate factual basis to
form his opinion.
The admission of expert testimony is ordinarily within the
discretion of the trial court, and its ruling will be upheld absent
an abuse of discretion.32 We conclude that the district court did
29 See Little v. Gillette, 225 Neb. 70, 402 N.W.2d 852 (1987).
30 Nebraska Nutrients v. Shepherd, supra note 12.
31 Id.
32 See id.
gARy’S ImplEmENT v. bRIdgEpORT TRAcTOR pARTS 	297
cite as 281 Neb. 281

not err in receiving Wenande’s opinions regarding lost profits
over gary’s Implement’s objections.
2. BrIdGeport tractor’s motIon for restItutIon
bridgeport Tractor cross-appeals the denial of its motion
for restitution. bridgeport Tractor asserts that denial of the
motion for restitution was error because gary’s Implement still
holds the financial fruits of execution on a vacated judgment.
because restitution is not appropriate in the present case, we
affirm the district court’s denial of bridgeport Tractor’s motion
for restitution.
[14] The right to restitution as alleged in bridgeport Tractor’s
motion was long ago recognized in Nebraska.33 The right of
restitution may be enforced by proceedings in the lower court
in the same cause, or by an independent action or suit.34 While
it is true that bridgeport Tractor could have properly sought
restitution in a separate proceeding, the remedy pursued by
motion was appropriate. Where courts have concurrent jurisdic-
tion, the first to assume jurisdiction retains it to the exclusion
of the other.35 The relief sought in bridgeport Tractor’s motion
for restitution must be addressed on appeal in accordance
with the procedure by which it was originally brought. We
therefore address the merits of bridgeport Tractor’s motion for
restitution.
[15] The Restatement of Restitution defines the general rule
of restitution based on judgments subsequently reversed: “A
person who has conferred a benefit upon another in compliance
with a judgment, or whose property has been taken thereunder,
is entitled to restitution if the judgment is reversed or set aside,
unless restitution would be inequitable or the parties contract
33 See, Horton v. Hayden, 74 Neb. 339, 104 N.W. 757 (1905); State v.
Horton, 70 Neb. 334, 97 N.W. 434 (1903); Horton v. State, 63 Neb. 34, 88
N.W. 146 (1901); Hier v. Anheuser-Busch Brewing Ass’n, 60 Neb. 320, 83
N.W. 77 (1900).
34 See, Horton v. Hayden, supra note 33; Hier v. Anheuser-Busch Brewing
Ass’n, supra note 33. See, also, 5 c.J.S. Appeal and Error § 1162 (2007).
35 Susan L. v. Steven L., 273 Neb. 24, 729 N.W.2d 35 (2007).
298 	281 NEbRASkA REpORTS

that payment is to be final . . . .”36 It is the duty of the court
to compel restitution upon the reversal of a judgment which
has been executed.37 However, restitution is not in all cases
a matter of absolute right.38 Restitution may be denied where
the party in possession of the money or property in question
is equitably entitled to retain it39 or where the money has been
paid or property taken otherwise than in pursuance of the judg-
ment or decree which has been reversed.40 The court indicated
that bridgeport Tractor was not entitled to restitution, because
the sums paid were independent of the judgment reversed and
because the doctrine of unclean hands precluded recovery.
bridgeport Tractor contends that our opinion in Gary’s II
controls the issue of restitution, citing the rule that generally,
an order, judgment, or proceeding dependent on, or ancillary
and accessory to, a judgment, order, or decree that is reversed
shares its fate and falls with it.41 However, bridgeport Tractor
concedes that our previous opinions regarding the controversy
between these parties did not determine the issue of restitution.
Gary’s II therefore is not controlling. For this reason, it was
the duty of the district court, on bridgeport Tractor’s motion,
to determine whether this was a case in which restitution was
a matter of right or whether the case presented an exception to
the rule in which the court, in the exercise of sound discretion,
would not order restitution.42 This court has stated that restitu-
tion is not a mere right.43 It is ex gratia, resting in the exercise
of a sound discretion, and the court will not order it where the
36 Restatement of Restitution § 74 at 302-03 (1937).
37 Horton v. Hayden, supra note 33.
38 Id.
39 See, e.g., Gould v. McFall, 118 pa. 455, 12 A. 336 (1888).
40 See, e.g., Sanger Lum. Co. v. Western Lum. Exchange, 128 Wash. 335, 222
p. 609 (1924).
41 Gary’s II, supra note 2.
42 See State v. Horton, supra note 33. See, also, Bank of America, etc.,
v. McLaughlin, 37 cal. App. 2d 415, 99 p.2d 548 (1940); Healy v.
Wostenberg, et al., 47 Wyo. 375, 38 p.2d 325 (1934); Market Nat. Bk. of
N. Y. v. Pac. Nat. Bk., 102 N.y. 464, 7 N.E. 302 (1886).
43 Johnson v. Ruhl, supra note 10.
gARy’S ImplEmENT v. bRIdgEpORT TRAcTOR pARTS 	299
cite as 281 Neb. 281

justice of the case does not call for it.44 We therefore review
the district court’s denial of bridgeport Tractor’s motion for
restitution for an abuse of discretion.
bridgeport Tractor’s claim for restitution is necessarily con-
trolled by a deed of trust executed on July 15, 1998. The
deed of trust names dyke as trustor, an attorney as trustee,
and gary’s Implement as beneficiary/lender. At the time of
execution, dyke was a shareholder and president of bridgeport
Tractor. The motion for restitution seeks sums paid by dyke to
gary’s Implement at a trustee’s sale of the property described
in the deed of trust.
The deed of trust states that it was executed for the purpose
of securing “[p]ayment of the following obligations (collec-
tively the ‘Obligations’) payable by [bridgeport Tractor] to
[gary’s Implement]: A Non-competition Agreement of this
date[, July 15, 1998,] with a balance due of $25,000; and A
promissory Note of this date[, July 15, 1998,] in the principal
amount of $500,000 . . . .” It is clear that the above-referenced
obligations secured by the deed of trust were the subject of the
litigation below, and the original money judgment in favor of
gary’s Implement. However, it is not clear whether our reversal
of the original judgment defeated any other rights or obliga-
tions stipulated in the deed of trust. The deed of trust provides
various events of default:
a. [bridgeport Tractor’s] failure to make a payment
of principal or interest or any other amount secured
when due.
b. [gary’s Implement’s] expenditure of any amounts to
protect the Trust Estate.
c. A filing by or against [dyke] or [bridgeport Tractor]
of an action relating to bankruptcy, insolvency or other
relief for debtors, or the appointment of a trustee, receiver,
or liquidator for [bridgeport Tractor] or of the Trust
Estate, or if [dyke] makes any general assignment for the
benefit of creditors.
d. [dyke’s] failure for 30 days after written notice
from [gary’s Implement] to (i) pay delinquent taxes and
44 Id.
300 	281 NEbRASkA REpORTS

assessments, (ii) provide insurance as agreed, (iii) keep
the real [estate] and improvements in good repair [or]
make repairs and restoration caused by previous waste, or
(iv) to comply with any other terms of this deed of Trust
or any other loan Instruments [including the noncompeti-
tion agreement and promissory note].
The deed of trust further states:
[dyke] shall not sell, transfer, or otherwise convey in any
manner all or any part of the Trust Estate or interest in it
without [gary’s Implement’s] prior written consent. . . . If
a sale, transfer, or conveyance occurs, [gary’s Implement]
may declare all sums secured by this deed of Trust to be
immediately due and payable, and/or cause Trustee to file
a notice of default.
In the event of default, the deed specifies that gary’s Implement
may demand that the trustee exercise the power of sale granted
in the deed. Under the power of sale provision,
[i]f [gary’s Implement] elects to foreclose by exercise
of the power of Sale, [gary’s Implement] shall notify
Trustee and shall deposit with Trustee this deed of
Trust and the Obligations [on the noncompetition agree-
ment and promissory note] along with any receipts and
evidence of expenditures made and secured as Trustee
may require.
a. Upon receipt of the notice from [gary’s Implement],
Trustee shall record, publish, and deliver to [dyke] the
Notice of default and Notice of Sale as required by law.
Trustee shall, after the appropriate time as required by law
and after recording the Notice of default and after giving
Notice of Sale as required by law, sell the Trust Estate
at the time and place of sale fixed by it in the Notice of
Sale, either as a whole, or in separate lots or parcels or
items as Trustee shall deem appropriate, and in the order
as it may determine, at public auction to the highest bid-
der for cash payable at the time of sale. Trustee shall
deliver to the purchaser or purchasers its deed or deeds
conveying the property sold, but without any covenant
or warranty, express or implied. The recitals in the deed
of any matters or facts shall be conclusive proof of their
gARy’S ImplEmENT v. bRIdgEpORT TRAcTOR pARTS 	301
cite as 281 Neb. 281

truthfulness. Any person, including [dyke], [bridgeport
Tractor], Trustee, or [gary’s Implement], may purchase at
the sale and [dyke] covenants to warrant and defend the
title of the purchaser.
b. As may be permitted by law, after deducting all
costs, fees, and expenses of Trustee and of this Trust,
including costs of evidence of title in connection with the
sale, Trustee shall apply the proceeds of sale to payment
of (i) all sums expended or advanced under the terms
of the loan Instruments [including the noncompetition
agreement and promissory note] which remain unpaid,
with accrued interest, (ii) all other sums then secured by
this deed of Trust, and (iii) the remainder, if any, to the
person or persons legally entitled to the balance.
Following execution of the deed of trust, the following events
took place. As of July 17, 2003, bridgeport Tractor had refused
to make payments on the obligations secured by the deed of
trust in the amount of $632,225. These obligations represented
deferred payments for the purchase of gary’s Implement by
bridgeport Tractor. The original judgment in favor of gary’s
Implement’s breach of contract action was entered on July
22 in the amount of $632,225 plus interest. On July 31, a
notice of default was filed by the trustee named in the deed,
citing bridgeport Tractor’s failure to make payments on the
secured obligations. On August 1, dyke transferred the above-
referenced property to bridgeport Tractor. Immediately there-
after, on August 7, bridgeport Tractor filed a chapter 11 bank-
ruptcy petition in South dakota. On April 2, 2004, the case
was dismissed on the determination that the petition was filed
in bad faith.
gary’s Implement sent a notice of trustee’s sale to dyke on
April 15, 2004. The sale was held on may 18, wherein dyke
paid $476,000 to purchase the property via trustee’s deed. On
June 8, gary’s Implement’s attorney sent a letter to bridgeport
Tractor’s attorney indicating that the $476,000 paid at the
trustee’s sale would be applied to the original judgment minus
the costs and fees of the transaction. bridgeport Tractor’s attor-
ney responded on June 14, acknowledging the letter and stating
there was no objection to the deduction of the fees. The record
302 	281 NEbRASkA REpORTS

reflects that dyke retains ownership of the property and that
gary’s Implement retains the sums paid at the trustee’s sale.
bridgeport Tractor asserts that the sums collected by gary’s
Implement at the trustee’s sale must be returned to bridgeport
Tractor because “they represent payments on debt the jury
below concluded gary’s [Implement] cannot collect due to
its own contractual breaches.”45 gary’s Implement argues that
restitution is improper because the sums were paid on property
sold under the power of sale granted by the deed of trust inde-
pendent of the subsequently reversed money judgment. The
issue presented for our review is limited to whether the district
court abused its discretion in overruling bridgeport Tractor’s
motion for restitution.
bridgeport Tractor correctly states that we have recognized
that restitution of real estate sold in execution of a judgment
is proper after the judgment is set aside.46 bridgeport Tractor
argues that the trustee’s sale in the instant case is analogous
to the execution sale in Coon v. O’Brien.47 We disagree. The
property sold in Coon was sold for the express purpose of
executing a judgment. The present case is distinguishable.
Here, it is unclear whether the trustee’s sale was commenced
for the purpose of executing a judgment or for other legally
sound reasons.
Where money has been paid or property has been transferred
under a judgment subsequently reversed, a court issuing such
judgment has power to remedy the consequences of its error
and to order restitution.48 This power is inherent, and should be
exercised to remedy a party’s wrongful gains on the erroneous
judgment.49 When the district court has jurisdiction over the
45 brief for appellee at 42.
46 See Coon v. O’Brien, 107 Neb. 427, 186 N.W. 340 (1922).
47 Id.
48 Restatement, supra note 36, comment b.
49 See Hier v. Anheuser-Busch Brewing Ass’n, supra note 33. See, also,
Rogers v. Bill & Vince’s, Inc., 219 cal. App. 2d 322, 33 cal. Rptr. 129
(1963); DeMayo v. Lyons, 360 mo. 512, 228 S.W.2d 691 (1950); Turner
v. Ewald etc., 295 ky. 764, 174 S.W.2d 431 (1943); Smith v. Phillips, 175
la. 198, 143 So. 47 (1932).
gARy’S ImplEmENT v. bRIdgEpORT TRAcTOR pARTS 	303
cite as 281 Neb. 281

parties and the amount of overpayment is readily determin-
able or conceded, we see no reason why the court should not
enter judgment.50 However, the context of bridgeport Tractor’s
motion for restitution did not place the district court, nor does
it place this court, in a position where a right to restitution can
be readily ascertained. Under the circumstances of the case, a
court will not order a return of the money in controversy when
it is not a proper case in which to summarily order a return of
the money before the rights of the parties have been adjudi-
cated in an action at law.51
The respective rights of the parties pursuant to the deed of
trust likely govern the issue of who is entitled to retain the
sums paid at the trustee’s sale. because the deed of trust was
not interpreted below, it cannot be appropriately considered
on appeal. Specifically, it has yet to be determined whether
gary’s Implement’s power of sale under the deed of trust was
affected by the reversal of the original judgment. It has also yet
to be determined whether dyke was indeed acting on behalf of
bridgeport Tractor in executing the deed of trust or in purchas-
ing the real estate subject thereto at the trustee’s sale. We also
do not address whether dyke is a party necessary to afford
relief on this claim. Further, we do not address whether our
reversal of the original judgment on the obligations secured by
the deed of trust defeated any or all other grounds for default
which afforded gary’s Implement the power of sale. To order
the relief sought by bridgeport Tractor—a money judgment in
the amount of the sums paid at the trustee’s sale—the respec-
tive rights of the parties under the deed of trust must first be
determined. The foregoing issues need not be determined for
the purposes of our review. Such determinations are clearly not
contemplated by the general rule of restitution on sums paid
pursuant to judgments subsequently reversed. Accordingly, we
determine that restitution was properly denied below.
We make no determination as to whether gary’s Implement
was unjustly enriched by the sums paid by dyke at the trustee’s
sale. This claim was not pleaded or litigated below; we therefore
50 See Schwennen v. Abell, 471 N.W.2d 880 (Iowa 1991).
51 See Horton v. Hayden, supra note 33.
304 	281 NEbRASkA REpORTS

cannot address it on appeal. We also do not determine whether
gary’s Implement is entitled to retain the sums paid at the
trustee’s sale pursuant to its rights granted by the deed of trust.
Such a finding requires inquiry beyond whether bridgeport
Tractor is owed restitution based on reversal of the original
judgment. because these matters have not been fully litigated,
we note that our present determination does not preclude the
parties from raising such claims in the case currently pending
in district court.
The facts underlying bridgeport Tractor’s cross-appeal indi-
cate that this is not a proper case for restitution on the basis
of a judgment subsequently reversed as we have recognized
it. Therefore, the district court did not abuse its discretion in
overruling bridgeport Tractor’s motion for restitution. For the
foregoing reasons, we find bridgeport Tractor’s assignments of
error on cross-appeal to be without merit.
VI. cONclUSION
We find that jury instruction No. 7 does not amount to preju-
dicial error and that Wenande’s expert testimony was properly
admitted at trial. We also find that the district court did not
err in denying bridgeport Tractor’s motion for restitution.
Therefore, we affirm the judgment of the district court.
affIrmed.
STATE v. SIdzyIk 	305
cite as 281 Neb. 305
state of neBraska , appellee , v.
donald l. sIdzyIk , appellant.
795 N.W.2d 281
Filed April 1, 2011. 	No. S-10-278.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is whether the record is suf-
ficient to adequately review the question.
3. Appeal and Error: Words and Phrases. plain error will be noted only where
an error is evident from the record, prejudicially affects a substantial right of
a litigant, and is of such a nature that to leave it uncorrected would cause a