Eicher v. Mid America Fin. Invest. Corp.

462 	275 Nebraska reports
determining the negligence of a driver of a recreational
boat, they do not indicate how their testimony is relevant,
and, they do not indicate how they arrived at their opinions
or state the basis for their opinions.
the resumes and curricula vitae of Caguioa’s witnesses
established that they were qualified as experts in matters involv-
ing the operation and use of pleasure boats. both graduated
from the U.s. Coast Guard academy, and each had extensive
experience with boats, including more than 20 years of experi-
ence as officers of the U.s. Coast Guard.
the affidavits were offered to show the experts’ opinions
that the defendants’ conduct was negligent because it did not
conform to a standard of ordinary care. their affidavits were
relevant and were sufficient to establish the foundation for their
opinions. the affidavits were not unfairly prejudicial.
CoNCLUsIoN
We affirm the judgment of the trial court as to plaintiff’s
claim based on the Jones act. However, for the reasons set
forth above, we conclude that the trial court erred in grant-
ing the defendants’ motion for summary judgment based on a
cause of action for negligence. We reverse the judgment as to
plaintiff’s claims based on the alleged negligence of the defen-
dants, and we remand the cause for further proceedings.
affirMed iN part , aNd iN part reverSed aNd
reMaNded for further proceediNgS.
M iller -lerMaN, J., not participating.
ivaN eicher aNd deloreS eicher et al ., appelleeS,
v . M id aMerica fiNaNcial iNveStMeNt
corporatioN et al ., appellaNtS.
748 N.W.2d 1
Filed april 18, 2008. 	No. s-06-1206.
1. Trial: Witnesses. In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to be given
their testimony.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

2. Witnesses: Evidence: Appeal and Error. an appellate court will not reevaluate
the credibility of witnesses or reweigh testimony but will review the evidence for
clear error.
3. Judgments: Appeal and Error. the trial court’s factual findings in a bench trial
of an action at law have the effect of a jury verdict and will not be set aside unless
clearly erroneous.
4. ____: ____. In reviewing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the evidence in the light
most favorable to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference deducible
from the evidence.
5. Judgments: Statutes: Appeal and Error. When an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determination made by the
court below.
6. Damages: Appeal and Error. the amount of damages to be awarded is a deter-
mination solely for the fact finder, and its action in this respect will not be dis-
turbed on appeal if it is supported by evidence and bears a reasonable relationship
to the elements of the damages proved.
7. Property: Valuation: Witnesses. a landowner is qualified to testify to the fair
market value of his or her own property.
8. Courts: Judgments: Time. a district court can modify a judgment or order
issued in a prior term only if it has specific statutory authority to do so.
9. Statutes: Time: Words and Phrases: Appeal and Error. “pendency” in Neb.
rev. stat. § 25-2001(3) (Cum. supp. 2006) refers to the period of time after
notice of appeal has been filed but before the parties have submitted the case
at argument.
10. Judgments: Time: Words and Phrases. “submitted for decision” in Neb. rev.
stat. § 25-2001(3) (Cum. supp. 2006) refers to the period after the case was sub-
mitted at oral argument but before the court’s opinion has issued.
11. Courts: Judgments: Time: Appeal and Error. Under Neb. rev. stat. § 25-2001(3)
(Cum. supp. 2006), a district court may freely correct clerical errors after notice
of appeal has been filed up until the time the parties submit the case at the conclu-
sion of arguments.
12. Consumer Protection. the Consumer protection act only applies to unfair or
deceptive practices which affect the public interest.
13. Actions: Fraud: Proof. to set forth a prima facie case of fraudulent misrepresen-
tation, one must show (1) that a representation was made; (2) that the representa-
tion was false; (3) that when made, the representation was known to be false or
made recklessly without knowledge of its truth and as a positive assertion; (4)
that it was made with the intention that it should be relied upon; (5) that the party
reasonably did so rely; and (6) that he or she suffered damage as a result.
14. Contracts: Fraud: Presumptions. the general rule that an individual’s knowledge
of a contract’s contents is presumed once the individual signs it applies only in the
absence of fraud.
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464 	275 Nebraska reports
15. Contracts: Fraud. the doctrine that the carelessness or negligence of a party in
signing a writing estops him or her from afterward disputing the contents of such
writing is not applicable in a suit thereon between the original parties thereto
when the defense is that such writing, by reason of fraud, does not embrace the
contract actually made.
16. Damages: Proof. Nebraska law only requires a plaintiff to prove his or her damages
to a reasonable certainty; it does not require proof beyond all reasonable doubt.
17. Conspiracy: Words and Phrases. a civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlawful or oppressive object,
or a lawful object by unlawful or oppressive means.
18. Actions: Conspiracy. a civil conspiracy is only actionable if the alleged con-
spirators actually committed some underlying misconduct.
19. Conspiracy: Corporations: Pleadings. to pursue a claim of civil conspiracy
where the allegations involve a conspiracy between the corporation and its corpo-
rate employees, the petition must allege that the latter are acting outside the scope
of their authority or other than in the normal course of their corporate duties.
appeal from the District Court for Douglas County: peter c.
batailloN, Judge. affirmed.
David a. Domina and elias t. Xenos, of Domina Law Group,
p.C., L.L.o., for appellants.
Mark C. Laughlin, andrea F. scioli, and tamara D. borer, of
Fraser stryker, p.C., L.L.o., for appellees.
heavicaN, 	C.J., 	W right, 	coNNolly, 	gerrard, 	S tephaN,
M ccorMack, and M iller -lerMaN, JJ.
heavicaN, C.J.
I. INtroDUCtIoN
William street and David Welton, along with 11 other home
mortgagors (collectively plaintiffs), brought various claims
against Mid america Financial Investment Corporation (Mid
america), scott bloemer, and elaina Hollingshead (collec-
tively defendants) in the district court for Douglas County. the
district court found that defendants were liable to all the mort-
gagors except Welton and street. the court found that Welton
suffered no damage as a result of defendants’ misconduct and
that street’s claims were barred entirely by collateral estoppel.
on appeal, we upheld the district court’s findings regarding the
other plaintiffs, but reversed the district court’s determinations

and remanded the cause regarding street and Welton.1 on
remand, the court ruled in favor of both street and Welton,
awarding each damages, attorney fees, and costs. Defendants
now appeal, and for reasons set forth below, we affirm.
II. baCkGroUND
In May 2001, street, Welton, and numerous other individu-
als sued defendants based on an allegedly deceptive scheme to
defraud homeowners out of their homes. Using Mid america
as their alter ego, bloemer and Hollingshead would contact
homeowners facing imminent foreclosures and offer to help
the homeowners by loaning them the money needed to avoid
foreclosure. However, under the terms of the forms bloemer
and Hollingshead encouraged the homeowners to sign, Mid
america would acquire title to the homes by warranty deed.
When the homeowners would fail to make the scheduled pay-
ments to Mid america, defendants would evict the homeown-
ers. as a result, the homeowners lost their homes and any
equity they had therein.
after a bench trial, the district court found that defen-
dants had engaged in a civil conspiracy to defraud plaintiffs
out of their homes and that this conduct violated Nebraska’s
Consumer protection act (Cpa). accordingly, the district court
entered judgments in favor of plaintiffs, but specifically denied
relief to Welton and street for the reasons set forth above.
on appeal, we affirmed the district court’s judgment regard-
ing plaintiffs’ claims of civil conspiracy and violations of the
Cpa. However, we reversed the district court’s decision to
dismiss street’s claims and remanded the cause with direc-
tions to adjudicate the merits of those claims. We also reversed
the district court’s finding that Welton did not suffer damages
and remanded the cause with directions “to award damages
to Welton in an amount which it shall determine from the
existing record.”2
1 see Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d
792 (2005).
2 Id. at 390, 702 N.W.2d at 811.
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466 	275 Nebraska reports
on remand, the district court found that Welton was entitled
to $35,532.40 in damages. the court based this figure on
Welton’s testimony that the fair market value of his property
was $80,000 at the time of the Mid america transaction.
the balance on the mortgage at the time was $41,000, which
left Welton with $39,000 in equity in the home. the court
found that Mid america paid a mortgage reinstatement fee
of $5,947.80 and made $13,029.92 in mortgage payments for
a total of $18,977.72. However, Welton made $15,330.12 in
“loan” payments to Mid america, leaving Mid america with an
interest of only $3,647.60 in the home. accordingly, the court
awarded Welton $35,532.40 in damages.
In that same order, the court also awarded Welton attorney
fees in the amount of $12,108.20 and cited Neb. rev. stat.
§ 87-303 (reissue 1999) as the basis for that award. It is worth
noting at this juncture that § 87-303 pertains to Nebraska’s
Uniform Deceptive trade practices act (UDtpa), yet Welton’s
judgment was based on the Cpa.
regarding street, the district court found that he, too, was
the victim of a civil conspiracy to commit fraudulent misrepre-
sentation as well as violations of the Cpa. the court calculated
street’s damages at $35,478.98. this figure was based on street’s
testimony that his home had a fair market value of $75,000 at
the time of the Mid america transaction. Mid america paid
$5,260.95 to reinstate the mortgage and $35,910.07 in mortgage
payments for a total of $41,171.02. the court found that street
made one “loan” payment to Mid america of $800. the court
also found that street incurred $850 in damages when he was
forced to move his family into a motel for a 17-day period after
Mid america evicted him and his family.
as with Welton, the court awarded street $12,108.20 in attor-
ney fees. once again, the court based the award on § 87-303,
a section pertaining to the UDtpa, despite the fact that street,
like Welton, secured relief under the Cpa.
Defendants filed notice of appeal on october 26, 2006, and
submitted their opening brief on January 16, 2007. shortly
thereafter, the district court recognized that it mistakenly cited
a section of the UDtpa rather than the Cpa as the basis
for Welton and street’s attorney fee awards. accordingly, on

January 26, 2007, the district court issued a pair of orders nunc
pro tunc explaining its mistake and making clear that attorney
fees were awarded under the Cpa.
III. assIGNMeNts oF error
1. aSSigNMeNtS regardiNg W eltoN
regarding Welton, defendants assign, restated and renum-
bered, that the district court erred (1) by miscalculating the
amount of Welton’s damages and (2) in awarding Welton
attorney fees.
2. aSSigNMeNtS regardiNg S treet
regarding street, defendants assign, restated and renum-
bered, that the district court erred by finding that (1) defendants’
transaction with street violated the Cpa, (2) street successfully
proved a case of fraudulent misrepresentation, (3) a civil con-
spiracy existed on the part of bloemer and Hollingshead, and
(4) street was entitled to attorney fees.
IV. staNDarD oF reVIeW
[1-3] In a bench trial of an action at law, the trial court
is the sole judge of the credibility of the witnesses and the
weight to be given their testimony.3 an appellate court will not
reevaluate the credibility of witnesses or reweigh testimony
but will review the evidence for clear error.4 similarly, the trial
court’s factual findings in a bench trial of an action at law have
the effect of a jury verdict and will not be set aside unless
clearly erroneous.5
[4,5] In reviewing a judgment awarded in a bench trial of
a law action, an appellate court does not reweigh evidence,
but considers the evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor of
the successful party, who is entitled to every reasonable infer-
ence deducible from the evidence.6 When an appeal calls for
3 see Eicher, supra note 1.
4 see id.
5 see Broekemeier Ford v. Clatanoff, 240 Neb. 265, 481 N.W.2d 416 (1992).
6 Id. see Eicher, supra note 1.
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468 	275 Nebraska reports
statutory interpretation or presents questions of law, an appel-
late court must reach an independent, correct conclusion irre-
spective of the determination made by the court below.7
[6] the amount of damages to be awarded is a determina-
tion solely for the fact finder, and its action in this respect
will not be disturbed on appeal if it is supported by evidence
and bears a reasonable relationship to the elements of the
damages proved.8
V. aNaLYsIs
1. W eltoN J udgMeNt
Defendants raise two arguments regarding the judgment in
favor of Welton. First, defendants argue that the district court
erred in calculating the amount of Welton’s damages. second,
defendants claim that the district court’s award of attorney fees
should not stand because the original basis for the award—the
UDtpa—was erroneous and the court’s attempt to change that
mistake through an order nunc pro tunc was invalid. We address
each argument in turn.
(a) Damage Computation
Defendants argue that the district court made two errors when
calculating Welton’s damages. First, they claim that the district
court neglected to credit them with the value of the repairs they
made to Welton’s home. second, defendants claim that the dis-
trict court erred in identifying the fair market value of Welton’s
home at the time of the transaction with Mid america.
(i) Repairs
our review of defendants’ argument that the district court
did not properly credit them for repairs made to Welton’s
home is hamstrung by their failure to adequately develop that
claim. Defendants simply assert that they were not given ade-
quate credit for the repairs even though “[t]he trial court knew
from the uncontroverted evidence, admitted by Welton, that
7 Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33
(2004).
8 see Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951, 653
N.W.2d 813 (2002).

his property was improved by [defendants].”9 this assertion,
however, is not accompanied by any cite to the record, nor do
defendants specify the exact repairs to which they refer.
the district court’s order may provide a clue as to the repairs
at issue. In its order, the court discussed repairs made to the
sidewalk in front of Welton’s home. the court found that defen-
dants did, in fact, spend roughly $2,000 to have a third party
deliver and pour cement in front of Welton’s home. but the
district court also found that Welton had to remove the old side-
walk and set the forms in which the new cement was poured.
because both parties contributed to those repairs through
money or labor, the district court declined to credit either party
with the value of those improvements. Defendants have not
pointed to any evidence in the record which would undermine
Welton’s testimony or the significance that the district court
attached to it. accordingly, this argument is without merit.
(ii) Valuation of Welton’s Home
Defendants next argue that the court erred when it con-
cluded that Welton’s home had a fair market value of $80,000
at the time of the Mid america transaction. Instead, defendants
believe the home was worth no more than $65,000.
the district court drew the $80,000 figure from Welton’s own
testimony. Defendants’ $65,000 figure is drawn from the testi-
mony of bloemer, one of the defendants in this case. apparently,
bloemer has some expertise in real estate. Defendants believe,
therefore, that the district court should have relied on his
appraisal rather than that of Welton, a lay witness without sig-
nificant knowledge about real estate.
[7] but we have long held that a landowner is qualified to
testify to the fair market value of his or her own property.10 and
while testimony of an expert in real estate may sometimes be
more reliable regarding the value of property than testimony
from a lay witness, that would not be true where the trial court
had reason to doubt the expert’s credibility. the district court
9 brief for appellants at 26.
10 see Smith v. Papio-Missouri River NRD, 254 Neb. 405, 576 N.W.2d 797
(1998).
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470 	275 Nebraska reports
specifically found that bloemer was not credible. any addi-
tional skill that bloemer had in identifying property values was
rendered moot as a result. We cannot reassess the credibility of
witnesses on appeal11 and therefore conclude that defendants’
argument in this regard is without merit.
(b) attorney Fees
In defendants’ opening brief filed with this court on January
16, 2007, they argued that Welton’s attorney fee award was not
valid because it was based on the UDtpa, while Welton’s judg-
ment was based on the Cpa. However, on January 26, 2007, the
district court issued an order nunc pro tunc, pursuant to Neb.
rev. stat. § 25-2001(3) (Cum. supp. 2006). In that order, the
court explained that it had accidentally cited the UDtpa when
it awarded Welton attorney fees. the court made clear that it
had intended to cite to the Cpa instead.
In response, defendants contend that the order nunc pro
tunc is not valid and that Welton’s attorney fee award must
be reversed. Defendants’ arguments in this regard are twofold.
First, defendants believe the timeframe for issuing an order
nunc pro tunc under § 25-2001(3) had lapsed before the court
actually issued the order. second, defendants argue that the
defect in the original order was not a true “clerical error” and
therefore not the sort of error correctable under § 25-2001(3).
We address each argument in turn below.
(i) Timing
Defendants point out that a district court’s ability to make
subsequent changes to orders after they have been issued
diminishes considerably when the term in which the order was
issued has ended.12 a district court’s term coincides with the
calendar year.13 the district court’s order nunc pro tunc was
issued January 26, 2007, and attempts to correct an error in an
order issued september 29, 2006.
11 Eicher, supra note 1.
12 see Emry v. American Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786
(1983).
13 see Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).

[8] Nonetheless, defendants mischaracterize the scope of a
district court’s authority in this regard. a district court’s author-
ity to modify prior orders does not end entirely with the con-
clusion of the term. rather, what ends at the conclusion of the
term is the district court’s virtually unlimited ability to modify
orders issued therein.14 thereafter, a district court can modify a
judgment or order issued in a prior term only if it has specific
statutory authority to do so. the various scenarios enumerated in
§ 25-2001—including § 25-2001(3)—provide such authority.15
even assuming § 25-2001(3) allowed the district court to
correct an order issued in the prior term, defendants contend
that the district court did not follow the timing requirements
in that section. section 25-2001(3) provides, in pertinent part,
“During the pendency of an appeal, [clerical] mistakes may be
so corrected before the case is submitted for decision in the
appellate court, and thereafter while the appeal is pending may
be so corrected with leave of the appellate court.”16
to define “pendency” and “submitted for decision,” defen-
dants rely on Neb. rev. stat. § 25-1912(4) (Cum. supp. 2006).
that section provides that a district court is divested of juris-
diction when a party perfects an appeal by filing notice of that
appeal in the district court. at that time, jurisdiction shifts from
the district court to the appellate court. In so arguing, defendants
suggest that “pendency” and “submitted for decision” are syn-
onymous with filing notice of appeal. accordingly, defendants
essentially contend that any orders pursuant to § 25-2001(3)
which come after notice of appeal has been filed would be void
unless the district court obtained leave of the appellate court.
because the district court did not obtain leave from this court
when it issued its order nunc pro tunc, the order would be void
under defendants’ reading of § 25-2001(3).
[9,10] but defendants’ interpretation of § 25-2001(3) is fore-
closed by the fact that § 25-2001(3) very clearly contemplates
two distinct periods during the appellate process. In our view,
14 see First Nat. Bank v. First Trust Co., 145 Neb. 147, 15 N.W.2d 386
(1944).
15 see State ex rel. Ward v. Pape, 237 Neb. 283, 465 N.W.2d 760 (1991).
16 § 25-2001(3).
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“pendency” in § 25-2001(3) refers to the period of time after
notice of appeal has been filed but before the parties have sub-
mitted the case at argument. “[s]ubmitted for decision” refers,
therefore, to the period after the case was submitted at oral
argument but before the court’s opinion has issued.
[11] Under § 25-2001(3), a district court may freely correct
clerical errors after notice of appeal has been filed up until
the time the parties submit the case at the conclusion of argu-
ments. after that time, the district court must obtain leave of
the appellate court to fix a clerical error in a prior order. It is
worth noting that the Court of appeals has already interpreted
and applied § 25-2001(3) in this fashion.17
because this case had not yet been submitted when the dis-
trict court attempted to correct the mistake in Welton’s attorney
fee award by issuing an order nunc pro tunc, the district court
did not need leave from this court to issue that order. therefore,
assuming that the court’s order nunc pro tunc concerns a cleri-
cal error in its prior order, the order was valid. the next ques-
tion, then, is whether the district court’s accidental citation
to the UDtpa instead of the Cpa can be characterized as a
“clerical error.”
(ii) Nature of District Court’s Original Error
Defendants claim that the district court’s citation to the
UDtpa instead of the Cpa is not a true clerical error and,
therefore, that § 25-2001(3) does not permit the order nunc
pro tunc. the district court itself explained that it “mistakenly”
cited the UDtpa in its prior order through “oversight.” this
explanation finds support in the fact that the court made the
exact same mistake in the original judgment that we affirmed
on the first appeal in this case.
In the initial order following the first trial of this case, the
district court awarded attorney fees under the Cpa. “However,
in its order following the subsequent hearing, the court referred
to a provision in the UDtpa which permits an award of attor-
ney fees to a prevailing party.”18 then, while the parties were
17 see State v. Ziemann, 14 Neb. app. 117, 705 N.W.2d 59 (2005).
18 Eicher, supra note 1, 270 Neb. at 382, 702 N.W.2d at 806.

submitting their briefs in the first appeal in this case, the district
court issued “an order nunc pro tunc declaring that the award of
attorney fees was pursuant to the Cpa and that the reference to
the UDtpa was a clerical error.”19 a nearly identical sequence
of events occurred before and during the present appeal. It
seems doubtful that the district court wanted to incite another
“confusing sequence of events”20 by intentionally referring to
the UDtpa a second time.
Nor do we think it significant that the court did not spe-
cifically refer to its error as a “clerical error.” such errors
are defined as errors which result “from a minor mistake or
inadvertence” especially in “writing or copying something.”21
there is perhaps no better description of what transpired here
than that. accordingly, we conclude that the reference to the
UDtpa in Welton’s attorney fee award was the product of a
clerical error and that the court had authority to change it pur-
suant to § 25-2001(3).
2. S treet J udgMeNt
(a) Cpa Violation
[12] regarding street, defendants first argue that the district
court erred in finding that any misconduct on their part amounted
to a violation of the Cpa. the Cpa’s scope is limited to “the
sale of assets or services and any commerce directly or indi-
rectly affecting the people of the state of Nebraska.”22 based on
that language, we have held that the Cpa only applies to unfair
or deceptive practices which affect the “public interest.”23
Drawing on that phrase, defendants contend that the Cpa
should not apply here because the transaction involved only
street and the named defendants, not the public at large. In
this way, defendants believe this case is similar to Nelson v.
19 Id. at 374, 702 N.W.2d at 801.
20 Id. at 382, 702 N.W.2d at 806.
21 black’s Law Dictionary 582 (8th ed. 2004).
22 Neb. rev. stat. § 59-1601(2) (reissue 2004).
23 see Nelson v. Lusterstone Surfacing Co., 258 Neb. 678, 683, 605 N.W.2d
136, 141 (2000).
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474 	275 Nebraska reports
Lusterstone Surfacing Co.24 In Nelson, we held that the Cpa
did not apply to the allegedly fraudulent sale of a single Jeep
vehicle between a corporation and a private citizen.
Notably, defendants made the exact same argument with
respect to the other plaintiffs in this case during the first appeal.
although we did not elaborate on our rationale at the time, it
is clear that we found defendants’ Cpa argument unavailing,
since we concluded that “plaintiffs are entitled to recover their
damages and attorney fees under their alternative theories of
fraud and violation of the CPA.”25 We see no reason to alter that
conclusion now.
Nor is it significant that street’s claim was litigated sepa-
rately from the remainder of plaintiffs’ claims. street would
have recovered along with those plaintiffs but for the district
court’s mistaken conclusion that his claim was procedurally
barred. street’s claim depends on the same allegations raised
by the other plaintiffs—that is, that defendants engaged in a
pattern of calculated conduct intended to defraud numerous
citizens of this state of their homes. We find no merit in defen-
dants’ contention that the Cpa does not apply to their transac-
tion with street.
(b) Fraudulent Misrepresentation
[13] Defendants next argue that the district court erred in
neglecting to recognize street’s failure to prove a case of
fraudulent misrepresentation. to set forth a prima facie case of
fraudulent misrepresentation, one must show (1) that a repre-
sentation was made; (2) that the representation was false; (3)
that when made, the representation was known to be false or
made recklessly without knowledge of its truth and as a positive
assertion; (4) that it was made with the intention that it should
be relied upon; (5) that the party reasonably did so rely; and (6)
that he or she suffered damage as a result.26 Defendants believe
24 Id.
25 Eicher, supra note 1, 270 Neb. at 390, 702 N.W.2d at 811 (emphasis
supplied).
26 Eicher, supra note 1 (citing Agri Affiliates, Inc. v. Bones, 265 Neb. 798, 660
N.W.2d 168 (2003)).

that street failed to prove several of these elements. We review
each of defendants’ arguments in the subsections that follow.
(i) Existence of False Statement of Fact
street claimed at trial that defendants made numerous false
statements that the transaction with Mid america was a loan
and not a sale. Defendants point out, however, that the only
real evidence of such statements is street’s own “self-serving”
testimony.27 but despite the potential for bias, the district
court found that street was a credible witness. Moreover, the
only evidence that contradicts street’s testimony is testimony
by bloemer and Hollingshead, two of the defendants. this
evidence carries the same potential for bias, and the dis-
trict court specifically found that bloemer and Hollingshead
were not credible. the district court did not err in relying
on street’s testimony regarding the existence of false fac-
tual statements.
(ii) Reasonable Reliance
[14,15] Defendants next suggest that street did not reason-
ably rely on their false statements of fact because he signed
forms which clearly indicated that the transaction was a sale,
not a loan as street claims he was told. but at trial, street
testified that he did not read the forms before signing them.
the general rule that an individual’s knowledge of a contract’s
contents is presumed once the individual signs it “applies only
in the absence of fraud.”28 or, as we said in the first appeal in
this case,
“the doctrine that the carelessness or negligence of a
party in signing a writing estops him from afterwards dis-
puting the contents of such writing is not applicable in a
suit thereon between the original parties thereto when the
defense is that such writing, by reason of fraud, does not
embrace the contract actually made.”29
27 brief for appellants at 17.
28 Eicher, supra note 1, 270 Neb. at 379, 702 N.W.2d at 804.
29 Id. (quoting West v. Wegner, 172 Neb. 692, 111 N.W.2d 449 (1961)).
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476 	275 Nebraska reports
because the district court specifically found that street was
fraudulently induced to sign the sale agreements with Mid
america, he is not charged with constructive knowledge of
their contents. accordingly, it is irrelevant whether those agree-
ments clearly identified the transaction as a sale.
(iii) Actual Reliance
Defendants next argue that even if it would have been rea-
sonable for street to rely on their false statements, there is
proof that street did not actually do so. In this regard, defen-
dants point out that street’s home was listed as sold on his 1998
tax return. the desired inference is that street knew his home
had been sold and held it out as such.
However, street testified at trial that he did not list the sale
of his home on his tax return. street first realized that his home
was so listed when he reviewed the tax documents in May 2002
while preparing for trial. as street explained, Mid america
mailed him various tax-related documents early in 1999. street
apparently did not review these documents himself. Instead,
street took those and his other tax documents to a local office
of “professional bookkeeping service” (pbs) and asked them
to prepare his tax return. When pbs completed street’s tax
return, street signed and mailed the return without reviewing
it. street also claims that he never spoke to any pbs employees
about the contents of his tax return. therefore, according to
street’s testimony, he did not personally report the sale of his
home on his 1998 tax return. the district court found street to
be a credible witness, and we cannot disturb that determina-
tion on appeal. accordingly, the tax return does not support the
inference that street knew his transaction with Mid america
was a sale and not a loan.
(iv) Causation
Defendants also contend that any fraud on their part did not
cause street to suffer damages because street’s home would
have been foreclosed upon but for their intervention. In support
of this argument, defendants offer street’s testimony wherein
he concedes that he was not planning to take any steps to
prevent foreclosure before Mid america contacted him. but

the suggestion that street’s home would have been foreclosed
without their intervention reflects a fundamental misunder-
standing of the proper causal inquiry in this case.
street has not alleged that Mid america caused him to lose
his home. rather, street alleged that Mid america caused him
to lose his home and any equity he had invested in it. as the
district court found, street’s home had a fair market value of
approximately $75,000, with $41,171.02 remaining on his mort-
gage. this left street with $33,828.98 in equity in his home.
even a foreclosure of street’s home would have permitted him
to recover some if not all of that equity. by fraudulently induc-
ing street to convey his home to them, Mid america caused
street to lose his home and as much as $33,828.98 in equity.
(v) Damages
Defendants’ final argument regarding street’s claim of fraud-
ulent misrepresentation concerns damages. First, defendants
claim that the district court erred when it relied on street’s
testimony on his home’s fair market value. second, defen-
dants claim that street did not prove his damages with suffi-
cient specificity.
Defendants’ first argument is identical to the argument they
made regarding the district court’s decision to base Welton’s
damages on Welton’s assessment of the fair market value of his
own home instead of bloemer’s testimony. again, as a land-
owner, street—like Welton—was qualified to testify as to the
value of his property.30 and while bloemer may have had more
knowledge of the real estate market, the court found that unlike
street, bloemer was not trustworthy. accordingly, the court did
not err in relying on street’s testimony to identify the fair market
value of street’s home.
[16] as for the second argument, defendants point out that
street did not show how much he would have received for his
home at a foreclosure sale. as such, defendants contend that
street did not prove his damages with the degree of specificity
that the law requires. but Nebraska law only requires a plaintiff
to prove his or her damages to a reasonable certainty; it does
30 see Smith, supra note 10.
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478 	275 Nebraska reports
not require proof beyond all reasonable doubt.31 the district
court’s computation was a reasonable estimate of street’s dam-
ages based on the estimated value of his home, less the amount
owed on his mortgage. this was the exact same method that we
used in the first appeal of this case to speculate whether Welton
had suffered any damages.32 While it is true that street did not
prove that his home would have earned its full estimated value
at the foreclosure sale, such proof is not needed to generate a
reasonably certain estimate of his damages.
(c) Civil Conspiracy
[17] Defendants next contend that the district court erred in
finding in favor of street on his allegation of civil conspiracy.
a civil conspiracy is a combination of two or more persons
to accomplish by concerted action an unlawful or oppressive
object, or a lawful object by unlawful or oppressive means.33
Defendants argue that street’s civil conspiracy claim was defi-
cient in numerous respects.
(i) Underlying Civil Violation
[18] First, defendants argue that they cannot be held liable
for a civil conspiracy because they did not commit any under-
lying violations. a civil conspiracy is only actionable if the
alleged conspirators actually committed some underlying mis-
conduct.34 but as set forth above, we affirm the district court’s
conclusion that defendants violated the Cpa and committed
fraudulent misrepresentation. there are, therefore, multiple
underlying violations to support a claim of civil conspiracy.
(ii) Specificity in Pleadings
[19] Defendants next argue that the district court erred in
failing to recognize that street did not properly allege a civil
conspiracy. to pursue a claim of civil conspiracy where, as
31 see Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003).
32 see Eicher, supra note 1.
33 Id. (citing Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813
(1997)).
34 see Treptow Co. v. Duncan Aviation, Inc., 210 Neb. 72, 313 N.W.2d 224
(1981).

here, the allegations involve a conspiracy between the corpora-
tion and its corporate employees, the petition must allege that
the latter are acting outside the scope of their authority or other
than in the normal course of their corporate duties.35 Defendants
believe street failed to do so in his pleadings and was therefore
estopped from pursuing that claim at trial.
but the portion of street’s pleadings which set forth a claim
of civil conspiracy is identical to the pleadings filed by each of
the other plaintiffs in this case. In disposing of defendants’ first
appeal, we held that such language was “sufficient to set forth
a claim of conspiracy among all three defendants.”36
Defendants attempt to escape the force of that conclusion by
arguing that it contradicts our decision in Upah v. Acona Bros.
Co.37 In Upah, we held that a plaintiff was estopped from pur-
suing a civil conspiracy claim due to a deficiency in the plead-
ings. but there is a notable difference between the pleadings at
issue here and the pleadings in Upah.
In Upah, the pleadings alleged that defendants’ wrong-
ful actions “‘were done within the scope of their corporate
duties.’”38 this presented an obvious problem because, as
explained above, a claim of civil conspiracy requires exactly
the opposite—an allegation that defendants’ wrongful actions
were done outside the scope of their authority.39 but the
pleadings involved in this case do not present such an inher-
ent contradiction. the pleadings here allege that bloemer and
Hollingshead used the Mid america corporate entity as their
“alter ego” and a “conduit” through which they defrauded the
homeowners. such allegations are sufficient to support a claim
of civil conspiracy.
35 see Dixon v. Reconciliation, Inc., 206 Neb. 45, 291 N.W.2d 230 (1980).
36 Eicher, supra note 1, 270 Neb. at 381, 702 N.W.2d at 805.
37 Upah v. Ancona Bros. Co., 246 Neb. 585, 521 N.W.2d 895 (1994), dis-
approved in part on other grounds, Welsch v. Graves, 255 Neb. 62, 582
N.W.2d 312 (1998).
38 Id. at 592, 521 N.W.2d at 901 (emphasis supplied).
39 Eicher, supra note 1.
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480 	275 Nebraska reports
(iii) Proof Defendants Acted Outside Scope
of Their Corporate Duties
Defendants’ final argument regarding street’s civil conspir-
acy claim is that the district court erred in finding that bloemer
and Hollingshead acted outside the scope of their corporate
duties. street’s claim depends on the same evidence the trial
court used to conclude that bloemer and Hollingshead acted
outside the scope of their corporate duties with respect to the
other plaintiffs in this case. During the first appeal, we con-
cluded that such evidence “supports the allegation that the
individual defendants acted outside any legitimate scope of cor-
porate employment by utilizing the corporate entity as part of a
scheme to defraud third parties.”40 We see no reason to change
that conclusion now.
(d) attorney Fees
In their final assignment, defendants contend that the district
court erred in awarding attorney fees to street. as was true for
Welton, the district court initially awarded street attorney fees
under the UDtpa, then issued an order nunc pro tunc clarify-
ing that it meant to award attorney fees pursuant to the Cpa. as
noted above in our discussion of Welton’s attorney fee award,
the district court had authority to issue its orders nunc pro tunc
under § 25-2001(3). the district court did not err in awarding
attorney fees to street.
VI. CoNCLUsIoN
We conclude that the district court did not err in resolving
Welton’s claims. the court properly relied on Welton’s testi-
mony regarding his home’s fair market value when setting the
amount of his damages. Moreover, the district court provided
an adequate basis for its award of attorney fees in a valid order
nunc pro tunc.
We also conclude that the district court properly handled
street’s claims on remand. as with the other plaintiffs in this
case, the district court accurately concluded that defendants’
actions amounted to a violation of the Cpa. the district court
40 Id. at 381, 702 N.W.2d at 805.

did not err in finding that street successfully proved a case of
fraudulent misrepresentation. similarly, the district court did
not err in finding that defendants engaged in a civil conspir-
acy. the district court properly considered street’s testimony
regarding his home’s fair market value in calculating street’s
damages. Finally, as with Welton, the district court provided
a proper basis for street’s attorney fee award in a valid order
nunc pro tunc.
Having concluded that the district court did not err in resolv-
ing either Welton’s or street’s claims against defendants, we
affirm the district court’s judgment.
affirMed .
S tate of N ebraSka , appellee aNd croSS- appellaNt , v .
rickey l. J iM, appellaNt aNd croSS- appellee .
747 N.W.2d 410
Filed april 18, 2008. 	No. s-06-1217.
1. Statutes: Appeal and Error. statutory interpretation presents a question of
law, and an appellate court resolves such issues independently of the lower
court’s conclusions.
2. Postconviction: Constitutional Law. the Nebraska postconviction act, Neb.
rev. stat. §§ 29-3001 to 29-3004 (reissue 1995), is available to a defendant
to show that his or her conviction was obtained in violation of his or her
constitutional rights.
3. Postconviction: Constitutional Law: Proof. In a motion for postconviction
relief, the defendant must allege facts which, if proved, constitute a denial or
violation of his or her rights under the U.s. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable.
4. Postconviction: Constitutional Law: Proof: Records. an evidentiary hear-
ing on a motion for postconviction relief must be granted when the motion
contains factual allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution. However, if the
motion alleges only conclusions of fact or law, or the records and files in the case
affirmatively show that the movant is entitled to no relief, no evidentiary hearing
is required.
5. Postconviction: Evidence. If the court grants an evidentiary hearing in a postcon-
viction proceeding, it is obligated to determine the issues and make findings of
fact and conclusions of law with respect thereto.
6. Appeal and Error. an appellate court may, at its discretion, discuss issues unnec-
essary to the disposition of an appeal where those issues are likely to recur during
further proceedings.
state v. JIM 	481
Cite as 275 Neb. 481