Albert v. Heritage Admin. Servs.

Schneider paid for it. Thus, there is no evidence that the mari-
tal estate was diminished by the transfer.
On our de novo review of the record, we find no evidence
showing that the value of the marital estate was diminished by
the transfers of C.J. Reed and R.S. Wheel. The district court
did not abuse its discretion in declining to include those assets
in the marital estate. We find no merit to Christine’s remaining
assignments of error.
COnCluSiOn
On rehearing, our original opinion in this matter is with-
drawn. And for the reasons stated above, we affirm the judg-
ment of the district court.
A ffirmed.
michAel A lbert, Appellee , v. heritAge A dministrAtion
services , inc., AppellAnt.
763 n.W.2d 373
Filed March 20, 2009. 	no. S-07-1044.
1. Breach of Contract: Damages. A suit for damages arising from breach of a
contract presents an action at law.
2. Judgments: Appeal and Error. in a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
3. Contracts: Appeal and Error. The interpretation of a contract involves a ques-
tion of law, in connection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by the court below.
Appeal from the District Court for lancaster County: Jodi
nelson, Judge. Affirmed.
Tim 	Engler, 	of 	Harding 	& 	Shultz, 	P.C., 	l.l.O., 	for
appellant.
Paul E. Galter, of Butler, Galter, O’Brien & Boehm, for
appellee.
Wright, connolly, gerrArd, stephAn, mccormAck , and
miller-lermAn, JJ.
404 	277 nEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

miller-lermAn, J.
nATuRE OF CASE
in this breach of contract action, Heritage Administration
Services, inc. (Heritage), appeals the judgment entered after
trial by the district court for lancaster County awarding
Heritage’s former agent, Michael Albert, damages of $76,230,
covering the period May 1, 2004, through March 22, 2005.
Relying on a provision of the “Agent’s Agreement,” “VIII.
DISCONTINUANCE 	OF 	PROGRAM” 	(article 	Viii),
Heritage claims that damages should have been limited to a
30-day period beginning in May 2004. We conclude that article
Viii does not control this case and that the district court’s find-
ings are not clearly wrong. Accordingly, we affirm.
STATEMEnT OF FACTS
Heritage was formed in 1999 by Rod Beery. Heritage under-
wrote automobile service and warranty contracts and performed
claims administration for those contracts. Heritage used agents
to market its programs to automobile dealerships.
Albert, who was a personal acquaintance of Beery, began
working as an agent of Heritage in 1999. Albert and Heritage
entered into an “Agent’s Agreement” dated April 19, 1999
(hereinafter the Agreement), pursuant to which Albert would
market various Heritage vehicle service contract programs
to dealerships. The Agreement contained a provision, “V.
TERMINATION WIThOUT CAUSE” (article V), which
stated in part that the “Agreement may be canceled upon 30
days notice by either party.” The Agreement also contained
article Viii, which stated in part that “Heritage may discon-
tinue or withdraw from [Albert] any of its programs upon 30
days written notice.” At issue in this appeal is the “Engine for
life” program and specifically the commission Albert was to
receive due to the sale of Engine for life program contracts to
an auto dealer, Anderson Ford.
in 	2003, 	Heritage 	began 	a 	new 	warranty 	program
called Engine for life. On February 25, 2003, Albert and
Heritage signed a document titled “hERITAGE AGENT
AGREEMENT 	AMENDMENT 	ENGINE 	FOR 	LIFE
PROGRAM AUThORITy” (the Amendment). By its terms,
AlBERT v. HERiTAGE ADMin. SERVS. 	405
Cite as 277 neb. 404

the Amendment was to attach to and thereby become a part
of the Agreement. The Amendment authorized Albert to pro-
mote and sell the Engine for life program products to “auto
dealers” on Heritage’s behalf. The Amendment does not list
or otherwise limit the auto dealers to which Albert could sell
Engine for life program products. in the Amendment, the par-
ties agreed that all other terms and conditions of the Agreement
would remain unchanged. Beery assigned Albert to be the agent
responsible for managing Heritage’s Engine for life program
sales to Anderson Ford. The evidence shows that up to the time
in dispute, pursuant to an oral agreement, Albert was paid a
$30 commission for every Engine for life program contract
sold to Anderson Ford.
in April 2004, the Heritage board of directors removed
Beery from his position as president and chief operating offi-
cer. in May 2004, interim management was brought in to take
charge of operations. The interim management determined that
the Anderson Ford account should be removed from Albert and
given to another agent. Albert stopped receiving commissions
on the sale of Engine for life program products to Anderson
Ford in May 2004.
in challenging the district court’s findings, Heritage refers
this Court to certain testimony from the trial, not repeated
here, which it claims supports its argument on appeal that
it gave Albert oral notice in May 2004 and thereby limited
Albert’s commissions to 30 days thereafter under article Viii.
As the district court found and our review of the record shows,
Albert testified that in May 2004, he had a conversation with
a Heritage employee who was responsible for administering
commissions paid to agents. That employee told Albert that
he had learned that the new management would no longer
pay Albert commissions for sales to Anderson Ford. Albert
then spoke with Steve Goodrich, who was in a management
position with Heritage. Albert told Goodrich that he had
heard that he would no longer be paid such commissions.
Albert testified that instead of terminating the agreement by
which Albert had been the sales agent for the Anderson Ford
account, Goodrich told Albert that Anderson Ford was “not
going to have Engine for life any more.” Albert testified that
406 	277 nEBRASkA REPORTS

Goodrich specifically denied that another agent was being
given the account and was going to receive the Engine for
life program sales commissions. Albert further testified that
he proposed that he could try to sell the Engine for life pro-
gram products to another Ford dealership and that Goodrich
indicated that Albert could continue to sell the program’s
products and said “sure.” Peter knolla, a member of Heritage
management, testified at trial that in May 2004 a decision was
“made to discontinue paying . . . Albert for Engine for life
contracts involving Anderson Ford” and to give the account
to another agent. knolla also testified that at that time, the
interim management did not realize that Albert had a written
agreement with Heritage.
in February 2005, the management of Heritage learned of
the Agreement and the Amendment. Heritage provided Albert
a written notice dated February 14, 2005, that it was terminat-
ing the Agreement pursuant to article V. The notice stated that
termination would be effective 30 days from receipt of the let-
ter. A certified receipt indicated that the letter was delivered to
Albert on February 22.
Albert filed the present action on September 2, 2005. Albert
alleged that in May 2004, Heritage wrongfully discontinued
payment to him of the commissions on the Engine for life
program products sold through Anderson Ford. Albert sought,
inter alia, judgment in the amount of $30 for each of the thou-
sands of Engine for life contracts which continued to be sold
through Anderson Ford since May 2004.
Following a bench trial, the court entered an order dated
August 31, 2007, setting forth its findings of fact and conclu-
sions of law. in the order, the court noted that “[w]hen [Albert]
contacted Heritage concerning the rumor [regarding Anderson
Ford], he was informed that the Anderson Motor contract had
been terminated. in reality it had not, and another agent began
receiving commissions for the Anderson contract.” With regard
to written notice of termination of the Agreement, the court
made the following finding:
On February 14, 2005, Heritage sent actual written notice
to [Albert] informing him that his Agent’s Agreement was
being terminated. This notice was received on February
AlBERT v. HERiTAGE ADMin. SERVS. 	407
Cite as 277 neb. 404

22, 2005. Thus, the court finds that plaintiff is entitled to
commissions for contracts sold, pursuant to the Engine
for life program, through March 22, 2005.
The court found that Albert was entitled to a commission of
$30 for each of the 2,541 Engine for life program contracts
that the evidence established were purchased through Anderson
Ford between May 1, 2004, and March 22, 2005. The court
therefore entered judgment in favor of Albert in the amount
of $76,230.
Heritage appeals.
ASSiGnMEnTS OF ERROR
Heritage asserts that the district court erred in (1) failing to
find that Heritage gave Albert oral notice in May 2004 that it
was withdrawing the Anderson Ford Engine for life “account”
from him as Heritage was entitled to do under article Viii of
the Agreement and (2) awarding damages for the period end-
ing 30 days after written notice was given in February 2005
rather than limiting damages to the period ending 30 days after
oral notice that Heritage was withdrawing the Anderson Ford
Engine for life “account” given in May 2004 as Heritage was
entitled to do under article Viii of the Agreement.
STAnDARDS OF REViEW
[1,2] A suit for damages arising from breach of a contract
presents an action at law. Magistro v. J. Lou, Inc., 270 neb.
438, 703 n.W.2d 887 (2005). in a bench trial of a law action,
the trial court’s factual findings have the effect of a jury ver-
dict and will not be disturbed on appeal unless clearly wrong.
Aon Consulting v. Midlands Fin. Benefits, 275 neb. 642, 748
n.W.2d 626 (2008).
[3] The interpretation of a contract involves a question of
law, in connection with which an appellate court has an obliga-
tion to reach its conclusions independently of the determina-
tions made by the court below. State ex rel. Bruning v. R.J.
Reynolds Tobacco Co., 275 neb. 310, 746 n.W.2d 672 (2008).
AnAlYSiS
Our analysis on appeal is controlled by the assignments of
error which are asserted by Heritage. in challenging the district
408 	277 nEBRASkA REPORTS

court’s rulings, Heritage refers us exclusively to article Viii of
the Agreement, which provides in its entirety as follows:
VIII. DISCONTINUANCE OF PROGRAM
Heritage 	may 	discontinue 	or 	withdraw 	from
Representative any of its programs upon 30 days written
notice. if such discontinuance or withdrawal is required by
any State, Federal, or other legal authority, then Heritage
shall provide 10 days written notice to Representative of
the discontinuance of such Program.
Heritage claims that the district court’s rulings were in error
under article Viii. in considering the assignments of error as
framed by Heritage, we therefore focus on whether the district
court’s findings of facts after trial are either clearly wrong,
see Aon Consulting, supra, or whether its conclusions of law
amount to error as a matter of law under article Viii, see R.J.
Reynolds Tobacco Co., supra. upon review, we determine that
the court’s findings are supported by the record and are not
clearly wrong. Further, we conclude that the conclusions of law
are not in error.
Heritage claims on appeal that it gave Albert “verbal notice
in May of 2004 that he would no longer be the company’s agent
for the Anderson Ford [Engine for life] account.” Brief for
appellant at 11 (emphasis supplied). Heritage asserts that such
alleged notice was given and effective pursuant to article Viii,
the discontinuance of program provision of the Agreement.
Heritage claims that the damages awarded to Albert should
have been limited to the period ending 30 days after such oral
notice was given. We reject this argument.
in the Agreement, there are two provisions requiring notice
to Albert that are arguably relevant in this case. The first is a
provision in article V for termination of the Agreement with-
out cause, which states that the “Agreement may be canceled
upon 30 days notice by either party.” The second is a provi-
sion in article Viii, upon which Heritage relies in this appeal,
which states that “Heritage may discontinue or withdraw from
[Albert] any of its programs upon 30 days written notice.” The
district court found, and neither party disputes, that the writ-
ten notice Heritage provided to Albert in February 2005 was
actual notice as required under the termination without cause
AlBERT v. HERiTAGE ADMin. SERVS. 	409
Cite as 277 neb. 404

provision in article V that allowed either party to cancel the
Agreement upon 30 days’ notice. Heritage, however, asserts
that its communications in May 2004 were effective termina-
tion under article Viii.
With regard to the communications in May 2004, nei-
ther party claims they were written. The court found that in
May 2004, “[w]hen [Albert] contacted Heritage concerning
the rumor [regarding Anderson Ford], he was informed that
the Anderson Motor contract had been terminated. in reality
it had not, and another agent began receiving commissions for
the Anderson contract.” Elsewhere, the court found that 2,541
Engine for life program contracts were purchased by Anderson
Ford between May 1, 2004, and March 22, 2005.
The evidence in this case supports the court’s factual find-
ings in this regard, and they are not clearly wrong. Albert
testified that in May 2004, he heard a rumor from a Heritage
employee that Heritage would no longer pay Albert commis-
sions with respect to sales to Anderson Ford. Albert further
testified that he spoke with Goodrich, a member of Heritage
management, regarding the rumor. Goodrich told Albert that
the reason Albert would no longer receive the commissions
was because Anderson Ford would no longer be participating
in the Engine for life program. Goodrich specifically denied
to Albert that the commissions would be going to a differ-
ent agent.
There is no evidence that the Engine for life program in its
entirety was discontinued or that the program was withdrawn
from Albert. To the contrary, the evidence indicates that the
Engine for life program continued to be sold and that Albert
was permitted to sell the program elsewhere. in this regard,
we note that Goodrich assented to Albert’s suggestion that
Albert should continue to sell the Engine for life program to
another automobile dealer. Heritage did not present evidence
to contradict Albert’s testimony regarding the oral May 2004
communications between Albert and Heritage management.
For completeness, we note that knolla, another member of
Heritage management, testified that Heritage decided in May
2004 to stop paying Anderson Ford commissions to Albert and
to give the account to another agent; however, there was no
410 	277 nEBRASkA REPORTS

testimony that Heritage communicated such decision to Albert
in May 2004.
Article Viii of the Agreement upon which Heritage relies
provides that Heritage may “discontinue or withdraw from
[Albert] any of its programs upon 30 days written notice.”
(Emphasis supplied.) The evidence shows that Heritage did not
communicate to Albert in May 2004 that it was discontinu-
ing the Engine for life program in its entirety or that it was
withdrawing the Engine for life program from Albert. Even if
Heritage’s intention in May 2004 was in fact to withdraw the
program from Albert and to give the program to another agent,
there is no evidence that Heritage communicated such intention
to Albert in May 2004. Further, none of the communications at
issue in May 2004 were in writing.
Because Heritage did not communicate to Albert in writ-
ing in May 2004 that it was discontinuing the Engine for life
program in its entirety or withdrawing the program from Albert
in particular, we conclude that Heritage’s first assignment of
error claiming that the district court failed to find effective
termination under the terms of article Viii of the Agreement is
without merit.
Heritage’s second assignment of error and arguments regard-
ing the award of damages for greater than 30 days claim that
Heritage gave Albert oral notice in May 2004 that it was with-
drawing the Engine for life “account” and that such notice
effectively complied with the requirements of article Viii of
the Agreement, thereby limiting Albert’s damages to 30 days.
Heritage’s argument is not supported by the evidence or article
Viii of the Agreement, and we determine that Heritage’s sec-
ond assignment of error is without merit.
As noted above, article Viii covers the withdrawal of a “pro-
gram” which an agent may sell, as opposed to merely the with-
drawal of one “account” to which a program may be sold as
urged by Heritage. Further, article Viii requires that withdrawal
of a program from an agent such as Albert be in writing. The
evidence on which Heritage relies regarding the withdrawal of
the Anderson “account” orally is of no legal significance under
article Viii, which instead deals with withdrawal of a “pro-
gram.” The evidence indicates that Albert was still free to sell
AlBERT v. HERiTAGE ADMin. SERVS. 	411
Cite as 277 neb. 404

the Engine for life program to other auto dealers, and there-
fore, the “program” was not withdrawn from Albert and article
Viii does not apply or afford relief to Heritage. Thus, as noted
above, the evidence does not support the assertions of Heritage
that under article Viii the district court erred in awarding dam-
ages in excess of 30 days after May 2004.
COnCluSiOn
We determine that the district court’s findings are not clearly
wrong and the conclusions of law are not in error under article
Viii of the Agreement. We, therefore, conclude that the entry
of judgment in favor of Albert in the amount of $76,230 is cor-
rect under the facts and controlling agreements. We affirm the
judgment of the district court.
A ffirmed.
heAvicAn, C.J., not participating.
stAte of nebrAskA, Appellee , v.
JAmes r. pischel , AppellAnt.
762 n.W.2d 595
Filed March 20, 2009. 	no. S-08-359.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. ____: ____: ____: ____. in reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence. Such matters are for the finder of fact.
3. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. in reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, an appellate court will uphold its findings
of fact unless they are clearly erroneous. But an appellate court reviews de novo
the trial court’s ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search.
4. Jury Instructions: Appeal and Error. To establish reversible error from a
court’s refusal to give a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the law, (2) the tendered
instruction is warranted by the evidence, and (3) the appellant was prejudiced by
the court’s refusal to give the tendered instruction.
412 	277 nEBRASkA REPORTS