BSB Constr. v. Pinnacle Bank

are different in varying degrees from this case. The School
District’s core argument is that it should be free to structure
its workforce in the most economical way possible, in this
case, through an interlocal agreement for the sharing of a
teacher with another school district. It may well be that under
certain circumstances, a teacher-sharing arrangement between
school districts would be an appropriate and effective means
of controlling costs and conserving scarce resources. But under
Nebraska law, reduction of personnel cost is not itself a legal
basis for terminating the contract of a tenured teacher; the
savings must be achieved by a reduction in force. The district
court correctly concluded that no reduction in force occurred
in this case.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
BSB CONSTr. v. pINNaCLe BaNk 	1027
Cite as 278 Neb. 1027
BSB C onStruCtion, inC., A neBrASkA CorporAtion,
Appellee And CroSS-AppellAnt, v. pinnACle BAnk ,
A neBrASkA CorporAtion, AppellAnt
And CroSS-Appellee .
776 N.W.2d 188
Filed December 4, 2009. 	No. S-09-018.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
4. 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 erroneous.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

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 inference deducible
from the evidence.
6. Escrow: Words and Phrases. an escrow is properly defined as a written instru-
ment, which by its terms imports a legal duty that a deposit is to be kept by the
depositary until the performance of a condition or the happening of a certain
event and then to be delivered over to take effect.
7. Escrow. No precise form of words is necessary to create an escrow. The term
“escrow” need not be used.
8. Escrow: Negligence: Liability. Where a party assumes to and does act as the
depositary in escrow, it is absolutely bound by the terms and conditions of the
deposit and charged with a strict execution of the duties voluntarily assumed. It
is held to strict compliance with the terms of the escrow agreement. If it violates
instructions or acts negligently, it is ordinarily liable for any loss occasioned by
its breach of duty.
9. Contracts. The law does not require a party to perform a useless act.
10. Summary Judgment: Proof. a party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
11. ____: ____. Once the moving party makes a prima facie case, the burden to
produce evidence showing the existence of a genuine issue of material fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
12. 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.
13. Prejudgment Interest: Claims. prejudgment interest under Neb. rev. Stat.
§ 45-103.02 (reissue 2004) is recoverable only when the claim is liquidated, that
is, when there is no reasonable controversy as to either the plaintiff’s right to
recover or the amount of such recovery.
14. ____: ____. a two-pronged inquiry is required to determine whether a claim
is liquidated. There must be no dispute either as to the amount due or as to the
plaintiff’s right to recover.
appeal from the District Court for Lancaster County: pAul
d. merritt, Jr ., Judge. affirmed.
Todd r. McWha and S. David Schreiber, of Waite, McWha
& Harvat, for appellant.
Nichole S. Bogen, of Wolfe, Snowden, Hurd, Luers & ahl,
L.L.p., for appellee.
H eAviCAn, C.J., WrigHt, C onnolly, gerrArd, mCC ormACk ,
and miller-lermAn, JJ.
1028 	278 NeBraSka repOrTS

miller-lermAn, J.
NaTUre OF THe CaSe
This appeal involves the release of funds by appellant,
pinnacle Bank (pinnacle), from an escrow account for the
benefit of appellee and cross-appellant, BSB Construction,
Inc. (BSB), to an entity other than BSB. BSB had contracted
with TC properties LLC to construct two roads in a commu-
nity development. an online bank account was opened with
pinnacle, and money was deposited in the account to pay BSB.
When additional costs for construction of the development
arose, TC properties transferred money out of the account and
into one of TC properties’ other accounts with pinnacle to
cover the additional costs.
BSB filed an action in the district court for Lancaster
County. BSB claimed, inter alia, that pinnacle breached the
terms of the agreements governing the bank account. Upon
summary judgment, the district court concluded that the
bank account was an escrow account and that pinnacle had
breached its duties to the detriment of BSB. The district
court thereafter held a trial on certain amounts owed to BSB.
pinnacle appeals the money judgment entered against it, and
BSB cross-appeals, challenging the amount of the damages
awarded and the denial of attorney fees and prejudgment
interest. We affirm.
STaTeMeNT OF FaCTS
TC properties was established in 2000 to create the Trails
Crossing 	resort 	project, 	a 	resort-type 	community 	on 	the
south shore of Lake McConaughy in keith County, Nebraska.
TC properties had a planned unit development approved by
keith County officials that included 1,700 residential units, a
commercial complex area, two golf courses, and a variety of
other amenities.
Dennis rosengarten was the president and general manager
of TC properties and was responsible for the financial and
legal aspects of the project. Dan eggers was a TC properties
employee 	who 	was 	responsible 	for 	handling 	all 	of 	the
construction-related issues on the project, including supervis-
ing the project manager, Todd Hatterman.
BSB CONSTr. v. pINNaCLe BaNk 	1029
Cite as 278 Neb. 1027

The lender for the project was SLF Series a, LLC, a
Utah limited liability company. SLF Series a designated
T Capital partners as the administrator for the project, whose
duties involved overseeing the progress of the construction,
the distribution of funds, and the payment of submitted
draw requests.
In april 2004, TC properties contracted with BSB to con-
struct two roads. The procedure for paying BSB was set forth
in the road construction contract, which stated:
Upon approval of progress payment by [the project engi-
neer] and [TC properties], [TC properties] will submit a
“Draw authorization” form . . . to [T Capital partners]
for approval. This authorization will include the sig-
natures of [TC properties, the project engineer, and
T Capital partners] for approval of payout as defined in
paragraph 502.2 [sic] above. Once approved for payout,
an officer of pinnacle Bank of Ogallala will acknowl-
edge receipt of “Draw authorization” and proceed to
issue payment of [BSB’s] progress payment invoice from
the “draw-down” account established at pinnacle Bank
by [T Capital partners and TC properties]. [T Capital
partners] agrees to fund the draw-down account in
the amount of [BSB’s] bid defined in 501.D above.
proof of these funds will be submitted to [BSB] prior
to start-up.
Norma Lashley (Norma), as president of BSB, signed the
contract. Norma has been the president of BSB since 2002.
In april 2004, Norma oversaw all aspects of the construction
business and all contracts and was solely responsible for the
company’s financial matters. Ted Lashley (Ted), Norma’s son,
was vice president of BSB and put together bids on projects.
Ted’s bids had to be approved by Norma before they could
be submitted.
On april 	22, 	2004, TC 	properties 	opened 	an 	account
(account 	31101) 	with 	pinnacle, 	a 	Nebraska 	corporation,
located in Ogallala, Nebraska. This account, which is at issue
in this case, was opened to pay BSB under the road construc-
tion contract discussed above. The account was an online
account and was opened because BSB wanted assurance that
1030 	278 NeBraSka repOrTS

money would be available to pay it under the terms of the road
construction contract, and T Capital partners was not willing
to deposit its financing money into TC properties’ general
account. T Capital partners wanted to exercise some control
over the distribution of the moneys being lent on the Trails
Crossing resort project.
On april 22, 2004, to address the concerns of T Capital
partners and BSB, TC properties, T Capital partners, and
pinnacle entered into an addendum with respect to the account.
The addendum stated:
1. account [31101] is a single payer account only
to BSB . . . .
2. pinnacle . . . is not responsible to verify the authen-
ticity of any of the signatures of the other signatories on
the Draw authorization Form and shall have not [sic]
liability in connection therewith.
3. . . . Hatterman is hereby authorized to release
such 	funds 	from 	said 	account 	each 	time 	the 	Draw
authorization Form pertaining thereto is duly executed by
all the Signatories.
On april 22, 2004, $338,250.47 was deposited into the
account, representing that the funds were available to cover the
amount of BSB’s initial contract price.
In early May 2004, TC properties became aware that a new
water law was going to require it to have more water avail-
able to the project by July 1. In order to comply with the new
law, TC properties had to have wells drilled or contracts in
place prior to July 1, to provide the additional water required.
T Capital partners was not willing to have money from account
31101 used for drilling or acquisition. Nevertheless, between
May 10 and September 30, in order to cover the new expenses,
eggers, with the authorization of rosengarten, transferred
$92,000 online out of account 31101 to another TC properties
account serviced by pinnacle. The $92,000 was paid to people
and entities other than BSB.
eggers testified that once discovering the need for addi-
tional water, he had a conversation with Ted and rosengarten.
The witnesses dispute what was discussed in the conver-
sation. 	eggers 	contends 	that 	after 	he 	informed 	Ted 	that
BSB CONSTr. v. pINNaCLe BaNk 	1031
Cite as 278 Neb. 1027

without additional funds, the project could not go forward,
Ted approved the transfer of money out of account 31101 to
another TC properties account. Ted denies that he had this con-
versation. rosengarten remembers the conversation but does
not recall Ted’s consenting to eggers’ transferring the funds.
Norma stated that she was not informed by Ted or anyone at
TC properties prior to October 2004 that the money was being
transferred out of account 31101.
BSB attempted to recover the funds removed from the
account but was unsuccessful. BSB thereafter filed this action
in the district court for Lancaster County against pinnacle,
claiming, inter alia, that pinnacle breached the addendum
and was negligent in administering the account. The parties
filed cross-motions for summary judgment. The district court
received evidence and granted partial summary judgment
in favor of BSB. The district court concluded that account
31101 was an escrow account and found that there were no
genuine issues as to any material facts as to whether BSB
was a third-party beneficiary of the addendum to the account,
whether pinnacle violated the terms of the april 22, 2004,
addendum to account 31101, and whether BSB was owed
$56,445.09 in damages for retainage and for trenching and
seedwork. The district court found there were genuine issues
of material fact concerning the amount owed to BSB with
respect to the delivery and placement of the construction
material referred to as “riprap” and partially denied BSB’s
motion on this ground and set this aspect of the damage claim
for trial. The district court denied pinnacle’s motion for sum-
mary judgment.
The case was tried on the issue of the riprap. after trial,
the district court entered an order finding that BSB was owed
$38,040.12 in damages for the riprap and that BSB was not
entitled to attorney fees or prejudgment interest. pinnacle
appealed, and BSB cross-appealed.
aSSIGNMeNTS OF errOr
pinnacle claims, restated and summarized, that the district
court erred in (1) concluding that the pinnacle account 31101
was an escrow account and that as such, pinnacle was liable
1032 	278 NeBraSka repOrTS

to BSB for any losses that resulted if pinnacle violated the
terms of the addendum; (2) finding that BSB’s failure to obtain
a signed draw authorization form was not a bar to BSB’s
recovery; (3) denying pinnacle’s request to raise an issue of
“contract interpretation” at the pretrial conference; (4) finding
that there was no issue of material fact whether BSB consented
to TC properties’ withdrawals from account 31101; and (5)
awarding BSB the sum of $38,040.12 for the delivery and
placement of the riprap. On cross-appeal, BSB claims that the
district court erred in (1) awarding it $38,040.12 rather than
$41,341.20 for the riprap and (2) failing to award BSB attorney
fees and prejudgment interest.
STaNDarDS OF reVIeW
[1] When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of
the conclusion reached by the trial court. Harvey v. Nebraska
Life & Health Ins. Guar. Assn., 277 Neb. 757, 765 N.W.2d
206 (2009).
[2,3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Hauptman, O’Brien v. Turco, 277
Neb. 604, 764 N.W.2d 393 (2009). In reviewing a summary
judgment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence. Id.
[4,5] In a bench trial of a law action, the trial court’s fac-
tual findings have the effect of a jury verdict and will not be
disturbed on appeal unless clearly erroneous. Pick v. Norfolk
Anesthesia, 276 Neb. 511, 755 N.W.2d 382 (2008). In review-
ing 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. Id.
BSB CONSTr. v. pINNaCLe BaNk 	1033
Cite as 278 Neb. 1027

aNaLYSIS
Appeal: Pinnacle Account 31101 Was an Escrow Account,
and Pinnacle Was Bound by the Duties of
an Escrow Account Depositary.
pinnacle claims on appeal that the district court erred in
concluding that the bank account in question was an escrow
account. We reject this claim.
pinnacle argues that account 31101 was not an escrow
account and that TC properties was allowed to transfer funds
from the account. pinnacle claims that the terms of the account
do not satisfy the definition of an escrow account. pinnacle
notes that the account was not titled as an escrow account
but instead was called a single-payer account. pinnacle sug-
gests that the proper characterization of the account cre-
ated a genuine issue of material fact which precluded sum-
mary judgment.
[6,7] This court has previously stated that “‘an escrow . . .
is properly defined as “a written instrument, which by its terms
imports a legal [duty that a deposit is] to be kept by the deposi-
tary until the performance of a condition or the happening of a
certain event and then to be delivered over to take effect.” . . .’”
Pike v. Triska, 165 Neb. 104, 119, 84 N.W.2d 311, 321 (1957).
See, similarly, In re ANR Advance Transp. Co., Inc., 247 B.r.
771 (e.D. Wis. 2000); 28 am. Jur. 2d Escrow § 1 (2000);
Black’s Law Dictionary 20 (9th ed. 2009) (defining “escrow
account”). It is well settled that “[n]o precise form of words is
necessary to create an escrow. The term ‘escrow’ need not be
used.” 28 am. Jur. 2d, supra, § 6 at 8-9.
We agree with the district court that as a matter of law,
the account at issue in this case was an escrow account.
although account 31101 was not titled as an escrow account,
given the addendum, it possessed all of the hallmarks of an
escrow, including that pinnacle was required to hold the money
deposited in the account until the happening of the identified
condition, which in this case was the receipt of a draw autho-
rization form signed by the specified persons, at which time
the money could be transferred solely to BSB. Therefore, the
district court properly determined that account 31101 was an
escrow account.
1034 	278 NeBraSka repOrTS

[8] With respect to the duties of a depositary of an escrow,
our jurisprudence establishes:
Where a [party] assumes to and does act as the deposi-
tary in escrow, [it] is absolutely bound by the terms and
conditions of the deposit and charged with a strict execu-
tion of the duties voluntarily assumed. [It] is held to strict
compliance with the terms of the escrow agreement. If [it]
violates instructions or acts negligently, [it] is ordinarily
liable for any loss occasioned by [its] breach of duty.
Katleman v. U. S. Communities, Inc., 197 Neb. 443, 447, 249
N.W.2d 898, 901 (1977). See, also, A.G.A. Inc. v. First Nat.
Bank, 239 Neb. 74, 474 N.W.2d 655 (1991).
Because we have concluded that pinnacle account 31101
was an escrow account, pinnacle was required to strictly com-
ply with the terms of the addendum, including the requirement
that payments be made solely to BSB and not without a draw
authorization form signed by TC properties and T Capital
partners representatives. By allowing TC properties to transfer
significant sums into another account, pinnacle violated these
terms and is liable for the loss suffered by BSB.
[9] pinnacle devotes considerable argument on appeal to the
effect that BSB is precluded from recovering losses attributable
to the lack of sufficient funds in account 31101, because BSB
did not submit a properly endorsed draw authorization form
for the requested sums prior to filing suit. Under the control-
ling documents, in the ordinary course, the draw authorization
form would include the signature of a TC properties represent-
ative. However, because TC properties was in the process of
improperly diminishing the funds in the account, we believe it
is neither logical nor required that BSB have attempted in vain
to obtain the signature of the very entity that was in the course
of improperly transferring the funds out of account 31101 as
a condition precedent to BSB’s recovery of the funds taken.
The law does not require a party to perform a useless act.
See Bank of Papillion v. Nguyen, 252 Neb. 926, 567 N.W.2d
166 (1997).
In sum, because account 31101 was an escrow account, and
because pinnacle did not comply with the terms and conditions
of the agreement governing the account, we affirm the district
BSB CONSTr. v. pINNaCLe BaNk 	1035
Cite as 278 Neb. 1027

court’s decision that there were no genuine issues of material
fact whether pinnacle was liable for the losses BSB suffered
as a result of TC properties’ improperly removing funds from
the account.
Our resolution of these assignments of error effectively
resolves pinnacle’s assigned error claiming that the district
court erred when it denied pinnacle’s request to raise at the
trial what pinnacle described as an issue of “contract inter-
pretation.” In its pretrial conference memorandum, which was
submitted after the entry of summary judgment, pinnacle stated
that there existed an issue of law as to whether “the construc-
tion contract require[d] that TC properties and [T] Capital
[partners] fund pinnacle Bank Checking account [31101] for
both the original contract amount and change orders.” BSB
objected to pinnacle’s raising this issue at this late stage in
the proceedings. The district court directed the parties to brief
the matter. after briefing, the court entered an order denying
pinnacle’s request to raise the issue of contract interpretation.
The district court reasoned that because the court had entered
summary judgment on the contractual status of the parties, this
issue had been implicitly resolved and the only issue remaining
for trial was the amount BSB was owed for the riprap.
We agree with the district court’s reasoning and conclusion
on this issue. The additional “contract interpretation” issue
raised by pinnacle goes to the issue of pinnacle’s liability
under the controlling agreements and the law. The partial sum-
mary judgment order entered by the district court resolved the
issue of pinnacle’s liability, and the only issue remaining was
the amount of damages owed BSB for the riprap. Therefore,
the issue of “contract interpretation” raised by pinnacle in the
pretrial memorandum had been resolved and was not relevant
to the trial. The court properly disallowed the issue to be raised
at trial.
Appeal: There Was No Genuine Issue of Material Fact
Whether BSB Consented to the Withdrawal of Funds
by TC Properties From Account 31101.
pinnacle next argues that there was a genuine issue of mate-
rial fact whether BSB consented to the withdrawal of funds by
1036 	278 NeBraSka repOrTS

TC properties from account 31101, precluding the grant of
summary judgment in favor of BSB on the issue of liability.
pinnacle claims in effect that BSB waived the escrow features
of the account. In support of this argument, pinnacle points to
testimony relative to a conversation among Ted, eggers, and
rosengarten about which eggers testified and stated that Ted
agreed that TC properties could transfer the funds. although
there may be a dispute as to this conversation, given the terms
of the escrow account and Ted’s unchallenged lack of authority,
any dispute is not material.
The district court concluded that there was no “waiver” by
BSB which would allow TC properties to remove the funds
from the account. The court reasoned that, in addition to
account 31101’s being an escrow account, it is undisputed that
Ted did not have the authority to act on behalf of BSB with
respect to the disposition of funds. Instead, the undisputed evi-
dence showed that Norma had that authority and that Norma
did not participate in the conversation. Further, as the court
noted, rosengarten, who was said to be a party to the conversa-
tion with eggers and Ted, does not recall Ted’s giving eggers
permission to remove the funds. Under the evidence, the court
noted that pinnacle was at no time informed that TC properties
had purportedly obtained BSB’s consent to remove the funds.
The district court determined that, even taking the inferences
in favor of pinnacle, there had not been an effective agreement
between BSB and TC properties about which pinnacle was
informed, allowing TC properties to remove the funds.
[10,11] Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose no genuine issue
regarding any material facts or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Lamar Co. v. City of Fremont,
ante p. 485, 771 N.W.2d 894 (2009). a party moving for sum-
mary judgment must make a prima facie case by producing
enough evidence to demonstrate that the movant is entitled to
judgment if the evidence were uncontroverted at trial. Appleby
v. Andreasen, 276 Neb. 926, 758 N.W.2d 615 (2008). Once the
moving party makes a prima facie case, the burden to produce
evidence showing the existence of a genuine issue of material
BSB CONSTr. v. pINNaCLe BaNk 	1037
Cite as 278 Neb. 1027

fact that prevents judgment as a matter of law shifts to the
party opposing the motion. See id.
We agree with the district court’s determination that BSB
demonstrated its entitlement to judgment and that pinnacle
did not show the existence of a genuine issue of material fact
whether BSB consented to the removal of the funds. although
there may have been a dispute about the contents of the con-
versation on which pinnacle relies, the undisputed fact that Ted
was without authority to consent to the transfer of funds out of
escrow account 31101 renders any such dispute not material.
Therefore, we affirm the district court’s grant of partial sum-
mary judgment in favor of BSB.
Appeal and Cross-Appeal: The Trial Court
Did Not Err in Awarding $38,040.12
to BSB for the Riprap.
On cross-appeal, BSB claims that the district court erred in
awarding it $38,040.12 rather than $41,341.20 for the riprap.
On appeal, pinnacle claims that BSB’s evidence was insuffi-
cient to establish its damages for the riprap. We find no error
by the district court.
On appeal, both parties challenge the amount of damages
awarded for the riprap. pinnacle argues that the trial court’s
award was in error because there was no support in the record
for the amount awarded and that it is impossible to determine
how the court arrived at the figure it awarded. BSB argues that
the court erred in not awarding it the $41,341.20 it requested
in damages. BSB contends that it presented evidence that
showed it was due $42,944.40 for the riprap and that by remov-
ing 96 tons and mitigating its damages by $1,603.20, it was
owed $41,341.20.
[12] 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. State ex rel. Stenberg v. Consumer’s Choice Foods, 276
Neb. 481, 755 N.W.2d 583 (2008).
In reviewing a judgment awarded in a bench trial of a law
action, an appellate court does not reweigh evidence, but
1038 	278 NeBraSka repOrTS

considers the evidence in the light most favorable to the suc-
cessful party and resolves evidentiary conflicts in favor of the
successful party, who is entitled to every reasonable inference
deducible from the evidence. Pick v. Norfolk Anesthesia, 276
Neb. 511, 755 N.W.2d 382 (2008).
With respect to the issue of damages relative to the riprap,
at trial, the court heard the testimony of Ted and Norma of
BSB and that of Hatterman, the Trails Crossing resort project
manager. Further, the district court reviewed evidence submit-
ted, including invoices and certificates for payments. In its
order, the court found that exhibit 14 showed that BSB was
owed $42,944.40 for the riprap on “Change Order 6,” as of
November 2004. The court found the evidence established that
prior to that date, 840.6 tons of riprap had been delivered to the
Trails Crossing resort project, and of that 840.6 tons, 96 tons
were removed and delivered to another entity, leaving 744.6
tons. The trial court noted in its order the discrepancy between
the testimony of Ted and the testimony of Hatterman with
respect to the amount of riprap at the construction site.
as pinnacle acknowledges, there was a conflict in the evi-
dence at trial concerning the amount of riprap that was actu-
ally “placed.” The following exchange occurred at the trial in
regard to this conflict:
THe COUrT: Okay. and your position would be that
[the riprap] that’s laid gets the $60 [a ton]; [the riprap]
that’s not laid, does not get 8 to $10 because it hasn’t
been laid yet, and so that’s taken off the 60, so it would
be either 50 or 52.
[Counsel for pinnacle]: Correct.
THe COUrT: Once you determine how much is left
out there.
[Counsel for pinnacle]: exactly.
. . . .
THe COUrT: . . . I mean, at least what I heard [coun-
sel for pinnacle] talking about was the difference between
laid and not laid. and the testimony was, laid, the cost is
eight to ten bucks. So if I determine “x” amount wasn’t
laid, regardless of what was invoiced for, then I would
take that amount and just subtract, from 60, eight to ten
BSB CONSTr. v. pINNaCLe BaNk 	1039
Cite as 278 Neb. 1027

dollars and then multiply that figure times whatever I
determine has not been laid. . . .
Based on this record, it is clear that in weighing the evidence
at trial, the district court accepted BSB’s evidence showing
that after the removal of the 96 tons of riprap, BSB was owed
$41,341.20, but credited pinnacle $3,301.08 for the riprap it
concluded was not “placed.” Taking all inferences in favor of
the successful party, and not reweighing the evidence presented
to the trial court, see Pick v. Norfolk Anesthesia, supra, we
determine that the award is reasonably related to the evidence
presented at trial, and we reject the assignments of error on
appeal and cross-appeal related to this issue and affirm the dis-
trict court’s award of damages at trial.
Cross-Appeal: It Was Not Error for the Trial Court
to Deny BSB Attorney Fees and
Prejudgment Interest.
The remaining issues on cross-appeal are BSB’s claims that
it was entitled to attorney fees and prejudgment interest. We
determine that the district court did not err when it denied
BSB’s request for attorney fees and prejudgment interest.
Attorney Fees.
BSB argues that it was owed attorney fees pursuant to
various provisions of Nebraska’s Uniform Commercial Code
(U.C.C.), Neb. U.C.C. § 1-101 et seq. (reissue 2001). The fol-
lowing U.C.C. provisions are relevant to our consideration of
BSB’s cross-appeal claiming attorney fees.
Section 4a-305 states:
(a) If a funds transfer is completed but execution
of a payment order by the receiving bank in breach of
section 4a-302 results in delay in payment to the bene-
ficiary, the bank is obliged to pay interest to either the
originator or the beneficiary of the funds transfer for the
period of delay caused by the improper execution. except
as provided in subsection (c), additional damages are
not recoverable.
(b) If execution of a payment order by a receiving bank
in breach of section 4a-302 results in (i) noncompletion
of the funds transfer, (ii) failure to use an intermediary
1040 	278 NeBraSka repOrTS

bank designated by the originator, or (iii) issuance of a
payment order that does not comply with the terms of the
payment order of the originator, the bank is liable to the
originator for its expenses in the funds transfer and for
incidental expenses and interest losses, to the extent not
covered by subsection (a), resulting from the improper
execution. except as provided in subsection (c), addi-
tional damages are not recoverable.
. . . .
(e) reasonable attorney’s fees are recoverable if demand
for compensation under subsection (a) or (b) is made and
refused before an action is brought on the claim. If a
claim is made for breach of an agreement under subsec-
tion (d) and the agreement does not provide for damages,
reasonable attorney’s fees are recoverable if demand for
compensation under subsection (d) is made and refused
before an action is brought on the claim.
Section 4a-103 defines “payment order” as follows:
(1) “payment order” means an instruction of a sender
to a receiving bank, transmitted orally, electronically, or
in writing, to pay, or to cause another bank to pay, a fixed
or determinable amount of money to a beneficiary if:
(i) the instruction does not state a condition to payment
to the beneficiary other than time of payment.
The thrust of BSB’s claim is that under § 4a-305(e), a bank
can be liable for attorney fees in connection with a wrongful
payment if demand for compensation is made on the bank for
payment and payment is refused before an action is brought
on the claim. We will assume but do not decide that the trans-
fers on which BSB relies were “funds transfers” referred to in
§ 4a-305(a) and (b). By definition, to fall within the scope of
§ 4a-305, upon which BSB relies for its claim of attorney fees,
a transaction must begin with a “payment order,” the definition
of which refers to a “receiving bank” or “another bank,” which
we will assume without deciding includes pinnacle.
In this case, BSB claims that the June 8, 2005, demand letter
sent by its counsel to pinnacle requesting payment after dis-
covery of the missing funds should be treated as its “payment
order.” The letter stated in relevant part: “please be advised that
BSB CONSTr. v. pINNaCLe BaNk 	1041
Cite as 278 Neb. 1027

this office needs to receive a cashier’s check or money order
payable to BSB . . . in the amount of $95,897.56 no later
than 5:00 p.m. on Monday, June 17, 2005.”
By definition, the instructions associated with a “payment
order” must not state conditions, and cases and treatises have
noted that in determining whether article 4a applies, it is
necessary first to determine if the payment order is or is not
conditional. See Trustmark Ins. Co. v. Bank One, Arizona, NA,
202 ariz. 535, 48 p.3d 485 (ariz. app. 2002) (citing alvin C.
Harrell, UCC Article 4A, 25 Okla. City U.L. rev. 293 (2000)).
White and Summers’ treatise on the U.C.C. explains that
although a “payment order” need not order immediate pay-
ment, and may specify that a certain amount of money must be
paid on a certain date to a particular beneficiary, imposition of
other conditions are inconsistent with the definition of a “pay-
ment order.” The treatise states:
To understand why the drafters did not wish to involve
banks in inquiries into whether other conditions have
occurred, let us return to the transactions that are contem-
plated by article 4a: “The function of banks in a funds
transfer under article 4a is comparable to the role of
banks in the collection and payment of checks in that it is
essentially mechanical in nature. The low price and high
speed that characterize funds transfers reflect this fact.
Conditions to payment . . . other than time of payment
impose responsibilities on [the] bank that go beyond those
in article 4a funds transfers.”
3 James J. White & robert S. Summers, Uniform Commercial
Code § 22-3 at 25 (5th ed. 2008).
even assuming that the June 8, 2005, letter was intended
to transfer funds, compare § 4a-104(a), and even assuming
pinnacle could be characterized as a “receiving bank,” compare
§ 4a-305, the demand letter failed to meet the test of certainty
required for a “payment order” under § 4a-103(a)(1). By its
terms, the letter provides for a period of time during which the
amount demanded may be paid but does not direct payment be
made on a date certain and no other. We conclude that BSB’s
reliance on article 4a of the U.C.C. as a basis for attorney
fees is misplaced. Therefore, we conclude that it was not error
1042 	278 NeBraSka repOrTS

for the district court to deny BSB’s request for attorney fees
under § 4a-305.
Prejudgment Interest.
BSB asserts that it is entitled to prejudgment interest based
on two distinct theories. First, BSB argues that it is entitled
to prejudgment interest pursuant to Neb. rev. Stat. § 45-104
(reissue 2004), because pinnacle wrongfully “retained” BSB’s
funds. In the alternative, BSB argues that it was entitled to
prejudgment interest pursuant to Neb. rev. Stat. § 45-103.02
(reissue 2004) on the $56,445.09 awarded upon partial sum-
mary judgment, which it characterizes as the “liquidated”
portion of its damages. We conclude that under either theory,
it was not error for the district court to deny BSB prejudg-
ment interest.
Section 45-104 states:
Unless otherwise agreed, interest shall be allowed at
the rate of twelve percent per annum on money due on
any instrument in writing, or on settlement of the account
from the day the balance shall be agreed upon, on money
received to the use of another and retained without the
owner’s consent, express or implied, from the receipt
thereof, and on money loaned or due and withheld by
unreasonable delay of payment. Unless otherwise agreed
or provided by law, each charge with respect to unsettled
accounts between parties shall bear interest from the
date of billing unless paid within thirty days from the date
of billing.
as pinnacle notes in opposition to BSB’s claim for pre-
judgment interest, § 45-104 provides the interest rate for
prejudgment interest upon the happening of events outlined
in the statute. The actions of pinnacle at issue in this case
involve pinnacle’s release of funds to an entity other than BSB.
as such, the subject matter of the present action is not one
listed in § 45-104 and prejudgment interest is not warranted
under § 45-104.
[13,14] BSB also claims that it is entitled to prejudgment
interest under § 45-103.02 on the purported liquidated portion
of its damages. See Travelers Indemnity Co. v. International
BSB CONSTr. v. pINNaCLe BaNk 	1043
Cite as 278 Neb. 1027

Nutrition, 273 Neb. 943, 734 N.W.2d 719 (2007). prejudgment
interest under § 45-103.02 is recoverable only when the claim
is liquidated, that is, when there is no reasonable controversy
as to either the plaintiff’s right to recover or the amount
of such recovery. Travelers Indemnity Co. v. International
Nutrition, supra. a two-pronged inquiry is required to deter-
mine whether a claim is liquidated. There must be no dispute
either as to the amount due or as to the plaintiff’s right to
recover. Id.
BSB argues it is entitled to prejudgment interest on the por-
tion of damages it was awarded on summary judgment, which
damages it claims were liquidated. However, our review of
the record indicates that there was a reasonable controversy
as to the nature and extent of BSB’s work, and therefore, the
damages were uncertain and required evidentiary testing at the
summary judgment hearing and at trial. We cannot say that
the damages were liquidated. Therefore, it was not error for
the trial court to deny BSB prejudgment interest and this deci-
sion is affirmed.
CONCLUSION
With respect to the appeal, we conclude that the district
court was correct when it concluded that account 31101,
the pinnacle single-payer account controlled by the adden-
dum, was an escrow account. as such, pinnacle had a duty
to comply with the terms of the addendum governing the
account and to release the funds only to BSB. By releasing
funds to an entity other than BSB, pinnacle failed to comply
with the terms of the addendum. The district court correctly
determined that pinnacle was liable to BSB, and we affirm
the district court’s grant of partial summary judgment in favor
of BSB and the damages awarded pursuant to the judgment
after trial.
With respect to the cross-appeal, because the damages award
for the riprap was supported by the evidence, we affirm the
award of damages at trial. We further conclude that the demand
letter sent by BSB does not qualify as a payment order as
defined in the U.C.C. and that the U.C.C. provision upon
which BSB relies does not support an award of attorney fees.
1044 	278 NeBraSka repOrTS

Finally, we determine that under the facts of this case, there
is no basis for an award of prejudgment interest to BSB. The
district court’s decision is affirmed in all respects.
A ffirmed.
StepHAn, J., not participating.
COrONa De CaMarGO v. SCHON 	1045
Cite as 278 Neb. 1045
mAriA ofeliA C oronA de CAmArgo, AS perSonAl
repreSentAtive of tHe eStAte of JoAquin
CAmArgo -mArtinez , Sr ., AppellAnt, v.
A rtHur J. SCHon, An individuAl ,
et Al ., AppelleeS.
mAriA ofeliA C oronA de CAmArgo, AS perSonAl
repreSentAtive of tHe eStAte of C riStoBAl
CAmArgo -C oronA, AppellAnt, v.
A rtHur J. SCHon, An individuAl ,
et Al ., AppelleeS.
776 N.W.2d 1
Filed December 4, 2009. 	Nos. S-09-166, S-09-167.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the court below.
2. Limitations of Actions: Appeal and Error. Which statute of limitations applies
is a question of law that an appellate court must decide independently of the
conclusion reached by the trial court.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
4. Summary Judgment: Motions to Dismiss: Rules of the Supreme Court:
Pleadings. Under Neb. Ct. r. pldg. § 6-1112(b)(6), when a matter outside the
pleadings is presented by the parties and accepted by the trial court, a defendant’s
motion to dismiss must be treated as a motion for summary judgment.
5. Summary Judgment: Motions to Dismiss: Notice. When receiving evidence
which converts a motion to dismiss into a motion for summary judgment, it is
important for the trial court to give the parties notice of the changed status of
the motion.
6. Wrongful Death: Damages. Wrongful death recovery is limited to the loss suf-
fered by a decedent’s next of kin, and it provides no basis upon which to recover
a decedent’s own damages.