State ex rel. Wagner v. Gilbane Bldg. Co.

But we do find a genuine issue of material fact with respect to
A.W.’s allegation that LPS breached its duty of reasonable care
to C.B. Specifically, we hold that pursuant to the principles
articulated in the Restatement (Third) of Torts, foreseeability
is not part of the duty analysis performed by the court, but
is part of the breach analysis performed by the finder of fact.
And while the evidence of prior criminal activity in the neigh-
borhood of Arnold Elementary School was not sufficient to
support a conclusion that a sexual assault on the premises was
reasonably foreseeable, there was sufficient evidence for rea-
sonable minds to differ as to whether Siems’ assault of C.B.
was a foreseeable consequence of LPS’ failure to initially note
Siems’ entry into the school or to carefully monitor Siems,
and C.B., after it was determined that Siems had entered
the school.
Therefore, we reverse the district court’s summary judgment
and remand the cause for further proceedings with respect to
LPS’ allegedly negligent conduct after Siems entered Arnold
Elementary School.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
stephan, J., not participating.
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	223
Cite as 280 neb. 223
state of nebRaska ex Rel . l. tim WagneR, diRectoR of
insuRance of the state of nebRaska , as liquidatoR
of amWest suRety insuRance company, appellee ,
v. gilbane building company, a R hode island
coRpoRation, appellant.
786 n.W.2d 330
Filed July 16, 2010. 	no. S-09-879.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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.
2. Summary Judgment: Appeal and Error. in reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom the
judgment was granted, and the court gives that party the benefit of all reasonable
inferences deducible from the evidence.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

3. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
4. Summary Judgment: Proof. A prima facie case for summary judgment is shown
by producing enough evidence to demonstrate that the movant is entitled to a
judgment in its favor if the evidence were uncontroverted at trial.
5. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
6. Insurance: Words and Phrases. An insurer is considered insolvent under
the nebraska insurers Supervision, Rehabilitation, and Liquidation Act if it is
unable to pay its obligations when they are due or when its admitted assets do
not exceed its liabilities plus the greater of any capital and surplus required by
law to be maintained or the total par or stated value of its authorized and issued
capital stock.
7. Summary Judgment: Evidence: Affidavits. Evidence that may be received on a
motion for summary judgment includes affidavits.
8. Debtors and Creditors: Time. Retrojection is the inverse of projection. A retro-
jection analysis begins with a debtor’s financial condition at a certain point in
time and extrapolates back in time in an attempt to show that the debtor must
have been insolvent at some earlier relevant time.
9. ____: ____. Retrojection is a widely used method for determining insolvency, and
courts have concluded that if the retrojection period stretches too far back from
the date on which the insolvency of the debtor is known, it is untenable.
10. Debtors and Creditors: Time: Evidence. Courts will only consider retrojection
if the evidence of insolvency on the certain date is accompanied by evidence
that the debtor’s financial condition did not change during the pendency period
between the time of the payment and the date of proven insolvency.
11. Courts: Appeal and Error. After receiving a mandate, a trial court is without
power to affect rights and duties outside the scope of the remand from an appel-
late court.
Appeal from the district Court for Lancaster County: John
a. colboRn, Judge. Affirmed.
Robert F. Craig and Anna M. Bednar, of Robert F. Craig,
P.C., for appellant.
Michael S. degan, of Husch, Blackwell & Sanders, L.L.P., and
Robert L. nefsky, of Rembolt Ludtke, L.L.P., for appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
224 	280 nEBRASkA REPoRTS

milleR-leRman, J.
nATURE oF THE CASE
This case is on appeal to this court for the second time. See
State ex rel. Wagner v. Gilbane Bldg. Co., 276 neb. 686, 757
n.W.2d 194 (2008) (Gilbane I). The case generally involves
whether four payments made by Amwest Surety insurance
Company (Amwest) to appellant gilbane Building Company
(gilbane), shortly before Amwest went into liquidation, were
voidable preferential transfers under the nebraska insurers
Supervision, Rehabilitation, and Liquidation Act (niSRLA). in
Gilbane I, we concluded that three of the four payments were
preferential transfers. However, in Gilbane I, we also con-
cluded that the record was not sufficient to reach a conclusion
on the validity of the transfer on January 5, 2001 (January 2001
transfer), and that the district court had erred when it had deter-
mined that the January 2001 transfer was also preferential. This
court affirmed in part and reversed in part, and remanded the
cause for further proceedings. on remand, appellant, gilbane,
and appellee, the nebraska director of insurance in his capac-
ity as liquidator (liquidator), filed cross-motions for summary
judgment. The district court for Lancaster County held a hear-
ing on the motions and granted the liquidator’s motion for sum-
mary judgment, concluding that the liquidator had established
that Amwest was insolvent at the time of the transfer at issue.
The district court denied gilbane’s motion for summary judg-
ment. gilbane appeals. We affirm.
STATEMEnT oF FACTS
We recite the underlying facts, some of which were recited
in Gilbane I. gilbane entered into a subcontract with Crane
Plumbing & Heating Co., inc. (Crane), under which Crane was
to perform plumbing work on a construction project. Crane
obtained two bonds issued by Amwest on or about december
17, 1997, with gilbane as the obligee on both bonds. in
January 2000, Crane abandoned the project. Amwest then
made four payments to gilbane to cover Crane’s contractual
obligations. The first payment was made on January 5, 2001,
in the amount of $357,779.69. The second payment was made
on April 9, in the amount of $26,150.23. The third payment
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	225
Cite as 280 neb. 223

was made on April 13, in the amount of $215,292.12. The final
payment was made on May 21, in the amount of $4,222.04.
Amwest obtained a replacement subcontractor for completion
of the project.
A petition to place Amwest in liquidation was filed on June
6, 2001. Amwest was declared insolvent in an order issued
the following day. The liquidator filed a complaint alleg-
ing that the four payments made by Amwest to gilbane in
2001 were preferential transfers voidable under neb. Rev. Stat.
§ 44-4828(1)(b)(ii) (Reissue 2004). The parties filed cross-
motions for summary judgment. The district court granted
the liquidator’s motion for summary judgment, determining
that the three payments made in April and May were made
within 4 months before the filing of the petition for liquida-
tion and were therefore voidable as preferences pursuant to
§ 44-4828(1)(b)(ii). The court further determined that there
was no genuine issue of material fact as to the insolvency of
Amwest at the time of the January 2001 transfer and, there-
fore, that that payment was a voidable preference pursuant to
§ 44-4828(1)(b)(i). gilbane appealed that order.
in Gilbane I, this court determined, inter alia, that the April
and May 2001 transfers were preferential as the district court
had found but that there were genuine issues of material fact
whether Amwest was insolvent at the time of the January
2001 transfer. in Gilbane I, we noted that the liquidator’s
expert opinion was not in affidavit form and could not be
considered evidence at the summary judgment hearing. We
affirmed in part and reversed in part, and remanded the cause
for further proceedings. We also determined in Gilbane I that
§ 44-4828(9), a subsection generally involving setoffs, did not
apply to the case.
Following our mandate, on remand, the district court entered
a judgment on January 22, 2009, awarding to the liquidator the
payment of the three transfers made in April and May 2001,
totaling $245,644.39. on March 2, 2009, the liquidator filed a
motion for summary judgment seeking to recover the January
2001 transfer as a voidable preferential transfer. gilbane filed a
cross-motion for summary judgment on May 12, 2009, asserting
§ 44-4828(9) as a total defense to the liquidator’s recovery of
226 	280 nEBRASkA REPoRTS

the January 2001 transfer. gilbane also filed a motion request-
ing an order from the district court declaring that its order and
judgment of January 22, 2009, was not a final order. The court
held a hearing on the cross-motions for summary judgment on
May 22. on July 29, the district court entered an order granting
the liquidator’s motion and denying gilbane’s motion.
in its July 29, 2009, order, the court concluded that Amwest
had cured the deficiencies in its expert testimony that had
resulted in remand by providing sworn expert testimony. The
district court also determined that the liquidator had estab-
lished Amwest was insolvent on January 5, 2001, and that the
payment at issue was an impermissible preference. The court
determined that gilbane had failed to introduce into evidence
any proper expert testimony refuting the expert testimony prof-
fered by the liquidator and had otherwise failed to rebut the liq-
uidator’s expert testimony. The court concluded that gilbane’s
defense of entitlement to the January 2001 transfer as a setoff
under § 44-4828(9) had already been rejected by this court and
that such rejection was the law of the case, and, in the alterna-
tive, that gilbane had failed to establish that it had “furnish[ed]
any goods or services to or for the benefit of Amwest.” The
district court entered a second order on July 29, 2009, denying
gilbane’s motion in which it sought an order declaring that the
district court’s January 22 judgment and order was not final.
gilbane appeals from both orders.
ASSignMEnTS oF ERRoR
gilbane claims, summarized and restated, that the district
court erred in (1) granting the liquidator’s motion for summary
judgment and denying gilbane’s own motion for summary
judgment; (2) rejecting gilbane’s defense under § 44-4828(9);
and (3) denying gilbane’s motion for an order declaring that
the judgment of January 22, 2009, was not a final ruling under
neb. Rev. Stat. § 25-1902 (Reissue 2008).
STAndARdS oF REViEW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	227
Cite as 280 neb. 223

inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. See
In re Estate of Fries, 279 neb. 887, 782 n.W.2d 596 (2010).
in reviewing a summary judgment, the court views the evi-
dence in the light most favorable to the party against whom
the judgment was granted, and the court gives that party the
benefit of all reasonable inferences deducible from the evi-
dence. See id.
[3] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court. City of Falls City v. Nebraska
Mun. Power Pool, 279 neb. 238, 777 n.W.2d 327 (2010).
AnALYSiS
The District Court Did Not Err When It Granted
Summary Judgment in Favor of the Liquidator.
in its first assignment of error, gilbane claims that the district
court erred in granting summary judgment in favor of the liq-
uidator. gilbane specifically claims that the methodology used
by the liquidator’s expert when he determined that Amwest was
insolvent on January 5, 2001, was deficient. gilbane further
argues that because gilbane presented sufficient evidence to
rebut the liquidator’s expert testimony, entry of summary judg-
ment was improper. We reject gilbane’s assignment of error
and conclude that the district court did not err when it granted
summary judgment in favor of the liquidator.
[4,5] A prima facie case for summary judgment is shown
by producing enough evidence to demonstrate that the mov-
ant is entitled to a judgment in its favor if the evidence were
uncontroverted at trial. Corona de Camargo v. Schon, 278 neb.
1045, 776 n.W.2d 1 (2009). After the movant for summary
judgment makes a prima facie case by producing enough evi-
dence to demonstrate that the movant is entitled to judgment if
the evidence was uncontroverted at trial, the burden to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party oppos-
ing the motion. Id.
228 	280 nEBRASkA REPoRTS

in Gilbane I, we noted that unlike the three voided pay-
ments, the January 2001 transfer occurred outside the 4-month
period before Amwest filed its petition, and that the liquidator
was therefore required under § 44-4828(1)(b)(i) to prove that
Amwest was insolvent at the time of the January 2001 transfer
in order to void this transfer.
[6] We explained in Gilbane I that an insurer is considered
“insolvent” under the niSRLA if it is
“unable to pay its obligations when they are due or when
its admitted assets do not exceed its liabilities plus the
greater of: (i) Any capital and surplus required by law to
be maintained; or (ii) The total par or stated value of its
authorized and issued capital stock.”
276 neb. at 696-97, 757 n.W.2d at 203. Accord neb. Rev.
Stat. § 44-4803(14)(b) (Reissue 2004). We also noted that “[i]n
preference cases arising under federal bankruptcy law, courts
have held that the testimony of an accountant or other financial
expert is generally necessary to prove insolvency at the time of
a challenged transfer.” Gilbane I, 276 neb. at 697, 757 n.W.2d
at 203.
in Gilbane I, we reviewed the evidence presented by the liq-
uidator in support of its motion for summary judgment, which
evidence included testimony from Michael James Fitzgibbons,
an accountant who served as special deputy receiver for
Amwest. Fitzgibbons testified that expert Joseph J. deVito was
retained to review certain financial records which Fitzgibbons
and others under his supervision had prepared to show the
financial condition of Amwest as of June 30, 2000, and to
determine whether Amwest was insolvent as of that date. The
record in Gilbane I included two reports purportedly authored
by deVito; one was dated February 28, 2006, and the second
was dated June 28, 2006. Both reports were attached to the
affidavit of an attorney representing the liquidator which indi-
cated only that the reports were true and correct copies. The
reports set forth deVito’s opinion regarding the insolvency
of Amwest as of June 30, 2000, and the period subsequent to
that date.
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	229
Cite as 280 neb. 223

[7] After reviewing the record in Gilbane I, we agreed with
gilbane that the properly considered evidence was insufficient
to establish Amwest’s insolvency on January 5, 2001. Unlike
the three other payments which were properly voided based
on their being statutorily prohibited preferences, the January
2001 transfer was not impugned by sufficient evidence, and
summary judgment as to this transfer was error. in making
this determination, we noted that the “‘evidence that may be
received on a motion for summary judgment includes . . . affi-
davits.’” Gilbane I, 276 neb. at 698, 757 n.W.2d at 204, quot-
ing neb. Rev. Stat. § 25-1332 (Reissue 2008).
Such affidavits, however, “shall be made on personal
knowledge, shall set forth such facts as would be admis-
sible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or
served therewith.”
Gilbane I, 276 neb. at 698, 757 n.W.2d at 204. Because
deVito’s reports were not part of an affidavit by deVito and
because the affidavit of counsel identifying the attached “‘true
and correct’” copies of deVito’s reports did not convert such
reports into affidavits, we concluded that the reports themselves
were not sworn and did not meet the statutory definition of an
affidavit. Id. Accordingly, as unsworn summaries of facts or
arguments, the deVito reports were inadmissible as evidence.
Because the admissible evidence in Gilbane I was insufficient
to meet the liquidator’s burden of establishing that Amwest was
insolvent on January 5, we reversed the decision with respect
to the transfer by Amwest in January 2001 and remanded the
cause for further proceedings.
on remand, the liquidator again filed a motion for summary
judgment. in support of the motion for summary judgment,
the liquidator entered into evidence, inter alia, the affidavit
of Fitzgibbons dated September 13, 2004, the affidavit of
Fitzgibbons dated September 7, 2005, and the affidavit of
deVito dated February 27, 2009. Attached to deVito’s affi-
davit were the two reports of examinations conducted by
deVito which were discussed in Gilbane I. The district court
230 	280 nEBRASkA REPoRTS

also admitted into evidence the transcripts of two depositions
of deVito. no claim is made on appeal that deVito is not
an expert.
in opposition to the liquidator’s motion, gilbane entered
into evidence, inter alia, Amwest’s annual statement for the
year ending december 31, 2000, and the affidavit of an attor-
ney for gilbane dated February 23, 2007, attached to which
was a “Statement of Actuarial opinion Regarding Loss and
Loss Adjustment Expense Reserves as of december 31, 2000”
authored by someone associated with “the firm of kPMg
LLC” (kPMg).
Based on the entirety of the record made on remand, the
district court determined that Amwest was insolvent on January
5, 2001, and that the transfer to gilbane on that date should
be voided. on appeal, gilbane contends that the liquidator has
again failed to prove Amwest’s insolvency at the time of the
January 2001 transfer because although deVito provided his
expert testimony in a sworn affidavit, the methodology used
by deVito was improper, and therefore, his testimony does
not establish Amwest’s insolvency on January 5. gilbane also
argues that even if the liquidator’s evidence tended to establish
Amwest’s insolvency as of the January 2001 transfer, in its evi-
dence in opposition to the liquidator’s motion, gilbane raised
genuine issues of material fact precluding entry of summary
judgment. in particular, gilbane asserts that its evidence puts
the date of Amwest’s insolvency in doubt.
After reviewing the record, we agree with the district court
that the liquidator cured the deficiencies in its evidence which
had occurred in Gilbane I and that the methodology used by
deVito was proper. Further, the liquidator met its burden of
establishing that Amwest was insolvent on the date of the
January 2001 transfer and gilbane did not provide meaningful
evidence to rebut this determination. Thus, it was not error to
grant the liquidator’s motion for summary judgment, thereby
voiding the January 2001 transfer.
on appeal, we understand gilbane’s objections to the meth-
odology used by deVito to be twofold. First, gilbane argues
that deVito’s determination that Amwest was insolvent is in
error because deVito did not calculate Amwest’s loss reserves
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	231
Cite as 280 neb. 223

in accordance with neb. Rev. Stat. § 44-401.01 (Reissue 2004).
in this regard, gilbane contends that because deVito did not
determine the loss reserves by looking at the present value
of estimated future payments as of January 2001, but instead
looked at the actual development of claims through december
31, 2004, his determination of insolvency was in error. Second,
gilbane contends that deVito’s use of “retrojection,” a method
used to prove insolvency indirectly, was flawed because the
dates he used to establish insolvency on January 5, 2001, were
unacceptably distant from the January 5 date of the transfer at
issue. We explain retrojection further below.
We are not persuaded by either of gilbane’s arguments. With
regard to the first argument, the record shows that deVito’s
determination of insolvency complied with the statutory defini-
tion of insolvency under the niSRLA. As noted above, under
the niSRLA, an insurer is considered insolvent if it is
unable to pay its obligations when they are due or when
its admitted assets do not exceed its liabilities plus the
greater of:
(i) Any capital and surplus required by law to be main-
tained; or
(ii) The total par or stated value of its authorized and
issued capital stock . . . .
§ 44-4803(14)(b).
deVito testified that he used the nebraska statutory defini-
tion of insolvency in making his determination that Amwest
was insolvent. He explained that to determine whether Amwest
was insolvent, he reviewed Amwest’s statutory quarterly state-
ment as of June 30, 2000; Amwest’s restated financial state-
ments as of June 30, 2000, as prepared by the liquidator; and
documents supporting the adjusting entries made by the liqui-
dator, including general ledger accounts, accounting schedules,
journal entries, and accounting analyses through december 31,
2004. Upon reviewing these materials, deVito concluded that
Amwest was insolvent as of June 30, 2000. deVito further
concluded that Amwest remained insolvent on January 5, 2001,
the date of the transfer at issue, and remained continuously
insolvent through the date of deVito’s supplemental report
dated June 28, 2006.
232 	280 nEBRASkA REPoRTS

The district court accurately described deVito’s method-
ology in its order. in arriving at his determinations, deVito
examined the actual loss experience data as the information
developed through december 31, 2004; he then compared this
information to the estimated loss reserves set aside by Amwest
as of June 30, 2000. Based on this information, deVito deter-
mined that Amwest had substantially underreserved claims and
was insolvent as of June 30, 2000. To determine that Amwest
was insolvent at the time of the January 2001 transfer, deVito
used a retrojection analysis, which we review in more detail
below. Based on Amwest’s records from the year 2000 through
december 31, 2004, deVito determined that Amwest was actu-
ally insolvent as of June 30, 2000, and remained insolvent until
the time of his report in 2006. given the facts relied upon, this
determination is in accordance with the definition of insol-
vency in the niSRLA. We do not find merit in gilbane’s argu-
ment that deVito’s methodology was flawed or inconsistent
with § 44-401.01.
[8] gilbane also objects to deVito’s retrojection analysis
and his determination that Amwest was insolvent on January 5,
2001. Retrojection is a method used to prove insolvency indi-
rectly. As noted in In re Stanley, 384 B.R. 788, 807 (S.d. ohio
2008), “‘[i]nsolvency is not always susceptible to direct proof
and frequently must be determined by proof of other facts or
factors from which the ultimate fact of insolvency on the trans-
fer dates must be inferred or presumed.’” in In re Stanley, the
bankruptcy court defined retrojection as the
inverse of projection. A retrojection analysis begins with
a debtor’s financial condition at a certain point in time
(typically the petition date) and extrapolates back in time
in an attempt to show that the debtor must have been
insolvent at some earlier relevant time (e.g., the date of an
alleged fraudulent transfer).
384 B.R. at 807.
[9,10] Retrojection is a widely used method for determining
insolvency, and as gilbane observes in its brief, courts have
concluded that if the retrojection period stretches too far back
from the date on which the insolvency of the debtor is known,
it is untenable. See, e.g., In re Stanley, supra; In re Laines, 352
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	233
Cite as 280 neb. 223

B.R. 397 (E.d. Va. 2005); In re Washington Bancorporation,
180 B.R. 330 (d.C. 1995); In re War Eagle Floats, Inc., 104
B.R. 398 (E.d. okla. 1989). The cases make clear that “courts
will only consider retrojection if the evidence of insolvency on
the certain date is accompanied by evidence that the debtors
[sic] financial condition did not change during the pendency
period between the time of the payment and the date of proven
insolvency.” In re Washington Bancorporation, 180 B.R. at
334. it has been observed that “[w]here a debtor is shown to be
insolvent at a date subsequent to a particular transfer and the
debtor’s condition did not change during the interim period, it
is logical and permissible to presume that the debtor was insol-
vent at the time of the transfer.” In re Damason Const. Corp.,
101 B.R. 775, 778 (M.d. Fla. 1989). We agree with the fore-
going authorities and conclude that retrojection is a permissible
method by which to prove insolvency when accompanied by
evidence that no substantial change occurred in the insolvent
entity’s condition during the look-back period.
We understand gilbane’s argument to be that deVito’s retro-
jection analysis is deficient because he uses a period so lengthy
as to be inherently unreliable. We find no merit to this argu-
ment. in his deposition testimony in evidence, deVito explained
that in his retrojection analysis, he found two dates, June 2000
and June 2001, on which he determined Amwest was insol-
vent and then considered Amwest’s condition on January 5,
2001. We note that deVito used the date the court determined
Amwest to be insolvent, which he believed was June 7, 2001.
However, the parties concede that the court actually determined
insolvency as of March 2001. deVito further stated that based
on the financial records he reviewed, Amwest was insolvent as
of June 2000, and that he thus used June 2000 as the earliest
insolvency date. deVito stated in his affidavit that the financial
records reflected there was no substantial change in Amwest’s
financial condition over the period from June 2000 to June
2001, which he reviewed, and that therefore, he determined
the company was insolvent for the entire period between June
2000 and June 2001, which period included January 5, 2001,
the date of the transfer at issue.
234 	280 nEBRASkA REPoRTS

We note that the date the court determined Amwest was
insolvent was March 2001 and that the date of the transfer
was only 3 months earlier. This is an acceptable retrojection
period. See, e.g., Misty Management Corp. v. Lockwood, 539
F.2d 1205 (9th Cir. 1976) (5-month retrojection period accept-
able). given the evidence that there was no substantial change
in Amwest’s condition during the retrojection period, deVito’s
retrojection analysis is not flawed and his opinion that Amwest
was insolvent on January 5, 2001, is supported by the record.
We reject gilbane’s argument that deVito’s methodology
was flawed.
on remand, the liquidator adequately cured the defects in its
evidence by producing an expert witness whose opinion estab-
lished that Amwest was insolvent at the time of the January
2001 transfer. The burden then shifted to gilbane to rebut the
evidence presented by the liquidator.
gilbane argues it successfully carried its burden and directs
us to the “Statement of Actuarial opinion Regarding Loss and
Loss Adjustment Expense Reserves as of december 31, 2000”
prepared by someone associated with kPMg at or near the end
of december 2000 which gilbane presented as its evidence.
gilbane entered this document into evidence by attaching it to
gilbane’s opposition to Amwest’s motion for summary judg-
ment. The report was accompanied by the affidavit of gilbane’s
attorney dated February 23, 2007. The kPMg report was not
accompanied by an affidavit of the author of the report. in
Gilbane I, we specifically rejected this methodology for enter-
ing evidence at the summary judgment stage. Therefore, we
cannot consider the kPMg report when reviewing whether
gilbane successfully rebutted deVito’s testimony so as to cre-
ate a genuine issue of material fact for trial. gilbane did not
enter into evidence any other expert testimony challenging
deVito’s conclusions or creating genuine issues of material fact
as to Amwest’s insolvency. Accordingly, the district court did
not err in determining that Amwest was insolvent on January 5,
2001, thus voiding the transfer on this date. The district court
did not err when it granted the liquidator’s motion for summary
judgment, and we affirm its decision.
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	235
Cite as 280 neb. 223

The District Court Did Not Err When It Rejected
Gilbane’s § 44-4828(9) Setoff Defense.
gilbane next claims that under the provisions of § 44-4828(9),
it was entitled to a setoff because it allegedly advanced credit
to Amwest, and that the district court erred when it rejected
gilbane’s claim. gilbane contends that given this purported
credit, the January 2001 transfer was not a voidable preferential
transfer. As gilbane sees it, after the January 2001 transfer, it
continued to provide goods and services to and for the benefit
of Amwest, for which Amwest made payments on April 9 and
13 and May 21. The liquidator counters that gilbane’s argu-
ment is without merit because this court already addressed and
rejected this claim in Gilbane I. Alternatively, the liquidator
contends that there is no support in the record to substantiate
gilbane’s argument.
The district court concluded that this argument was with-
out merit and denied gilbane’s motion for summary judg-
ment based on this argument. The district court concluded
that the April 9 and 13 and May 21, 2001, payments, which
this court affirmed were voidable preferential transfers in
Gilbane I, were made to gilbane based on an antecedent debt,
not for goods and services provided by gilbane to Amwest,
and that therefore, they did not meet the definition of a setoff
in § 44-4828(9).
Section 44-4828(9) provides:
if a creditor has been preferred and afterward in good
faith gives the insurer further credit without security
of any kind for property which becomes a part of the
insurer’s estate, the amount of the new credit remaining
unpaid at the time of the petition may be set off against
the preference which would otherwise be recoverable
from him or her.
in Gilbane I, we addressed gilbane’s claim that the district
court erred in not applying § 44-4828(9). We concluded that
gilbane did not advance credit to Amwest, and there was no
claim of setoff. Accordingly, we concluded that § 44-4828(9)
did not apply. indeed, as the liquidator points out in its brief,
we observed in Gilbane I that what gilbane is now claiming
was a “‘credit’” in favor of Amwest was instead payment for
236 	280 nEBRASkA REPoRTS

gilbane’s benefit because the payment permitted completion
of the project underlying this case. See brief for appellee at
29. We noted in Gilbane I that gilbane’s use of “the funds
it received from Amwest to pay a replacement subcontractor
demonstrates that the transfers were both to and for the benefit
of gilbane, in that they permitted the completion of Crane’s
original contractual obligation to gilbane.” 276 neb. at 693-94,
757 n.W.2d at 201.
our decision that gilbane did not advance Amwest credit
is the law of the case with respect to the alleged setoff. The
money paid by Amwest and later deemed to be preferential
payments does not alter this decision. See Pennfield Oil Co. v.
Winstrom, 276 neb. 123, 752 n.W.2d 588 (2008). Therefore,
we affirm the ruling of the district court in which it rejected
gilbane’s setoff claim.
The District Court Did Not Err When It Rejected
Gilbane’s Request to Deem the January 22, 2009,
Judgment and Order a Nonfinal Order.
Finally, gilbane claims that the district court erred when it
denied gilbane’s motion to declare the district court’s January
22, 2009, judgment and order a nonfinal order. We find no
merit to this assignment of error.
on January 22, 2009, the district court entered a judgment
and order in accordance with this court’s december 23, 2008,
mandate issued pursuant to Gilbane I. The district court’s order
simply directed payment of the three voidable preferential
transfers in accordance with this court’s mandate.
[11] After receiving a mandate, a trial court is without
power to affect rights and duties outside the scope of the
remand from an appellate court. Pennfield Oil Co., supra.
Upon remand of the cause in Gilbane I, the district court
was authorized to take action on only the remaining issue
regarding the January 2001 transfer. The January 22, 2009,
order was final because no further action could be taken with
respect to the issues surrounding the status of those three
payments. Therefore, we affirm the district court’s decision
that its January 22 order was final and its denial of gilbane’s
request to the contrary.
STATE Ex REL. WAgnER v. giLBAnE BLdg. Co. 	237
Cite as 280 neb. 223

ConCLUSion
on remand, the liquidator cured the defects in its evidence
identified in Gilbane I and established by its expert admissible
evidence in support of its motion for summary judgment that
Amwest was insolvent as of the date of the January 2001 trans-
fer. gilbane failed to rebut this showing; therefore, the district
court’s determination that Amwest was insolvent on January 5,
2001, was supported by the record and the grant of summary
judgment in favor of the liquidator was not error. The district
court did not err in denying gilbane’s motion for summary
judgment based on gilbane’s defense pursuant to § 44-4828(9),
because that issue was previously considered and rejected by
this court and that decision is the law of the case. Finally, the
district court did not err when it denied gilbane’s request to
deem its January 22, 2009, order a nonfinal order. Finding no
merit to gilbane’s assignments of error, we affirm.
affiRmed.
WRight, J., not participating.
state of nebRaska , appellee , v.
lauRa lebeau, appellant.
784 n.W.2d 921
Filed July 16, 2010. 	no. S-09-890.
1. Statutes. The meaning of a statute is a question of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appel-
late court resolves the question independently of the conclusion reached by the
trial court.
3. Speedy Trial: Indictments and Informations: Pleadings. Although nebraska’s
speedy trial act, neb. Rev. Stat. § 29-1201 et seq. (Reissue 2008), expressly refers
to indictments and informations, the act also applies to prosecutions on complaint
in the county court.
4. Speedy Trial. To calculate the time for speedy trial purposes, a court must
exclude the day the complaint was filed, count forward 6 months, back up 1 day,
and then add any time excluded under neb. Rev. Stat. § 29-1207(4) (Reissue
2008) to determine the last day the defendant can be tried.
5. ____. Under neb. Rev. Stat. § 29-1208 (Reissue 2008), if a defendant is
not brought to trial before the running of the time for trial, as extended by
excludable periods, he or she shall be entitled to absolute discharge from the
offense charged.
238 	280 nEBRASkA REPoRTS