Fitzgerald v. Community Redevelopment Corp.

clause excludes ignition interlock permitholders from the cov-
erage of § 60-6,197.06.
CONCLUSION
We agree with the district court’s interpretation of the stat-
ute. Section 60-6,197.06 does not provide the penalty for a
driver who has a valid ignition interlock permit but operates
a vehicle not equipped with such a device. That conduct is a
Class II misdemeanor under § 60-6,211.05(5). We overrule the
State’s exception.
E xcEption ovErrulEd.
GErrard, J., not participating in the decision.
WriGht, J., not participating.
William a. F itzGErald Et al ., on bEhalF oF KEllom
hEiGhts associatEs limitEd partnErship, a nEbrasKa
limitEd partnErship, and cuminG strEEt corporation,
a nEbrasKa corporation, appEllEEs and cross -appEllants ,
v. community rEdEvElopmEnt corporation, a nEbrasKa
corporation, and omaha E conomic dEvElopmEnt
corporation, a nEbrasKa nonproFit corporation,
appEllants and cross -appEllEEs.
811 N.W.2d 178
Filed March 9, 2012. 	No. S-10-624.
1. Limitations of Actions. Which statute of limitations applies is a question
of law.
2. Judgments: Appeal and Error. An appellate court reaches a conclusion regard-
ing questions of law independently of the trial court’s conclusion.
3. Limitations of Actions: Appeal and Error. The point at which a statute of
limitations begins to run must be determined from the facts of each case, and the
decision of the district court on the issue of the statute of limitations normally
will not be set aside by an appellate court unless clearly wrong.
4. Contracts: Appeal and Error. The interpretation of a contract is a question 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.
5. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding
or denying attorney fees will be upheld absent an abuse of discretion.
6. Statutes. Statutory interpretation presents a question of law.
7. Prejudgment Interest: Appeal and Error. Whether prejudgment interest should
be awarded is reviewed de novo on appeal.
428 	283 NebrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

8. Limitations of Actions: Fraud. An action for fraud does not accrue until there
has been a discovery of the facts constituting the fraud, or facts sufficient to put
a person of ordinary intelligence and prudence on an inquiry which, if pursued,
would lead to such discovery.
9. Estoppel. The doctrine of equitable estoppel is frequently applied to transac-
tions in which it is found that it would be unconscionable to permit a person to
maintain a position inconsistent with one in which he or she has acquiesced or of
which he or she has accepted any benefit.
10. Appeal and Error. An issue not passed on by the trial court is not appropriate for
consideration on appeal.
11. Judgments: Final Orders: Words and Phrases. A “judgment” is a court’s final
consideration and determination of the respective rights and obligations of the
parties to an action as those rights and obligations presently exist.
12. Judgments: Final Orders. Orders purporting to be final judgments, but that
are dependent upon the occurrence of uncertain future events, do not operate
as “judgments” and are wholly ineffective and void as such. These “conditional
judgments” are not final determinations of the rights and obligations of the par-
ties as they presently exist, but, rather, look to the future in an attempt to judge
the unknown.
13. ____: ____. A conditional judgment is wholly void because it does not “per-
form in praesenti” and leaves to speculation and conjecture what its final effect
may be.
14. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
15. Judgments: Attorney Fees: Derivative Actions: Partnerships. Under Neb. rev.
Stat. § 67-291 (reissue 2009), the court may award expenses, including attorney
fees, as a separate component of the judgment. The statute then requires that in a
derivative action, the plaintiff may retain the portion of the judgment awarded as
expenses, but any additional proceeds of the judgment that the plaintiff receives
must be remitted to the partnership.
16. Prejudgment Interest: Claims. prejudgment interest under Neb. rev. Stat.
§ 45-103.02 (reissue 2010) 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.
Appeal from the District Court for Douglas County: pEtEr
c. bataillon, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Donald J. buresh, of Stalnaker, becker & buresh, p.C., for
appellant Community redevelopment Corporation.
Lyman L. Larsen, Sean W. Colligan, and Geoffrey L. Gross,
of Stinson, Morrison & Hecker, L.L.p., for appellant Omaha
economic Development Corporation.
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	429
Cite as 283 Neb. 428

Andrew T. Schlosser, of Fitzgerald, Schorr, barmettler &
brennan, p.C., L.L.O., and Matthew F. Heffron, of brown &
brown, p.C., L.L.O., for appellees.
hEavican, c.J., connolly, GErrard, stEphan, mccormacK,
and millEr-lErman, JJ.
millEr-lErman, J.
NATUre OF CASe
The dispute in this case revolves around kellom Heights
Associates Limited partnership (kellom Heights), a limited
partnership formed to provide financing for the redevelopment
of property in Omaha, Nebraska. The appellees are kellom
Heights, Cuming Street Corporation (Cuming Street), and
“Class A” limited partners in kellom Heights. The appellants
are Community redevelopment Corporation (CrC), the gen-
eral partner, and Omaha economic Development Corporation
(OeDC), a “Class b” limited partner. CrC is a subsidiary of
OeDC. The appellees became dissatisfied with the operation
of kellom Heights and filed this complaint asserting various
causes of action. The district court for Douglas County found
for the appellees on certain causes of action and entered a judg-
ment in their favor in the amount of $918,228 plus costs and
interest. In addition to the judgment, the court awarded attor-
ney fees of $336,614. The court denied the appellees’ request
for prejudgment interest.
OeDC and CrC, the appellants, appeal various orders of the
district court and make various assignments of error, includ-
ing that the district court erred when it rejected their statute
of limitations defenses to certain claims. The appellees cross-
appeal and claim that the district court erred when it denied
their request for prejudgment interest. We affirm in part, and in
part reverse and remand for further proceedings.
STATeMeNT OF FACTS
kellom Heights was formed in 1981 for the purposes of
providing financing for and carrying out a redevelopment
plan north of Cuming Street between 25th and 27th Streets in
Omaha, near the Creighton University campus. OeDC was in
charge of the redevelopment, which included construction of
430 	283 NebrASkA repOrTS

a 132-unit apartment complex with 20 percent of the apart-
ment units set aside for U.S. Department of Housing and
Urban Development Section 8 subsidized housing. Government
financing and grants were obtained to cover much of the cost
of the project, but additional funds of approximately $600,000
were needed. OeDC considered forming a limited partner-
ship that would provide investors income tax savings based on
expected losses that would be allocated to the limited partners
for approximately the first 15 years of the project.
OeDC and CrC executed a partnership agreement for
kellom Heights on June 4, 1981. CrC was designated the
general partner, and OeDC was designated a Class b lim-
ited partner with no voting rights. OeDC and CrC executed
amendments to the agreement on May 1, 1982, and September
29, 2003. The validity of the May 1, 1982, amendment is
among the issues in this case. A private placement memo-
randum (ppM) was provided to potential investors in 1981
and 1982. In the ppM, 60 Class A limited partnership inter-
ests were offered. each investor was offered a minimum and
maximum of two partnership interest units for an investment of
$20,200. The partnership agreement provided that the Class A
limited partners would have a 99-percent interest in the net
income or losses and a one-third interest in the net cashflow
of kellom Heights. Thirty individuals, including the appellees
in this case, subscribed to become Class A limited partners. A
certificate of limited partnership was filed with the Nebraska
Secretary of State on May 6, 1982, and with the Douglas
County clerk in June 1982.
After approximately 20 years with no cashflow from kellom
Heights, some limited partners became dissatisfied with its oper-
ation. The appellees in this case include William A. Fitzgerald,
Jerome F. Sherman, Norman veitzer, and Loyal borman, who
are Class A limited partners who filed this action as a derivative
action on behalf of kellom Heights and on behalf of Cuming
Street, a corporation they sought to have admitted as a gen-
eral partner. The appellees filed the original complaint in this
action on January 20, 2006. In the operative second amended
complaint, the appellees set forth six causes of action, includ-
ing actions for the following: (1) an accounting, (2) injunctive
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	431
Cite as 283 Neb. 428

and declaratory relief to appoint Cuming Street as an additional
general partner, (3) injunctive and declaratory relief and a tem-
porary restraining order to set aside a $350,000 note payable
to OeDC and to halt a $12,000 increase in annual supervisory
fees paid to CrC, (4) unjust enrichment to recover interest
paid to OeDC on the $350,000 note, (5) injunctive relief and
a temporary restraining order to prevent OeDC and CrC from
paying their own attorney fees from kellom Heights funds,
and (6) injunctive and declaratory relief to declare that the
May 1, 1982, amendment to the partnership agreement (here-
inafter Amendment 1) is unenforceable and to prohibit OeDC
and CrC from carrying out the provisions of Amendment 1.
In their answer, OeDC and CrC raised affirmative defenses,
including assertions that the appellees’ claims were barred by
the statute of limitations and the doctrine of laches and that
certain claims were not claims of kellom Heights and therefore
were not properly asserted in a derivative action.
Following a bench trial, the district court entered orders on
August 10, 2009, and February 12 and March 11, 2010, deter-
mining various issues in this action. OeDC and CrC appealed
these orders to the Nebraska Court of Appeals. The Court of
Appeals dismissed the appeal in a decision without opinion
on May 25, 2010, case No. A-10-247, after it concluded that
the district court had explicitly reserved certain matters for
determination and therefore had not disposed of all claims. On
remand, the district court entered an order on June 17, in which
it determined additional matters and stated that all issues in the
action had been resolved and that any outstanding motions or
issues that may not have been resolved were overruled. A sum-
mary of each claim, the court’s resolution of each claim, and
the court’s resolution of other matters follow.
Statutes of Limitations and Other
Affirmative Defenses.
In 	their 	answer, 	OeDC 	and 	CrC 	asserted 	affirmative
defenses, including an assertion that the action was barred by
the statute of limitations. In the August 10, 2009, order, the dis-
trict court noted that for a 4-year statute of limitations to apply,
the appellees must have known or should have known they had
432 	283 NebrASkA repOrTS

a cause of action. With regard to the increased supervisory fees,
the court noted that the increase occurred within 4 years prior
to the filing of this action. With regard to the appointment of
Cuming Street as a general partner, the court noted that it was
an ongoing process and that therefore, the statute of limitations
did not apply. With regard to the remaining claims, includ-
ing those involving Amendment 1 and interest charged on the
$350,000 note, the court found that the appellees were never
given adequate notice of the facts giving rise to the existence of
the claims and that the appellees filed their action within the 4-
year statute of limitations after they learned of the claims. The
court found against OeDC and CrC with respect to the statute
of limitations defense and also found against OeDC and CrC
with respect to their other affirmative defenses.
Accounting.
The appellees asserted that as general partner, CrC had
control over the books and records of kellom Heights and that
for the duration of kellom Heights, CrC had not provided
a full and complete accounting of kellom Heights’ assets,
income, and expenditures, particularly expenditures the appel-
lees believed to be irregular and improper. The appellees sought
an order requiring CrC to account to them “for all assets,
income and expenditures” of kellom Heights, “particularly
for all profits and monies received, disbursed and retained by”
kellom Heights since its formation and to make available to
the appellees “all books and records” of kellom Heights since
its formation. The appellees also sought, after the accounting
was completed, a judgment against OeDC and CrC “for the
balance found due” to the appellees.
In the August 10, 2009, order, the district court granted the
appellees’ request for an accounting and required OeDC and
CrC “to make available to the plaintiffs all books and records
of [kellom Heights] since [its] formation.” The court stated
that once the accounting was completed, the court would make
a decision as to fees and costs. The court also found that from
1986 through 2001, kellom Heights had earned interest on
funds that it held in various bank accounts but that OeDC had
taken for itself the interest earned on the accounts. beginning
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	433
Cite as 283 Neb. 428

in 1986, financial statements for kellom Heights referred to the
interest earned on the bank accounts as “incentive income” pay-
able to OeDC. The court concluded that the partnership agree-
ment did not grant OeDC authority to take the interest. The
court concluded that the interest taken from kellom Heights
from 1986 through 2001, which totaled $88,228, should be
returned to kellom Heights with additional interest.
Appointment of Cuming Street
as General Partner.
The appellees asserted that under the partnership agreement,
the Class A limited partners had a right to approve an entity to
become an additional general partner. They asserted that the
Class A limited partners had approved by a majority vote the
admission of Cuming Street as a general partner but that CrC
had unreasonably refused to perform the actions necessary
under the agreement to allow the admission of Cuming Street
as a general partner. The appellees sought a declaration that
admission of Cuming Street as a general partner was in con-
formity with the law and with the partnership agreement. They
also sought to enjoin CrC from refusing to complete additional
steps required by the agreement and by law to admit Cuming
Street as a general partner and to enjoin CrC from interfering
with Cuming Street’s exercise of its full rights and power as a
general partner.
In the August 10, 2009, order, the district court addressed
OeDC and CrC’s argument that the appellees had not yet com-
plied with all the requirements to make Cuming Street a gen-
eral partner. The court found that one of the requirements was
an opinion from kellom Heights’ legal counsel that admission
of the general partner was in conformity with the applicable
statutes and would not cause the termination or dissolution of
kellom Heights or affect its federal tax status. The court noted
that on October 17, 2006, counsel had opined that there was
authority for Cuming Street to become a general partner and
that admission of Cuming Street as a general partner would not
cause termination or dissolution of kellom Heights or affect
its tax status. The court noted, however, that counsel opined
that there had not yet been compliance with the partnership
434 	283 NebrASkA repOrTS

agreement’s requirements that (1) Cuming Street accept the
partnership agreement and (2) admission of Cuming Street as a
general partner be approved by the Department of Housing and
Urban Development. The court concluded that once these two
requirements were met, Cuming Street would become a general
partner. The court therefore denied, “at this time,” the appel-
lees’ claims for declaratory and injunctive relief which would
have appointed Cuming Street as a general partner.
Increase in Annual Supervisory Fee.
The appellees asserted that pursuant to the ppM, kellom
Heights was authorized to pay CrC $24,000 annually as a
supervisory fee but that, without notice to the Class A limited
partners, CrC began paying itself an additional $12,000 per
year from kellom Heights funds. The appellees sought an
order declaring that the $12,000 increase in the supervisory
fee was invalid and unenforceable and an order enjoining
CrC from paying itself more than $24,000 in supervisory
fees annually.
In the August 10, 2009, order, the district court found that
pursuant to the ppM, CrC was allowed a fee of $12,000 per
year for supervisory duties it performed as general partner and
an additional fee of $12,000 per year after it took over the
duties of manager of kellom Heights. The court noted that in
2001, CrC began receiving an additional $12,000 per year for
a total annual fee of $36,000 for management and supervision.
The court rejected CrC’s argument to the effect that although
the ppM may have limited kellom Heights’ manager fee to
$12,000 per year, it did not limit the supervisory fee that CrC
received as general partner. The court reasoned that the lan-
guage of the ppM, although not necessarily the language of the
partnership agreement, limited fees to the amounts specified
and concluded that the procedures required by the partnership
agreement to approve an increase in fees were not followed and
that proper notice of the increased fee was not provided to the
partners. Having found a violation of the partnership agreement,
the court concluded that CrC must return to kellom Heights
the sum of $60,000, representing the additional $12,000 fee for
the 5 years it was taken, plus interest.
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	435
Cite as 283 Neb. 428

Note Payable and Interest on Note Payable.
The appellees asserted that in 1982, the city of Omaha gave
OeDC a grant of $350,000 with the requirement that OeDC in
turn grant, rather than loan, the $350,000 to kellom Heights.
The appellees asserted that OeDC mischaracterized the trans-
fer of $350,000 to kellom Heights as a loan with interest pay-
able and that OeDC memorialized such characterization in a
promissory note. They asserted that CrC paid OeDC $35,000
in interest on the note annually despite the fact that the partner-
ship agreement prohibited the payment of interest from kellom
Heights to OeDC. The appellees sought a declaration that the
$350,000 note payable was invalid and unenforceable, and
they sought to enjoin CrC from making further payments on
the note. The appellees further asserted that OeDC had been
unjustly enriched by receiving $35,000 in interest annually on
the $350,000 note, and they sought a judgment in the amount
of the interest paid.
In the August 10, 2009, order, the district court found that
§ 6.9 of the partnership agreement allowed kellom Heights
to borrow funds from any person, including the general part-
ner, but required that any loan from the general partner or an
affiliate must be without interest. The court rejected OeDC
and CrC’s argument that other sections of the partnership
agreement implied that interest could be charged on a loan
from an affiliate; the court concluded that such sections did
not negate the clear requirement of § 6.9 that no interest be
paid. The court also rejected OeDC and CrC’s argument that
the appellees knew or should have known that interest was
being charged on the note, because kellom Heights’ financial
statements for the years 1982 through 1984 disclosed that the
note bore interest. The court concluded that OeDC and CrC
had a fiduciary duty to advise the other partners of any act that
violated the partnership agreement and that OeDC and CrC
failed to disclose to the other partners that interest was being
paid on the note in violation of the partnership agreement.
The court found that the annual interest paid on the note was
$35,000, calculated as 10 percent of $350,000, and that a total
of $770,000 had been paid over 22 years. The court concluded
that the $770,000, with additional interest, should be repaid to
436 	283 NebrASkA repOrTS

kellom Heights. The court, however, rejected the appellees’
claim that the loan itself was improper, after it found nothing
that would have prevented the loan.
Payment of OEDC and CRC’s Attorney Fees
and Costs From Kellom Heights’ Funds.
The appellees asserted that OeDC’s and CrC’s actions in
connection with the other claims asserted in the complaint con-
stituted bad faith or reckless disregard of their duties to kellom
Heights and that, therefore, pursuant to the partnership agree-
ment, OeDC and CrC were not entitled to indemnification or
payment from kellom Heights of their costs and attorney fees
to defend this action. The appellees sought to enjoin OeDC
and CrC from paying attorney fees or other defense costs from
kellom Heights’ funds.
In the August 10, 2009, order, the court ordered that “any
costs or fees or judgments” that were awarded to kellom
Heights and against OeDC and CrC were to be paid from the
appellants’ own funds and not from kellom Heights’ funds.
The court stated that the purpose of the order was so that
kellom Heights would not be damaged by this action and that
“[t]o do otherwise would defeat the purpose and integrity of
this judgment.”
In the February 12, 2010, order, the court rejected the appel-
lants’ argument that Neb. rev. Stat. § 67-291 (reissue 2009)
of the Nebraska Uniform Limited partnership Act required that
attorney fees and expenses were to come out of the judgment
rather than being awarded in addition to the judgment. The
appellants argued that the statute required the appellees to take
their attorney fees and costs out of the judgment awarded on
their claims and remit the remainder of the judgment to kellom
Heights. The court disagreed with the appellants’ interpreta-
tion of § 67-291 and concluded that, consistent with § 67-291,
attorney fees and expenses awarded to the appellees were to be
paid by the appellants in addition to the judgment.
Amendment 1.
The appellees asserted that by executing Amendment 1 to
the partnership agreement in 1982, OeDC and CrC sought
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	437
Cite as 283 Neb. 428

to (1) double the percentage of net cashflow to which CrC
was entitled; (2) give OeDC and CrC a much greater por-
tion of the proceeds from a sale, refinancing, or liquidation;
and (3) allow repayment to OeDC of the $350,000 note. The
appellees asserted that provisions of the partnership agree-
ment regarding amendments were not followed with respect
to Amendment 1, including requirements for notice to and
consent from the limited partners. The appellees sought a
declaration that Amendment 1 was not adopted in compliance
with the partnership agreement and was therefore unenforce-
able. The appellees further sought to enjoin OeDC and CrC
from enforcing or acting in accordance with the provisions of
Amendment 1.
In the August 10, 2009, order, the district court found
that § 12.1 of the partnership agreement required that for an
amendment to be accepted, “‘it shall have been consented
to by a Majority vote of the Class A Limited partners’”
and that there was no vote on Amendment 1 by the Class A
limited partners. The court rejected OeDC and CrC’s argu-
ment that Amendment 1 was adopted before kellom Heights
commenced, which occurred when the certificate of limited
partnership was filed with the county clerk in June 1982. The
court found that letters sent to the limited partners “never fully
informed the partners what the terms [of Amendment 1] were”
and that the text of Amendment 1 stated it was to be adopted
pursuant to § 12.1. The court reasoned that regardless of when
Amendment 1 was adopted, by its own terms, its adoption
required a majority vote of the limited partners. The court
concluded that Amendment 1 was never adopted and that it
was unenforceable.
Attorney Fees and Costs.
With respect to each cause of action, the appellees asked
the district court to award them the costs of the action, includ-
ing attorney fees pursuant to § 67-291 regarding deriva-
tive actions.
In the February 12, 2010, order, the court noted that OeDC
and CrC asserted that certain of the appellees’ causes of
action were direct actions for the benefit of the individual
438 	283 NebrASkA repOrTS

appellees rather than derivative actions for the benefit of
kellom Heights and that the appellants contended an award
of attorney fees for such claims was inappropriate under
§ 67-291. The appellants also asserted that the actions for an
accounting, for the challenge to Amendment 1, and for the
appointment of Cuming Street as a general partner were not
derivative actions but direct claims to benefit the appellees.
The court rejected the appellants’ arguments with respect to
each of the specified claims.
With regard to the accounting, the court noted that under
Nebraska law, partners may bring an action for an accounting
as a derivative action when the purpose is to obtain the return
of money to the partnership. The court concluded that the
action for an accounting in this case was a derivative action,
because the appellees sought an accounting in order to deter-
mine what moneys should be returned to kellom Heights and
that the appellees did not have an injury separate and distinct
from the injury to kellom Heights as a whole.
With regard to Amendment 1, the court concluded that the
action was a derivative action because the purpose was to
enjoin the appellants from acting in contravention of the part-
nership agreement by adopting the amendment in a manner not
in compliance with the agreement.
With regard to the action to appoint Cuming Street as a
general partner, the court concluded that the appellees sought
to enforce the requirements of the partnership agreement with
respect to admitting a general partner and that therefore, the
action was a derivative action. The court further noted that
classification of the Cuming Street claim might have been
unnecessary because it had denied relief on the claim.
The district court rejected OeDC and CrC’s argument
that attorney fees were inappropriate because they were rely-
ing on the advice of counsel when they took the actions at
issue in the appellees’ claims. OeDC and CrC cited a case
from Missouri for the proposition that in a derivative action,
a party relying on the advice of counsel cannot be held liable
for attorney fees. The court found that the Missouri case was
not applicable because it involved a provision of the spe-
cific partnership agreement in that case, and the court found
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	439
Cite as 283 Neb. 428

no law from Nebraska or federal law to support the appel-
lants’ proposition.
The court concluded that the reasonable amount of attor-
ney fees to be awarded the appellees was $336,614. Such
amount reflected the time spent multiplied by a reasonable
hourly rate.
Prejudgment Interest.
The appellees asserted that they were entitled to prejudg-
ment interest under Neb. rev. Stat. §§ 45-103.02(2) and 45-104
(reissue 2010). In the February 12, 2010, order, the district
court concluded that prejudgment interest was not recover-
able under § 45-104. The court further noted that in order to
recover prejudgment interest under § 45-103.02, it must be
shown that there is no dispute as to (1) the amount due and
(2) the plaintiff’s right to recover. The court noted that in this
case, a trial was required to determine both liability and dam-
ages. The court concluded that because neither requirement had
been met, prejudgment interest should not be awarded under
§ 45-103.02.
Later Orders.
On March 11, 2010, the district court entered an order on
the appellants’ motion to confirm the final judgment and to
fix a supersedeas bond. The court found that the total amount
of the judgment was $1,254,842, which consisted of $770,000
for interest charged on the loan from OeDC, $60,000 for the
additional supervisory fee paid to CrC, $88,228 for the inter-
est from kellom Heights’ bank accounts paid to OeDC, and
the $336,614 award of attorney fees to the appellees. The
court also estimated additional costs, including approximately
$7,015 of court costs and interest accruing on the judgment of
approximately $41,256, and $200 of costs awarded on appeal.
The court fixed a supersedeas bond at $1,303,313.
As noted above, the appellants filed an appeal following
the March 11, 2010, order. The Court of Appeals dismissed
the appeal because the district court had not yet ruled on fees
and costs for the accounting and thus had not disposed of the
entire case. On remand, the district court entered an order on
440 	283 NebrASkA repOrTS

June 17 in which it stated that the accounting action and all
issues in the case had been resolved and that any outstanding
motions or issues that may not have been specifically resolved
were overruled.
Current Appeal.
OeDC and CrC appealed the August 10, 2009, and February
12, March 11, and June 17, 2010, orders to the Court of
Appeals. The appellees filed a cross-appeal. We granted the
appellees’ petition to bypass the Court of Appeals and moved
the appeal to our docket.
ASSIGNMeNTS OF errOr
In their appeal, OeDC and CrC claim, renumbered and
restated, that the district court erred when it (1) rejected
their estoppel and statute of limitations defenses with regard
to interest charged on the $350,000 note and adoption of
Amendment 1, (2) found that Amendment 1 was invalid and
unenforceable, (3) found that the additional supervisory fee
required approval of the partners and was not valid, (4) rejected
their estoppel and statute of limitations arguments with regard
to the interest income from bank accounts paid to OeDC, (5)
ordered an accounting, (6) issued an advisory opinion regard-
ing the steps necessary for Cuming Street to become a general
partner, and (7) awarded attorney fees to the appellees and
required that such attorney fees be paid out of OeDC’s and
CrC’s own funds rather than out of the judgment.
In their cross-appeal, the appellees claim that the district court
erred when it denied their request for prejudgment interest.
STANDArDS OF revIeW
[1,2] Which statute of limitations applies is a question of
law. Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603
(2011). We reach a conclusion regarding questions of law inde-
pendently of the trial court’s conclusion. Id.
[3] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the district court on the issue of the statute of limita-
tions normally will not be set aside by an appellate court unless
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	441
Cite as 283 Neb. 428

clearly wrong. Bellino v. McGrath North, 274 Neb. 130, 738
N.W.2d 434 (2007).
[4] The interpretation of a contract is a question 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. Brook Valley Ltd. Part. v. Mutual of Omaha
Bank, 281 Neb. 455, 797 N.W.2d 748 (2011).
[5] On appeal, a trial court’s decision awarding or deny-
ing attorney fees will be upheld absent an abuse of discretion.
Armstrong v. County of Dixon, 282 Neb. 623, 808 N.W.2d
37 (2011).
[6] Statutory interpretation 	presents 	a question of law.
Downey v. Western Comm. College Area, 282 Neb. 970, 808
N.W.2d 839 (2012). An appellate court resolves questions of
law independently of the trial court. Id.
[7] Whether prejudgment interest should be awarded is
reviewed de novo on appeal. RSUI Indemnity Co. v. Bacon, 282
Neb. 436, 810 N.W.2d 666 (2011).
ANALySIS
Statute of Limitations.
We first address the appellants’ arguments that certain
claims were barred by the statute of limitations. If such claims
were barred, then we need not consider other assignments of
error with regard to such claims. because there are certain
common issues regarding the application of the statute of
limitations to each of the claims, we discuss such common
issues in this section, and in later sections, we discuss whether
each of the specified claims is barred by the applicable statute
of limitations.
The district court rejected the appellants’ affirmative defenses
regarding the statute of limitations with regard to all claims.
On appeal, the appellants claim that the court erred when it
rejected the statute of limitations defenses with regard to three
specific claims—the claim that the $350,000 note payable
and the interest paid thereon were improper, the claim that
Amendment 1 was adopted in contravention of the partnership
agreement, and the claim that the interest on bank accounts
held by kellom Heights was improperly taken by OeDC as
442 	283 NebrASkA repOrTS

“incentive income.” The appellants do not assert on appeal that
any of the other claims were barred by the statute of limita-
tions, and therefore, we consider statute of limitations issues
only in connection with the specified claims.
With regard to each of the three claims that the appellants
argue are barred by the statute of limitations, the appellees on
appeal characterize the entire action as an action for an equi-
table accounting between partners. As such, they note that an
action for an equitable accounting is subject to a 4-year stat-
ute of limitations, and they argue that they filed their action
within such 4-year period. The appellees assert that there is no
Nebraska precedent for when the statute of limitations period
begins to run in an action for an accounting among the partners
in a limited partnership, but they argue that the statute begins
to run either at the dissolution of the partnership or at the time
of a demand for an accounting. because kellom Heights, the
partnership in this case, is not being dissolved, they argue that
the statute of limitations did not begin to run until they filed
this action for an accounting.
The appellees’ reliance on law related to an accounting
action is misplaced. We note first that kellom Heights is not
being dissolved and that therefore, this action is not one for
an accounting in connection with the dissolution of a partner-
ship. Although on appeal, the appellees characterize the entire
action as one for an equitable accounting, the appellees brought
the action as a derivative action on behalf of kellom Heights
against the appellants.
Neb. rev. Stat. § 67-288 (reissue 2009), of the Nebraska
Uniform Limited partnership Act, provides:
A limited partner or an assignee of a limited partner
may bring an action in the name of a limited partnership
to recover a judgment in its favor if general partners with
authority to do so have refused to bring the action or if an
effort to cause those general partners to bring the action
is not likely to succeed.
pursuant to Neb. rev. Stat. § 67-290 (reissue 2009), “In a
derivative action, the complaint shall set forth with particular-
ity the effort of the plaintiff to secure initiation of the action by
a general partner or the reasons for not making the effort.”
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	443
Cite as 283 Neb. 428

In the operative second amended complaint in this case, the
appellees alleged, “This is a derivative action brought by vari-
ous Class A Limited partners of kellom Heights . . . on behalf
of [kellom Heights].” The appellees further alleged in the sec-
ond amended complaint:
plaintiffs have not made a demand upon General partner,
Defendant CrC, to bring this derivative action on behalf
of [kellom Heights], as such a demand would be futile,
since Defendant CrC is a named defendant in this
action, has participated in or has benefited from the
actions alleged in this Amended Complaint and previ-
ously has refused the reasonable demands of the Class A
Limited partners.
It is therefore clear that the appellees fashioned this action
as a derivative action on behalf of kellom Heights rather
than an action they brought as individual partners against the
partnership or against other partners. Therefore, this is not an
action under Neb. rev. Stat. § 67-425(2) (reissue 2009), which
provides, “A partner may maintain an action against the part-
nership or another partner for legal or equitable relief, with or
without an accounting as to partnership business . . . .”
Instead, this is an action brought by the appellees under
§ 67-425(1), which provides, “A partnership may maintain an
action against a partner for a breach of the partnership agree-
ment, or for the violation of a duty to the partnership, causing
harm to the partnership.” The appellees brought the action as
a derivative action under the authority of § 67-288. In each
claim, the appellees assert that CrC, the general partner, and
OeDC, a limited partner, breached the partnership agreement
or violated a duty to kellom Heights and caused harm to
kellom Heights in some respect. Although one of the claims set
forth by the appellees is characterized as “an accounting,” see
§ 67-425(2), in substance, the appellees asserted that as general
partner, CrC violated its fiduciary duty to provide a full and
complete accounting of kellom Heights’ financial transactions.
This is an action “against a partner.” See § 67-425(1).
We note the appellants raise no statute of limitations issue
with regard to the claim that CrC violated its duty to pro-
vide an accounting, and we need not determine the applicable
444 	283 NebrASkA repOrTS

statute of limitations for that claim. but the claims for which
the appellants raised statute of limitations issues are also
claims brought under § 67-425(1) asserting breaches of the
partnership agreement or fiduciary duties. As the appellants
note, § 67-425(3) provides in part, “The accrual of, and any
time limitation on, a right of action for a remedy under this
section is governed by other law.” We read this to mean that
the accrual of and time limitation for an action brought under
§ 67-425(1) is not set by the statute itself but instead is to be
determined by reference to other law, depending on the type
of claim made by the partnership against the partner. With this
understanding, we can analyze the proper statute of limitations
applicable to each claim at issue.
Statute of Limitations: Note Payable
and Interest Thereon.
OeDC and CrC first claim that the district court erred
when it rejected their statute of limitations defense as to the
claims regarding the $350,000 promissory note and interest
paid thereon. We conclude that the limited partners had notice
of the claims and that therefore, the statute of limitations ran
before they filed this action. The district court’s ruling to the
contrary was error, and in particular, its award of $770,000 plus
interest to the appellees is reversed and set aside.
The appellees’ claims with respect to the note payable were,
inter alia, that OeDC mischaracterized the 1982 transfer of
$350,000 from OeDC to kellom Heights as a loan rather
than a grant and that the partnership agreement prohibited the
payment of interest from kellom Heights to OeDC. Which
statute of limitations applies is a question of law. Mandolfo
v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011). We read
these claims as claims for fraud to which the 4-year statute
of limitations under Neb. rev. Stat. § 25-207(4) (reissue
2008) applies.
[8] In Bowling Assocs. Ltd. v. Kerrey, 252 Neb. 458, 562
N.W.2d 714 (1997), limited partners in 1993 brought a deriva-
tive action on behalf of the partnership against the gen-
eral partners alleging that in 1983, the general partners had
received a $25,000 payment from the partnership that was
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	445
Cite as 283 Neb. 428

not authorized by the partnership agreement. We concluded
that the claim was an action for relief on the ground of fraud
subject to § 25-207(4), which provides that such action “can
only be brought within four years” but that “the cause of
action in such case shall not be deemed to have accrued until
the discovery of the fraud.” We described the time of accrual
of such action to be when “there has been a discovery of the
facts constituting the fraud, or facts sufficient to put a person
of ordinary intelligence and prudence on an inquiry which, if
pursued, would lead to such discovery.” Bowling Assocs. Ltd.,
252 Neb. at 461, 562 N.W.2d at 717. We concluded in Bowling
Assocs. Ltd. that copies of the 1983 financial statements that
were received by the limited partners in 1984 and that clearly
indicated the payment of the $25,000 “would have put a per-
son of ordinary intelligence and prudence on inquiry notice
which, if pursued, would lead to discovery of a potential cause
of action.” Id. We further noted that the “appellants received
no new information with regard to the payment since receiv-
ing the financial statements for 1983” and that the appellants
“failed to demonstrate why what was sufficient to put them
on notice in 1992 was insufficient to put them on notice in
1984.” Id.
Similarly, in the present case, we conclude that the claims
related to the note payable and the interest thereon were time
barred. The note and interest were reported in the annual
financial statements provided to the limited partners between
1982 and 1984. The district court noted in the August 10,
2009, order that the financial statements for those years dis-
closed that OeDC was a limited partner and that the note
payable bore interest at 10 percent. As discussed below,
the district court erred in assessing the legal significance of
these facts.
The district court did not find that the limited partners did
not have knowledge of the note payable and the fact that it
bore interest. Instead, the court stated that OeDC and CrC
had a fiduciary duty to advise the other partners that the
act of charging interest on the note violated the partnership
agreement. We disagree that such notification was necessary
in order for these claims to accrue. Instead, a cause of action
446 	283 NebrASkA repOrTS

for fraud accrues under § 25-207(4) when “there has been a
discovery of the facts constituting the fraud, or facts suffi-
cient to put a person of ordinary intelligence and prudence on
an inquiry which, if pursued, would lead to such discovery.”
Bowling Assocs. Ltd, 252 Neb. at 461, 562 N.W.2d at 717.
The necessary facts in this instance were that a note payable
to OeDC had been issued, that OeDC was a partner, and that
the note bore interest. Such facts would be enough to lead to
a discovery that the note was in violation of a prohibition on
interest-bearing notes; the limited partners did not need to be
specifically advised that these facts constituted a violation,
as long as pursuit of such facts would lead to the discovery
of fraud.
The appellees argue that there was not notice because the
appellants could not prove that all the limited partners received
the financial statements from 1982 through 1984. because this
action was brought as a derivative action on behalf of kellom
Heights, the relevant issue is whether it had notice of the trans-
actions. And because this action asserts fraud committed by
OeDC and CrC, their knowledge is not relevant as knowledge
of kellom Heights.
The question before us is whether knowledge by some, but
not necessarily all, limited partners is knowledge by the partner-
ship. We look to the Nebraska Uniform Limited partnership Act,
Neb. rev. Stat. § 67-233 et seq. (reissue 2009), as enacted, and
we note that the uniform act has been revised since Nebraska’s
version was enacted but that such revisions, not having been
enacted in Nebraska, do not control our analysis. The Nebraska
Uniform Limited partnership Act does not contain a provision
regarding whether notice to limited partners is notice to the
partnership. This differs from the Uniform Limited partnership
Act (2001), not adopted by Nebraska, which provides that a
general partner’s knowledge, notice, or receipt of a notifica-
tion of a fact is effective as to the limited partnership, but that
a limited partner’s notice is not. See Unif. Limited partnership
Act (2001) § 103(h), 6A U.L.A. 363-64 (2008). We note that
§ 67-294 of the Nebraska Uniform Limited partnership Act as
enacted in Nebraska provides, “In any case not provided for in
the Nebraska Uniform Limited partnership Act, the Uniform
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	447
Cite as 283 Neb. 428

partnership Act of 1998 shall govern.” We therefore rely on the
Uniform partnership Act of 1998, Neb. rev. Stat. § 67-401 et
seq. (reissue 2009), for our analysis.
With regard to notice and knowledge of a partnership,
§ 67-403(6) of the Uniform partnership Act of 1998 provides:
A partner’s knowledge, notice, or receipt of a notification
of a fact relating to the partnership is effective immedi-
ately as knowledge by, notice to, or receipt of a notifi-
cation by the partnership, except in the case of a fraud
on the partnership committed by or with the consent of
that partner.
because the Nebraska Uniform Limited partnership Act does
not specifically address whether notice to a general or limited
partner is effective as to the partnership, pursuant to § 67-294,
we look to § 67-403(6) of the Uniform partnership Act of
1998 and conclude that it applies to this limited partnership
issue. Under § 67-403(6), notice to any partner is effective as
notice to the partnership. Whether this principle is applicable
in other contexts, given the statutes adopted by the Legislature,
we conclude that it applies to this notice issue in a derivative
action brought by limited partners on behalf of the partnership
against a general partner. Although the appellees point out that
some limited partners claim to have not seen the 1982 through
1984 financial statements, the appellants demonstrated that at
least some of the limited partners had received the financial
statements, and thus, applying § 67-403(6) of the Uniform
partnership Act of 1998 as we must, the appellants established
that there was notice on some limited partners, and notice to
any partner was effectively notice to kellom Heights.
We conclude that the facts known to some of the limited
partners in 1982 through 1984 would have put them on inquiry
to a potential fraud. The district court therefore should have
found in favor of the appellants on their affirmative defense
based on the statute of limitations regarding payment of inter-
est on the note payable. The district court should have dis-
missed these claims as time barred. We therefore reverse
that portion of the August 10, 2009, order in which the court
concluded that payment of interest on the note payable was in
violation of the partnership agreement and that therefore, the
448 	283 NebrASkA repOrTS

$770,000 OeDC or CrC received from kellom Heights as
interest should be repaid with additional interest. We set aside
this award.
In view of our disposition of this issue, we need not consider
the appellants’ other assignments of error and arguments with
regard to the note payable and the interest paid thereon.
Statute of Limitations: Validity and
Enforceability of Amendment 1.
OeDC and CrC next claim that the district court erred when
it rejected their statute of limitations defense to the appel-
lees’ claim that Amendment 1 was adopted in contravention
of the partnership agreement. We conclude that this claim was
time barred and that the district court’s ruling to the contrary
was error.
Like the claims related to the note payable and interest
thereon just discussed, these are essentially claims of fraud
to which the 4-year statute of limitations under § 25-207(4)
applies. See Bowling Assocs. Ltd. v. Kerrey, 252 Neb. 458,
562 N.W.2d 714 (1997). As explained below, the limited part-
ners learned of the purported adoption of Amendment 1 and
the changes made thereby at the latest in 1982. The appellees
therefore filed their claim relative to Amendment 1 long after
the statute had run on it.
In its August 10, 2009, order, the court noted that the lim-
ited partners were advised of Amendment 1 in letters sent
October 7, 1981, and April 28, 1982. The April 28, 1982,
letter indicated that Amendment 1 was enclosed with the let-
ter and was sent to all limited partners. The appellants argue
that the court erred when it determined that the October
1981 letter did not provide sufficient notice of the proposed
changes to Class A limited partner subscribers and when it
further found that a letter to subscribers enclosing the entire
text of Amendment 1 in April 1982 “advised less [about
Amendment 1] than the letter of October 7, 1981.” Finally,
with respect to Amendment 1, the appellants contend that
the court erred in failing to properly consider the appellants’
proof of yet a third notice to Class A limited partners of the
changes made by Amendment 1 in May 1982, when a copy of
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	449
Cite as 283 Neb. 428

the certificate of limited partnership reflecting those changes
was mailed to the limited partners.
Similar to the claims regarding the note payable, the appel-
lants showed that in 1982, the limited partners as a group
were informed that Amendment 1 had been adopted and of
the contents of Amendment 1. Upon receipt of Amendment 1
as adopted, the limited partners would have known whether
or not they voted on Amendment 1. Therefore, to the extent
the appellees claim that Amendment 1 could not be adopted
without their approval, they had notice of the facts necessary
which with due inquiry would have advised them of a cause
of action.
We 	conclude 	that 	the 	cause 	of 	action 	with 	regard 	to
Amendment 1 was time barred. The district court should
have dismissed the cause of action related to the adoption of
Amendment 1 as time barred. We therefore reverse that por-
tion of the August 10, 2009, order in which the district court
found that Amendment 1 was not adopted and concluded that
it was unenforceable. In view of our disposition of this issue,
we need not consider the other arguments with regard to
Amendment 1.
Statute of Limitations: Award of Interest
From Bank Accounts.
OeDC and CrC next claim that the district court erred when
it rejected their statute of limitations and estoppel defenses to
the appellees’ claim regarding interest on reserves that was
taken by OeDC as “incentive income.” We conclude that the
district court did not err when it rejected these defenses and
directed the appellants to return such interest.
We reject the appellants’ argument that this claim was time
barred. Similar to the claims regarding the note payable and
Amendment 1, these claims are essentially claims that the
appellants committed a fraud. The claim was therefore subject
to the 4-year statute of limitations. See Bowling Assocs. Ltd.,
supra. The statute does not begin until the fraud was discov-
ered or should have been discovered. Id.
The appellants argue that the decision to pay account inter-
est to OeDC occurred over 20 years prior to trial and ceased
450 	283 NebrASkA repOrTS

in 2001, well before this dispute arose. We conclude, however,
that because the limited partners did not receive financial infor-
mation during the period the payments were made, they did not
have notice of the claim until they received financial informa-
tion in connection with this action. Therefore, the statute of
limitations did not run before they filed this action and the
district court did not err in so ruling.
The district court found that from 1986 through 2001,
OeDC took interest that had been earned on funds held by
kellom Heights in various bank accounts. The court concluded
that the partnership agreement did not authorize OeDC to take
the interest, and the court therefore ordered OeDC to return
the $88,228 that had been taken from 1986 through 2001 with
additional interest. In contrast to the appellees’ claims regard-
ing the $350,000 note payable and the interest paid thereon,
for which the limited partners received financial statements
from 1982 through 1984 that gave them notice of the note and
the interest being charged thereon, the appellants provided
no evidence to support their defense that the limited part-
ners were given financial statements between 1986 and 2001
that would have informed them that OeDC was taking the
interest paid on accounts as “incentive income.” The record
indicates that the limited partners did not learn of the pay-
ments until after the present action had begun and the court
had ordered OeDC and CrC to provide financial information
to the limited partners. because the limited partners did not
have knowledge of the transactions and OeDC and CrC’s
knowledge is not effective as to kellom Heights because they
are alleged to have been defrauding kellom Heights, the claim
did not accrue until the limited partners learned of the trans-
actions in connection with this action. The claim therefore
was not time barred.
[9] We also reject the appellants’ assertion that this claim
was barred by equitable estoppel. The appellants cite Baye
v. Airlite Plastics, 260 Neb. 385, 390, 618 N.W.2d 145, 150
(2000), in which we stated:
Under Nebraska law, the doctrine of equitable estoppel
is frequently applied to transactions in which it is found
that it would be unconscionable to permit a person to
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	451
Cite as 283 Neb. 428

maintain a position inconsistent with one in which he or
she has acquiesced or of which he or she has accepted any
benefit. . . .
The acceptance of any benefit from a transaction or
contract, with knowledge or notice of the facts and rights,
will create an estoppel.
(Citations omitted.) equitable estoppel is not applicable in this
case, because as noted above, the limited partners did not have
knowledge of the transactions and therefore could not have
acquiesced, nor did the limited partners benefit from the appel-
lants’ taking interest from kellom Heights.
The appellants make no other assignments of error with
regard to this claim. We therefore affirm that portion of the
August 10, 2009, order in which the court concluded that
interest taken from kellom Heights from 1986 through 2001
totaling $88,228 should be returned to kellom Heights with
additional interest.
Validity of Additional Supervisory Fee.
OeDC and CrC next claim that the district court erred when
it concluded that CrC improperly increased its annual supervi-
sory fee by $12,000 to a total of $36,000. They argue that the
partnership agreement did not prohibit the increase, that the
disclosure in the ppM of initial fees totaling $24,000 per year
was not a contractual limitation of fees, and that the increase
was not a breach of CrC’s fiduciary duty because the increase
was fair. We conclude that the court erred when it concluded
that the increased fee breached the partnership agreement and
awarded $60,000. We reverse and set aside this award; how-
ever, we remand the cause to the district court to determine
whether the increase breached a fiduciary duty that CrC owed
to kellom Heights.
As the court noted, § 5.2 of the ppM stated that the general
partner would receive a fee of $12,000 per year for providing
“overall supervision services” and that to the extent the gen-
eral partner began performing the function of kellom Heights’
manager in future years, the general partner would be entitled
to compensation for those services in an amount not to exceed
the amount then being paid for such services. Section 5.3 of the
452 	283 NebrASkA repOrTS

ppM stated that the manager of kellom Heights would be paid
a fee of $12,000 per year. As general partner, CrC received
the $12,000 annual supervisory fee; after the first year of the
formation of kellom Heights, CrC took over the duties of the
individual who had originally served as kellom Heights’ man-
ager and began receiving the $12,000 annual management fee.
The court did not find, and the appellees did not assert, that it
was improper for CrC to receive $24,000 per year for manage-
ment and supervision.
The court noted, however, that kellom Heights’ financial
statements show that beginning in 2001, kellom Heights paid
CrC a “partnership management fee” of $36,000 per year. The
court concluded that § 5.2 of the ppM limited the management
fee to the amount being paid at the time of the ppM and that
the fee was increased by $12,000 in 2001 without following
proper procedures under the partnership agreement and without
proper notice sent to the partners.
OeDC and CrC argue that the partnership agreement does
not bar an increase in the supervisory fees. They note that
§ 6.1 of the partnership agreement provides that except to
the extent that the consent of the limited partners is required
under the agreement, the general partner has “full, complete
and exclusive discretion to manage and control the business
of [kellom Heights].” They note further that § 67-239 of the
Nebraska Uniform Limited partnership Act provides that a
partner may “transact other business with the limited partner-
ship and, subject to other applicable law, has the same rights
and obligations with respect thereto as a person who is not a
partner.” OeDC and CrC argue that the ppM is not a con-
tractual obligation and therefore does not limit the amount
of supervisory fees that can be paid. The appellants note that
the ppM itself provides and warns that statements in the ppM
“in no way modify or amend the partnership Agreement.” The
appellants further argue that the partnership agreement does
not require the consent of limited partners to determine a man-
agement fee and that pursuant to § 67-239, kellom Heights
could determine a management fee to be paid to CrC as it
would to any other person who was not a partner. They further
argue that the increased fee was reasonable and not a breach
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	453
Cite as 283 Neb. 428

of fiduciary duty because the increase came after 20 years and
was not in excess of inflation.
The appellees argue in response that because the partner-
ship agreement does not specifically address the payment of
supervisory or management fees, the ppM controls the issue
and limits such fees to the total of $24,000. They also assert
that the increased fee was a self-dealing transaction and that
pursuant to § 67-404(2)(c)(ii) of the Uniform partnership Act
of 1998, “a specific act or transaction that otherwise would
violate the duty of loyalty” may be authorized by the partners
“after full disclosure of all material facts.” They argue that the
self-dealing transaction was not authorized or ratified by the
partners after full disclosure.
Interpretation of a contract is a question of law. Brook Valley
Ltd. Part. v. Mutual of Omaha Bank, 281 Neb. 455, 797 N.W.2d
748 (2011). We conclude that the district court erred when it
concluded by reference to the ppM that the increase in super-
visory fees was prohibited by the partnership agreement. by
its terms, the ppM was not part of the partnership agreement;
instead, it provided disclosures to potential investors regarding
the future operation of kellom Heights and referred potential
investors to the partnership agreement. In any event, the quoted
sections of the ppM disclosed the payment of supervisory fees
to the general partner and the possibility that management
fees would be paid to the general partner at the rate currently
paid to another individual if the general partner subsequently
took over such duties. The court and the appellees do not cite
any provision of the actual partnership agreement that either
limited the fees that could be paid or required the approval of
the limited partners before the fees paid to the general partner
could be increased.
[10] Although we conclude that the court erred when it
found the increase violated the partnership agreement, we note
that because of such resolution, the district court did not con-
sider whether the amount of the increase nevertheless violated
a fiduciary duty that CrC had to kellom Heights. OeDC and
CrC argue to this court that the increase did not breach a fidu-
ciary duty because it was fair in light of inflation. However,
because the district court did not reach such issue, we will not
454 	283 NebrASkA repOrTS

determine this fairness issue on appeal. An issue not passed on
by the trial court is not appropriate for consideration on appeal.
See Robinson v. Dustrol, Inc., 281 Neb. 45, 793 N.W.2d 338
(2011). Therefore, we determine that the district court’s con-
clusion that the fee increase was improper under the partner-
ship agreement by reference to the ppM was error and reverse
the $60,000 award. We remand the cause to the district court to
determine whether the fee increase breached a fiduciary duty
to kellom Heights.
Accounting.
OeDC and CrC next claim that the district court erred when
it granted the appellees’ request for an accounting because
OeDC and CrC had met such demand and had produced
audited financial statements for every year of kellom Heights’
existence, as well as other detailed financial information of
kellom Heights, and therefore had satisfied the appellees’
demand for an accounting. We conclude that the court did not
err when it ordered the appellants to comply with their duty to
provide financial information to the partners.
The appellees claimed that CrC had a fiduciary duty to
provide financial information regarding kellom Heights to the
limited partners and that it had failed to provide such infor-
mation. They requested an accounting for “all assets, income
and expenditures of [kellom Heights], and particularly for all
profits and monies received, disbursed and retained by [kellom
Heights] since [its] formation.” The district court granted the
request and ordered the appellants to “make available to the
plaintiffs all books and records of [kellom Heights] since
[its] formation.”
OeDC and CrC claim that it was improper for the court to
order an accounting. CrC asserts that it had provided all the
information the appellees demanded and that the appellees did
not meet the requirements for an additional accounting.
We conclude that it was proper for the court to order
the appellants to provide financial information to the appel-
lees. As discussed earlier, this action was not in essence an
action for an accounting in the sense such term is under-
stood in connection with the dissolution of a partnership.
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	455
Cite as 283 Neb. 428

Instead, the appellees brought a derivative action on behalf of
kellom Heights in which they asserted that the appellants had
breached certain fiduciary duties. Among those was a duty to
provide financial information regarding kellom Heights. The
court found that CrC had failed to provide such informa-
tion over the years and therefore ordered the appellants to
comply with their duties and make the information available
to the limited partners. OeDC and CrC make no argument
that the limited partners were not entitled to the information.
Furthermore, to the extent the appellants assert that they have
already provided the information, there is no prejudice to
the appellants and there would be nothing to be gained from
reversing the order.
We conclude that the district court did not err when it
ordered the appellants to make financial information regarding
kellom Heights available to the limited partners, and we there-
fore affirm such portion of the order.
Steps for Cuming Street to Become
a General Partner.
OeDC and CrC next claim that the district court erred when
it issued an advisory opinion concerning the status of Cuming
Street’s efforts to become an additional general partner. We
conclude that because the court denied the appellees’ claims
seeking an order directing Cuming Street to be appointed as a
general partner and that CrC be enjoined from interfering with
Cuming Street’s exercise of general partner powers, the court
should not have opined on what further steps Cuming Street
needed to take, and we therefore vacate that portion of the
order addressing such additional steps.
The appellees sought a declaration that admission of Cuming
Street as a general partner was in conformity with law and
with the partnership agreement. They also sought to enjoin
CrC from refusing to complete additional steps necessary to
admit Cuming Street as a general partner and to enjoin CrC
from interfering with Cuming Street’s exercise of its rights
and powers as a general partner. The district court ultimately
denied the appellees’ claims for declaratory and injunctive
relief “at this time,” because it concluded that although there
456 	283 NebrASkA repOrTS

had been compliance with most of the requirements, there
were additional steps that needed to be completed for Cuming
Street to become a general partner.
We conclude that portions of the court’s order with respect
to Cuming Street were conditional orders. The record indicates
that steps were being taken to make Cuming Street a general
partner but that not all steps had been completed. For that rea-
son, the court denied the appellees’ claims for declaratory and
injunctive relief. However, the court went further by stating
that when certain additional steps were taken, Cuming Street
would become a general partner.
[11-13] A “judgment” is a court’s final consideration and
determination of the respective rights and obligations of the
parties to an action as those rights and obligations presently
exist. Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d
821 (2006). Thus, we have held that orders purporting to be
final judgments, but that are dependent upon the occurrence
of uncertain future events, do not operate as “judgments” and
are wholly ineffective and void as such. Id. These “conditional
judgments” are not final determinations of the rights and obli-
gations of the parties as they presently exist, but, rather, look
to the future in an attempt to judge the unknown. Id. We have
held that a conditional judgment is wholly void because it does
not “perform in praesenti” and leaves to speculation and con-
jecture what its final effect may be. See id. While conditional
orders will not automatically become final judgments upon the
occurrence of the specified conditions, they can operate in con-
junction with a further consideration of the court as to whether
the conditions have been met, at which time a final judgment
may be made. Id.
In the present case, the district court’s denial of declaratory
and injunctive relief was the judgment based on conditions as
they then existed. The court’s statement that Cuming Street
would become a general partner upon the completion of out-
lined additional steps was a conditional judgment because it
was not based on conditions that presently existed but looked
to future events. To the extent the court’s order judged future
events, it is void. The court cannot make such determination
until the steps have been completed.
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	457
Cite as 283 Neb. 428

We therefore affirm the portion of the August 10, 2009,
order in which the court denied the appellees’ claims for
declaratory and injunctive relief regarding Cuming Street’s
becoming a general partner, but we strike that portion of the
August 10 order in which the court opined that Cuming Street
would become an additional general partner when the specified
steps were taken.
Attorney Fees.
OeDC and CrC finally claim that the district court erred
when it granted the appellees’ requests for attorney fees. They
argue that
(1) under the statute by which Appellees claimed a right
to fees, the fees should have been paid from the com-
mon fund and not by Appellants as a separate award;
(2) the court failed to reduce the fee award for claims
on which Appellees did not prevail, for claims that were
individual rather than derivative, and for claims chal-
lenging actions the General partner took on advice of
counsel and for which it is entitled to immunity under the
partnership Agreement.
brief for appellants at 22. because of our disposition of other
assignments of error on appeal, we reverse the district court’s
award of attorney fees and remand the cause for a new award
of attorney fees. However, we comment on certain issues raised
by OeDC and CrC.
[14] because we reverse the district court’s rulings on cer-
tain claims and are remanding for further proceedings on cer-
tain claims, we reverse the award of attorney fees and remand
the cause to the district court to determine appropriate attorney
fees considering the claims on which the appellees are ulti-
mately successful. However, we address certain issues with
regard to attorney fees, because such issues will likely recur on
remand. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings. In re Interest of
A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
The present action was a derivative action brought by
the appellees on behalf of kellom Heights. Section 67-291
provides:
458 	283 NebrASkA repOrTS

If a derivative action is successful, in whole or in
part, or if anything is received by the plaintiff as a result
of a judgment, compromise, or settlement of an action
or claim, the court may award the plaintiff reasonable
expenses, including reasonable attorney’s fees, and shall
direct him or her to remit to the limited partnership the
remainder of those proceeds received by him or her.
The statute authorizes an award of reasonable attorney fees
when the derivative action is successful in whole or in part.
The appellees’ derivative action has been successful at least in
part, and therefore reasonable attorney fees may be awarded to
the appellees reasonably commensurate with their success.
OeDC and CrC argue that certain claims were not deriva-
tive and that therefore, no fees should be awarded with respect
to such claims. They specifically argue that the claims regard-
ing Amendment 1, the appointment of Cuming Street, and the
request for an accounting were not derivative claims and that
therefore, fees should not be awarded in connection with such
claims. We note, however, that whether or not the claims with
regard to Amendment 1 or Cuming Street were derivative, the
appellees were not ultimately successful on either claim. As we
decided above, the Amendment 1 claim was time barred. Also,
the appellees’ claims with regard to the appointment of Cuming
Street were denied by the district court. Therefore, the court
should not on remand award attorney fees with respect to those
claims. With regard to the accounting, as noted above, this
request was in fact a claim that CrC failed in its fiduciary duty
to report financial information to the limited partners. This was
a proper derivative claim, and the appellees were successful;
therefore, they should be awarded attorney fees associated with
this claim.
OeDC and CrC also argue that no attorney fees should be
awarded with regard to three claims: Amendment 1, interest
on the note payable, and admission of Cuming Street, because
they took the disputed actions with respect to those claims on
the advice of counsel. As noted above, the appellees were not
ultimately successful on Amendment 1 because we found it
time barred. The same is true with regard to interest on the note
payable. In addition, as noted above, the district court denied
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	459
Cite as 283 Neb. 428

the relief the appellees requested with regard to the appointment
of Cuming Street. Therefore, regardless of whether OeDC and
CrC relied on the advice of counsel and regardless of whether
an advice of counsel exception would apply, the appellees
should not be awarded attorney fees relative to those claims,
because they were not successful.
Finally, we agree with the district court’s determination that
the attorney fees should be awarded in addition to the judg-
ment rather than being taken out of the judgment. OeDC and
CrC argue that the language in § 67-291 stating that “the court
may award the plaintiff reasonable expenses, including reason-
able attorney’s fees, and shall direct him or her to remit to the
limited partnership the remainder of those proceeds received
by him or her” means that the appellees must take their attor-
ney fees out of the judgment and then remit the remainder to
kellom Heights. We disagree with this interpretation.
[15] Statutory interpretation presents a question of law.
Downey v. Western Comm. College Area, 282 Neb. 970, 808
N.W.2d 839 (2012). An appellate court resolves questions of
law independently of the trial court. Id. We read § 67-291 as
providing that the court may award expenses, including attor-
ney fees, as a separate component of the judgment. The statute
then requires that in a derivative action, the plaintiff may retain
the portion of the judgment awarded as expenses, but any addi-
tional proceeds of the judgment that the plaintiff receives must
be remitted to the partnership.
We therefore agree with the district court’s conclusion that
attorney fees are properly awarded as a separate item within
the overall judgment. However, we reverse and set aside the
award of attorney fees in this case and remand the cause for
a new order regarding an appropriate amount of fees in light
of the action taken on remand pursuant to the remainder of
this opinion.
Cross-Appeal: Prejudgment Interest.
The appellees claim in their cross-appeal that the district
court erred when it denied their request for prejudgment inter-
est. We conclude that the court did not err when it denied pre-
judgment interest.
460 	283 NebrASkA repOrTS

Due to our resolution of the assignments of error on appeal,
the only remaining claims on which the appellees could poten-
tially recover prejudgment interest are the judgment of $88,228
for interest taken from kellom Heights from 1986 through
2001, which judgment we affirmed, and the potential for a
judgment of $60,000 for increased supervisory fees in the
event that on remand, the court finds that the increased fees
were not proper. As noted above, the judgment for $770,000 of
interest on the note payable was reversed and set aside because
the claim was time barred. Therefore, we consider whether the
appellees are entitled to prejudgment interest on the affirmed
$88,228 judgment for interest taken by the appellants from
kellom Heights from bank accounts and on the potential judg-
ment of $60,000 for additional supervisory fees.
[16] 	The 	appellees 	argued 	to 	the 	district 	court 	that
they should be awarded prejudgment interest under both
§ 45-103.02(2) and § 45-104. Interpretation of a statute is a
question of law. Downey, supra. Section § 45-103.02(2) pro-
vides that prejudgment interest “shall accrue on the unpaid
balance of liquidated claims from the date the cause of action
arose until the entry of judgment.” 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.
Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790
N.W.2d 873 (2010). A two-pronged inquiry is required. There
must be no dispute either as to the amount due or as to the
plaintiff’s right to recover, or both. Id. In denying prejudgment
interest under § 45-103.02(2), the district court noted that
in this case, a trial was required to determine both liability
and damages. The court concluded that neither requirement
of § 45-103.02 had been met and that prejudgment interest
should not be awarded.
With regard to both the claim for the interest taken and the
claim for increased supervisory fee, although there was no
serious dispute as to the amount at issue, there was a reason-
able controversy with respect to liability, and accordingly, we
conclude that the district court did not err in refusing to award
prejudgment interest under § 45-103.02.
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	461
Cite as 283 Neb. 428

Section 45-104 provides:
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.
The district court concluded that prejudgment interest was not
recoverable under § 45-104.
Section 45-104 applies to four types of judgments: (1)
money due on any instrument in writing; (2) settlement of the
account from the day the balance shall be agreed upon; (3)
money received to the use of another and retained without the
owner’s consent, express or implied, from the receipt thereof;
and (4) money loaned or due and withheld by unreasonable
delay of payment. In this case, the claims for interest taken
and for additional supervisory fees are not claims related to
an instrument in writing, settlement of an account, or money
loaned and due and withheld by unreasonable delay. However,
the appellees argue that they are claims related to “money
received to the use of another and retained without the owner’s
consent” under § 45-104.
With regard to the claims of interest taken and of additional
supervisory fees, the appellees claimed that OeDC and/or
CrC fraudulently took kellom Heights’ money for their own
use and retained such money without kellom Heights’ consent.
We conclude that these claims are not within the operation of
§ 45-104. In this case, the appellees did not allege that the
appellants received money on behalf of kellom Heights and
diverted it and retained it for themselves; instead, they alleged
that the appellants fraudulently took money that was already in
the hands of kellom Heights. We therefore conclude that the
462 	283 NebrASkA repOrTS

district court did not err when it denied the appellees’ request
for prejudgment interest under § 45-104.
CONCLUSION
regarding the appellants’ statute of limitations defenses,
we conclude that the district court erred when it rejected the
appellants’ statute of limitations defenses as to the claims
regarding the note payable and the interest thereon and the
claim regarding Amendment 1. We therefore reverse the court’s
rulings on these claims and remand the cause with directions
to set aside the judgment on these claims and to dismiss these
claims. However, we affirm the court’s judgment denying the
statute of limitations and other defenses to the claim regarding
interest on bank accounts and we affirm the court’s judgment
on that claim.
With regard to the claim concerning additional supervisory
fees, we conclude that the court erred when it referred to the
ppM in its disposition of this claim and erred when it concluded
that the increase was specifically prohibited by the partnership
agreement. We therefore reverse its ruling that the additional
supervisory fees were not permitted and set aside the judgment
on this claim. because of its disposition of the claim, the court
did not consider whether the increase breached a fiduciary duty
that CrC had to kellom Heights, and we therefore remand the
cause to the district court to consider that issue.
We affirm the district court’s order directing the appel-
lants to make financial information regarding kellom Heights
available to limited partners. We also affirm the portion of the
August 10, 2009, order in which the court denied the appellees’
claims regarding making Cuming Street a general partner, but
we strike that portion of the order in which the court opined
that Cuming Street would become an additional general partner
when specified steps were taken.
We affirm the district court’s determination that attorney fees
were properly awarded to the appellees separate from the judg-
ment, but we reverse and set aside the award of attorney fees
and remand the cause for a new order regarding an appropriate
amount of fees in light of the remainder of this opinion.
FITzGerALD v. COMMUNITy reDeveLOpMeNT COrp. 	463
Cite as 283 Neb. 428

Finally, concerning the appellees’ cross-appeal, we conclude
that the court did not err when it denied the appellees’ request
for prejudgment interest, and we affirm such denial.
aFFirmEd in part, and in part rEvErsEd and
rEmandEd For FurthEr procEEdinGs.
GErrard, J., not participating in the decision.
WriGht, J., not participating.
city oF WavErly, nEbrasKa , appEllEE, v.
richard m. hEdricK, appEllant.
810 N.W.2d 706
Filed March 9, 2012. 	No. S-11-333.
1. 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.
2. Jurisdiction: Judgments: Appeal and Error. Determination of a jurisdictional
issue which does not involve a factual dispute is a matter of law which requires
an appellate court to reach its conclusions independent from a trial court.
3. Courts: Eminent Domain. The powers conferred upon the county court judge by
the condemnation statutes are not judicial powers or duties, but are instead purely
ministerial in character.
4. Eminent Domain: Words and Phrases: Appeal and Error. Only when the
appraiser’s report is appealed to the district court do condemnation proceedings
become judicial.
5. Eminent Domain: Pleadings: Statutes. The statutes relating to condemna-
tion proceedings contemplate the filing of pleadings and the framing of any
issues—other than damages to the condemnee—for the first time in the judicial
proceeding in district court.
6. Judgments: Evidence. Determination of questions of fact upon evidence, or the
exercise of discretion in ascertaining or fixing an amount to be allowed, generally
involves judicial rather than ministerial acts.
7. Eminent Domain: Liens: Interest. The existence and amount of a lien, the
amount of accrued interest, and whether there should be a setoff from the con-
demnation award involve judicial, rather than ministerial, determinations.
8. Eminent Domain: Courts: Jurisdiction. because the eminent domain statutes
do not confer upon county courts the power to hear motions for setoff, they lack
jurisdiction to do so.
9. Eminent Domain: Courts: Jurisdiction: Appeal and Error. In condemnation
proceedings, the district court has original as well as appellate jurisdiction over
464 	283 NebrASkA repOrTS