Brook Valley Ltd. Part. v. Mutual of Omaha Bank

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	157
Cite as 285 Neb. 157
§§ 7-114 and 7-115 (Reissue 2012) and § 3-310(P) and Neb.
Ct. R. § 3-323(B) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of public reprimand.
brook valley limited partnership, a nebraska limited
partnership, and brook valley ii, ltd, a nebraska
limited partnership, appellees, v. mutual of omaha
bank, formerly known as nebraska state bank of
omaha, a state banking institution, and omaha
financial holdings, inc., a nebraska corporation,
successor to midlands financial services, inc.,
a nebraska corporation, appellants.
825 N.W.2d 779
Filed February 1, 2013. 	No. S-12-039.
1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict, which an appellate court will
not disturb on appeal unless clearly wrong. And an appellate court does not
reweigh the evidence but considers the judgment in the light most favorable to
the successful party and resolves evidentiary conflicts in favor of the success-
ful party.
2. Prejudgment Interest: Appeal and Error. An appellate court reviews de novo
whether a court should award prejudgment interest.
3. Conversion: Property. Conversion lies only for serious interference with posses-
sory interests in personal property, not real property.
4. Conversion: Words and Phrases. Conversion is any unauthorized or wrongful
act of dominion exerted over another’s property which deprives the owner of his
property permanently or for an indefinite period of time.
5. Contracts: Ratification: Words and Phrases. Ratification is the acceptance of a
previously unauthorized contract.
6. Ratification: Agents. Ratification of an agent’s unauthorized acts may be made
by overt action or inferred from silence and inaction.
7. ____: ____. Retention of benefits secured by an agent’s unauthorized act with
knowledge of the source of such benefits and the means by which they were
obtained is a ratification of the agent’s act.
8. Ratification. Whether there has been a ratification is ultimately and ordinarily a
question of fact.
9. Ratification: Pleadings: Proof. Because ratification is an affirmative defense,
the burden of proving ratification rests on the party who pleaded it.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

158 	285 NEBRASKA REPORTS
10. Partnerships: Ratification. In cases where a partner’s act is not within the scope
of the partnership’s business and is not authorized by the partners, a transaction is
still binding on the partnership if it is ratified by those partners who would have
had the power to authorize the act.
11. 	Principal and Agent: Property. “Money received to the use of another” under
Neb. Rev. Stat. § 45-104 (Reissue 2010) indicates that the money is received
on behalf of another person, such as an agent receiving money on behalf of
his principal.
12. Prejudgment Interest: Claims. Prejudgment interest may only be recovered
under Neb. Rev. Stat. § 45-103.02(2) (Reissue 2010) when the claim is liqui-
dated. A claim is liquidated when there is no reasonable controversy as to both
the amount due and the plaintiff’s right to recover.
Appeal from the District Court for Sarpy County: david k.
arterburn, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Thomas J. Culhane and Patrick R. Guinan, of Erickson &
Sederstrom, P.C., L.L.O., for appellants.
Michael J. Mooney, of Gross & Welch, P.C., L.L.O., for
appellees.
wright, connolly, mccormack, and miller-lerman, JJ.,
and sievers, Judge.
connolly, J.
I. SUMMARY
Prime Realty, Inc. (Prime), acted as general partner for
two limited partnerships, Brook Valley Limited Partnership
(BVLP) and Brook Valley II, LTD (BVII) (collectively the
partnerships). Unbeknownst to the partnerships’ limited part-
ners, Prime took out two loans from Nebraska State Bank of
Omaha (the Bank) and, by deed of trust, secured the loans with
the partnerships’ property. The Bank ultimately sold the col-
lateral and applied the proceeds to the loans. The partnerships
sued the Bank for conversion. The partnerships alleged that the
loans were for a nonpartnership purpose. As such, they alleged
that under the partnership agreements, Prime lacked authority
to offer the partnerships’ property as collateral without the lim-
ited partners’ consent (which Prime did not have). So the Bank
allegedly converted the partnerships’ property when it sold the
collateral and applied the proceeds to the loans.

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	159
Cite as 285 Neb. 157
The primary issues are whether (1) the statute of limita-
tions has run; (2) the Bank converted the partnerships’ prop-
erty and, if so, the amount of damages; (3) the partnerships
ratified the loans; and (4) the district court properly awarded
prejudgment interest. We conclude that the partnerships filed
their complaint within 4 years from the Bank’s sale of the col-
lateralized lots, so their complaint was timely. We conclude
that the Bank converted the partnerships’ property when it
applied the sale proceeds to loans, though the court improp-
erly awarded damages in the full amount of the proceeds
applied to the loans because a portion of the first loan served
a partnership purpose. Also, the partnerships did not ratify the
loans. Finally, we conclude there was a reasonable contro-
versy regarding the amount due and the partnerships’ right to
recover on the first loan, but not the second. So prejudgment
interest was proper only on the amount the Bank applied to
the second loan.
II. BACKGROUND
Midlands Financial Services, Inc., was the holding company
and parent corporation of the Bank. During this litigation,
the Bank merged into Mutual of Omaha Bank. And Omaha
Financial Holdings, Inc., Mutual of Omaha Bank’s holding
company, acquired Midlands Financial Services. So Mutual of
Omaha Bank and Omaha Financial Holdings have stepped into
the shoes of the Bank and Midlands Financial Services in this
litigation. For convenience, we will refer to these entities col-
lectively as “the appellants.”
1. the partnerships
The partnerships’ principal purpose was to develop, own,
and sell real estate in Sarpy County, Nebraska. The limited
partners were not involved in the partnerships’ day-to-day
operations. Instead, Prime, as the general partner, was in
charge of the partnerships’ operations. James McCart was
Prime’s president.
The partnerships’ partnership agreements were essentially
identical and provided broad power to the general partner to
act in the best interests of the respective partnership. But fol-
lowing this broad grant of power, the agreements imposed

160 	285 NEBRASKA REPORTS
limitations on the general partner’s authority. Specifically, the
agreements provided:
Notwithstanding any other provision of this Agreement
to the contrary, the General Partner shall not, without the
prior written consent of all the Limited Partners, . . . do
any of the following:
. . . .
(e) 	Possess 	any 	property; 	or 	assign 	the 	rights 	of
the Partnership in specific property, for other than a
Partnership purpose[.]
(Emphasis supplied.) The record shows that the Bank had cop-
ies of the partnerships’ agreements and that it knew about this
restriction of the general partner’s authority.
2. the loans
In July 2000, Prime applied for and received a loan from the
Bank for $1,000,133. The stated purpose of the July loan was
to consolidate and renew several prior loans to various enti-
ties and advance business capital. As collateral for the loan,
Prime executed a deed of trust for 18 real estate lots owned by
BVII. The Bank received purported signed consent forms from
BVII’s limited partners authorizing the transaction.
But the record shows that each consent form was a fraud and
that the limited partners had not consented to the transaction.
Moreover, the consent forms’ fraudulent nature was readily
apparent—the signature lines were askew, indicating that the
signatures were “cut and paste[d]” onto the form; several of
the forms contained different fonts within the form; and the
signatures were on separate pages from the property descrip-
tion. Furthermore, the signatures were dated months before the
July loan and were not notarized.
Nevertheless, the Bank authorized the July loan and accepted
the deed of trust collateralizing BVII’s lots. The record shows
that the July loan consolidated and renewed several prior
loans from the Bank to Prime ($35,040), McCart ($274,046),
BVII ($250,040), BVLP ($50,030), and Spring Valley XI Joint
Venture ($180,924), another business entity. Additionally, from
the July loan, the Bank provided “new” money in the form

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	161
Cite as 285 Neb. 157
of a check payable to Prime and Heartland Title Services
(Heartland) for $209,960.
In October 2000, the Bank became aware of “suspicious
activity” regarding McCart’s financial dealings, both person-
ally and for businesses he was involved in. The Bank discov-
ered that McCart had been “kiting” checks. In the words of
one of the Bank’s former officers, McCart had been “making
deposits — or drawing checks on one bank while — and mak-
ing deposits from another bank, playing the float and some-
times not having money.” The federal government indicted
McCart for check kiting, to which he eventually pleaded guilty.
As a result of his check kiting, McCart overdrafted on Prime’s
checking account at the Bank for over $2.7 million.
The Bank confronted McCart on how he planned to cover
the overdraft. McCart proposed, and the Bank agreed, that the
Bank “loan” Prime additional money in the exact amount of the
check kite ($2,721,328.47). And as collateral for the October
loan, McCart (for Prime) pledged the same BVII lots from the
July loan. Other property was later added as additional collat-
eral, including two tax lots owned by BVLP. The record shows
that the Bank did not obtain consent from the limited partners
of BVLP or BVII regarding the October loan. The record also
shows that although the October loan was labeled a “loan,” the
plan was always to sell the collateralized properties to repay
the Bank for the $2.7 million overdraft.
Later in 2000 and during 2001, the Bank sold off many
of the collateralized lots and applied the proceeds to Prime’s
loans. As of June 28, 2002, the collective balance remain-
ing on the loans was $144,935.35. The district court made
factual findings regarding the sales of the various lots and
how the Bank applied those proceeds to the loans. The court
apparently made those findings from the Bank’s discov-
ery responses.
3. procedural history
In 2004, the partnerships sued the Bank, alleging conver-
sion, breach of fiduciary duty, failure to comply with com-
mercially reasonable standards, and collusion. Several limited
partners testified regarding their business relationships with

162 	285 NEBRASKA REPORTS
Prime and McCart. They also testified to their lack of knowl-
edge regarding the reasons for the Bank’s loans to Prime and
the collateralization of the partnerships’ property. Several of
the Bank’s former officers testified regarding their knowl-
edge of McCart’s check-kiting scheme, the circumstances
surrounding both loans, and how the Bank processed the
lot sales. The partnerships offered expert testimony demon-
strating that any purported consent forms from the limited
partners were fraudulent and that the Bank had not complied
with commercially reasonable banking standards in process-
ing the loans.
Following trial, the court determined that the partnerships
lacked standing to sue the appellants and dismissed the case.
We reversed the court’s decision on appeal.1 On remand, the
court addressed the merits of the case and first determined
that the partnerships’ sole cause of action was essentially
an action for conversion. After evaluating the evidence, the
court concluded that the Bank had converted the partner-
ships’ property:
The Bank’s actions of encumbering [the partnerships’]
property with Deeds of Trust resulted in a conversion.
The partnerships were permanently deprived of their
interest in the encumbered lots on the dates the lots were
sold and proceeds of the sales were applied to the pay-
off of the July and October loans pursuant to the Deeds
of Trust.
The court jointly awarded the partnerships $2,267,056.86 in
damages and also awarded $2.8 million in prejudgment inter-
est. The appellants moved for a new trial and to alter or amend
the judgment. The court overruled the appellants’ motions.
III. ASSIGNMENTS OF ERROR
The appellants assign, consolidated and restated, that the
court erred in:
(1) concluding that the statute of limitations did not bar the
partnerships’ conversion claim regarding the July loan;
1 See Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 281 Neb. 455, 797
N.W.2d 748 (2011).

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	163
Cite as 285 Neb. 157
(2) concluding that the Bank, through its encumbering
and sale of the partnerships’ lots, had converted the partner-
ships’ property;
(3) concluding that the partnerships had not ratified the July
and October loans;
(4) calculating damages and, specifically, failing to award
damages for the July loan based only on that portion which was
for a nonpartnership purpose, and granting judgment jointly to
the partnerships; and
(5) awarding prejudgment interest.
IV. STANDARD OF REVIEW
[1] In a bench trial of a law action, the trial court’s factual
findings have the effect of a jury verdict, which we will not
disturb on appeal unless clearly wrong. And we do not reweigh
the evidence but consider the judgment in the light most favor-
able to the successful party and resolve evidentiary conflicts in
favor of the successful party.2
[2] We review de novo whether a court should award pre-
judgment interest.3
V. ANALYSIS
1. statute of limitations
Although the appellants devote the first portion of their brief
to discussing whether the deed of trust securing the July loan
was void or voidable, we read their argument as essentially
arguing that the partnerships’ action regarding the July loan
(but not the October loan) was time barred. The appellants note
that the statute of limitations for conversion is 4 years, that the
loan occurred in July 2000, and that the partnerships did not
sue the Bank until August 2004. So the appellants argue the
statute of limitations has run.
2 See Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615,
780 N.W.2d 416 (2010).
3 See, e.g., Blue Valley Co-op v. National Farmers Org., 257 Neb. 751, 600
N.W.2d 786 (1999).

164 	285 NEBRASKA REPORTS
[3] The appellants are correct that under Nebraska law, the
statute of limitations for a conversion claim is 4 years.4 But
we have explained that a conversion is “any distinct act of
dominion wrongfully exerted over another’s personal property
in denial of or inconsistent with his rights therein.”5 In other
words, “conversion lies only for serious interference with pos-
sessory interests in personal property, not real property.”6
The making of the July loan, by itself, did not constitute a
conversion. Instead, and as the court recognized, the alleged
conversion was complete when the Bank wrongfully retained
the proceeds from the sale of each lot.7 The earliest sale of
any lot collateralized under the July loan was December 14,
2000. The partnerships filed their complaint on August 6, 2004,
less than 4 years from that date. The partnerships’ complaint
was timely.
2. conversion
[4] Conversion is “any unauthorized or wrongful act of
dominion exerted over another’s property which deprives the
owner of his property permanently or for an indefinite period
of time.”8 To prove that the Bank’s actions were “unautho-
rized” or “wrongful,” the partnerships had to prove that the
loans were for a nonpartnership purpose. This is because Prime
had authority to pledge the partnerships’ property for a partner-
ship purpose, but did not have authority to do so for a nonpart-
nership purpose without the consent of the limited partners.
The appellants argue that the partnerships failed to prove that
the loans were for a nonpartnership purpose.
4 See, Neb. Rev. Stat. § 25-207 (Reissue 2008); Upah v. Ancona Bros. Co.,
246 Neb. 585, 521 N.W.2d 895 (1994), disapproved in part on other
grounds, Welsch v. Graves, 255 Neb. 62, 582 N.W.2d 312 (1998).
5 Polley v. Shoemaker, 201 Neb. 91, 95, 266 N.W.2d 222, 225 (1978)
(emphasis supplied).
6 Woodring v. Jennings State Bank, 603 F. Supp. 1060, 1065 (D. Neb. 1985).
See, also, 18 Am. Jur. 2d Conversion § 15 (2004).
7 Cf. Zimmerman v. FirsTier Bank, 255 Neb. 410, 585 N.W.2d 445 (1998).
8 Farmland Serv. Co-op v. Southern Hills Ranch, 266 Neb. 382, 392, 665
N.W.2d 641, 648 (2003).

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	165
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(a) The October Loan Was for a
Nonpartnership Purpose
We conclude that whether the loans served a partnership
purpose is a factual finding, which we review for clear error.9
Regarding the October loan, the court determined that the part-
nerships proved that the loan was for a nonpartnership purpose.
The record shows that the sole purpose for the loan was to
cover McCart’s $2.7 million overdraft from his check-kiting
scheme. This obviously had nothing to do with either limited
partnership’s purpose to develop, own, and sell real estate in
Sarpy County. So under the partnership agreements, Prime did
not have authority to pledge the partnerships’ property as col-
lateral for the October loan. And because the Bank’s actions
were similarly unauthorized and wrongful, it converted the
partnerships’ property when it sold the lots and applied the
proceeds to the October loan. The court’s determination was
not clearly wrong.
(b) The July Loan Was for Both Partnership
and Nonpartnership Purposes
The more difficult question is whether the partnerships
proved that the July loan was for a nonpartnership purpose.
The record shows that the purpose of the July loan was to
consolidate and renew prior loans from the Bank to several
entities and to advance business capital. The July loan con-
solidated prior loans to Prime ($35,040), McCart ($274,046),
BVII ($250,040), BVLP ($50,030), and Spring Valley XI Joint
Venture ($180,924). From the July loan, the Bank also issued a
check payable to Prime and Heartland for $209,960 as “new”
money. The court found that “[t]he only benefit provided to
the partnerships was approximately $300,000.00 of debt reduc-
tion by virtue of the July loan. The remainder went to other
entities.” So the court found that the July loan—other than the
portion renewing the partnerships’ prior loans—was for a non-
partnership purpose.
The court’s finding that renewal of the prior BVII loan was
for a partnership purpose was obviously not clearly wrong.
9 See Davenport Ltd. Partnership, supra note 2.

166 	285 NEBRASKA REPORTS
But an issue arises regarding the renewal of the BVLP loan.
The court reasoned that because the renewal of the BVLP loan
benefited BVLP, it served a partnership purpose. But remember
that Prime pledged only BVII property as collateral for the July
loan. Thus, the inquiry should have been whether renewing the
prior BVLP loan served BVII’s purposes. As explained in more
detail later in this opinion, we are remanding this cause with
directions to modify the judgment regarding the July loan. The
purpose of renewing the BVLP loan is a factual finding which
the court must make on remand.
The question remains whether the renewal of the other three
prior loans and the check payable to Prime and Heartland were
also for a partnership purpose. The appellants argue that the
court erred in finding they were not. The appellants argue that
it was the partnerships’ burden to prove a nonpartnership pur-
pose, which they failed to do. In support of this contention, the
appellants point to evidence that the payment to Heartland was
to clear title to the collateralized BVII lots. The appellants also
claim that the other entities benefited by the July loan might
have borrowed money from the Bank to lend to BVII and that
BVII might have been paying off its debts.
The appellants’ latter assertion is speculation. That could
have been the case, but the record does not support such a con-
clusion. There is evidence, however, that the check payable to
Heartland and Prime was to clear title to BVII lots. If that were
the purpose of that portion of the July loan, then that would
qualify as a partnership purpose.
But the court determined that the portion of the July loan
other than the renewal of the partnerships’ prior loans did not
serve a partnership purpose. And we cannot say, based on this
record, that the court was clearly wrong in that determination.
The record shows that the Bank made these loans to various
separate business entities. The court could reasonably have
found, based on the testimony, that the consolidation and
renewal of prior loans for business entities other than BVII was
a nonpartnership purpose.10
10 Cf. Freidco of Wilmington, etc. v. Farmers Bank, etc., 16 B.R. 835 (D.
Del. 1981).

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	167
Cite as 285 Neb. 157
For example, one former officer of the Bank testified in
response to the partnerships’ direct examination as follows:
Q. And the July loan, you just told me, was for pay-
ment of Prime . . . notes, Spring Valley notes, notes of
people other than [BVLP or BVII], didn’t you?
A. I don’t know that I said that, but yes.
. . . .
Q. So that’s not a partnership purpose for [BVLP or
BVII], is it?
A. No.
Q. All right. So you needed —
A. I don’t know. I say “no” too quickly. I don’t know
because some of those other loans, money could have
gone in through Prime to fund deals on [BVII]. We didn’t
look at those.
Although the witness backtracked, the court could have con-
cluded from this testimony that payment to other nonpartner-
ship entities was a nonpartnership purpose.
The partnerships’ expert witness on banking standards also
seemed to suggest that payment to nonpartnership entities was
a nonpartnership purpose:
Q. [W]hat did you notice about the deeds of trust?
From whom did they come with reference to the borrower
on the loans?
A. The deeds of trust — the notes were for Prime . . .
and the real estate — some of the real estate in question
were the [partnerships], which Prime was the general
partner on the first note of two million — I’m sorry,
1,000,133 dated in July of 2000.
That note paid off a [BVII] note of 250,000 and a
[BVLP] note of 50,000, and the rest of the proceeds paid
off personal notes, Prime . . . notes.
(Emphasis supplied.) The court could infer from this testi-
mony that the majority of the July loan served a nonpartner-
ship purpose.
The record also shows that McCart was guilty of kiting
checks and that McCart had an interest in each of the other
entities, in one form or another. In addition to his obvious

168 	285 NEBRASKA REPORTS
interest in loans to himself personally and to Prime, McCart
(through Prime) had an interest in both Spring Valley XI Joint
Venture and Heartland. Although McCart’s suspicious activity
apparently only came to light in October 2000, after the July
loan, the court could have concluded that the July loan money
was used for a nonpartnership purpose—to fund McCart’s
check-kiting scheme. Furthermore, although the records con-
tain testimony from the Bank’s former officers that the “new”
money was meant to pay Heartland to clear the title on the
collateralized BVII lots, that explanation is undermined by
Prime’s being a payee on the check.
In sum, the court determined that the October loan and a
majority of the July loan were for nonpartnership purposes.
Those factual findings are not clearly wrong. So the Bank’s
accepting the partnerships’ property as collateral, followed
by the sale of the property and application of the proceeds to
the loans, was an “unauthorized or wrongful act of dominion
exerted over” the partnerships’ property.11 The Bank’s actions
permanently deprived the partnerships of their property. This
was a conversion.
3. ratification
Nevertheless, the appellants argue that even if its actions
were improper, the limited partners’ subsequent acts ratified
the July and October loans. So the appellants argue that they
cannot be liable for conversion.
[5-9] Ratification is the acceptance of a previously unau-
thorized contract.12 Ratification of an agent’s unauthorized
acts may be made by overt action or inferred from silence and
inaction.13 Further, retention of benefits secured by an agent’s
unauthorized act with knowledge of the source of such benefits
and the means by which they were obtained is a ratification of
11 See Farmland Serv. Co-op, supra note 8, 266 Neb. at 392, 665 N.W.2d at
648.
12 See Stolmeier v. Beck, 232 Neb. 705, 441 N.W.2d 888 (1989).
13 Bank of Valley v. Shunk, 215 Neb. 25, 337 N.W.2d 118 (1983); Kresha v.
Kresha, 211 Neb. 92, 317 N.W.2d 776 (1982).

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	169
Cite as 285 Neb. 157
the agent’s act.14 And whether there has been a ratification is
ultimately and ordinarily a question of fact.15 Because ratifica-
tion is an affirmative defense,16 the burden of proving ratifica-
tion rested on the appellants.17
The appellants argue that the partnerships ratified the July
and October loans through later transactions involving some
of the limited partners. Specifically, the appellants argue that
some of the limited partners borrowed money from the Bank
to buy some of the collateralized lots. When a dispute arose
about the repayment of those loans, those limited partners
entered into settlement agreements with the Bank in March
and April 2004. The agreements released those limited part-
ners’ claims against the Bank arising out of the July and
October loans. The agreements also assigned to the Bank
those limited partners’ rights to any judgment obtained against
the Bank by the partnerships in exchange for the Bank’s dis-
charging those limited partners’ loans. The appellants argue
that because those limited partners entered into the settlement
agreements knowing the circumstances surrounding the July
and October loans, they therefore ratified those loans.
[10] But the court found that the partnerships (through the
limited partners) had not ratified the July and October loans,
and we determine that factual finding is not clearly wrong.
Even assuming that the limited partners who entered into the
settlement agreements had ratified the July and October loans,
the partnerships did not ratify them: “In cases where a part-
ner’s act is not within the scope of the partnership’s business
and is not authorized by the partners, the transaction is still
binding on the partnership if it is ratified by those partners
who would have had the power to authorize the act.”18
14 See D & J Hatchery, Inc. v. Feeders Elevator, Inc., 202 Neb. 69, 274
N.W.2d 138 (1979).
15 See Tedco Development Corp. v. Overland Hills, Inc., 200 Neb. 748, 266
N.W.2d 56 (1978).
16 See Bauermeister v. McReynolds, 253 Neb. 554, 571 N.W.2d 79 (1997).
17 See, e.g., Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998).
18 J. William Callison & Maureen A. Sullivan, Partnership Law and Practice
§ 8:19 at 214 (2012) (emphasis in original) (emphasis supplied).

170 	285 NEBRASKA REPORTS
The appellants argue only that a “majority” of the lim-
ited partners ratified the act. But the partnership agreements
required all of the limited partners’ consent to authorize the
loans. So there could be no ratification based only on the
actions of a majority of the limited partners.19 A contrary
conclusion would lead to the absurd result that a majority of
limited partners could ratify an unauthorized transaction and
render the partnership liable for it when that act could not have
been authorized without the consent of each and every limited
partner. The appellants’ argument has no merit.
4. damages
In calculating damages, the court found that the appellants
had applied $1,064,600.73 to the July loan and $1,202,456.13
to the October loan, for a total of $2,267,056.86 in damages.
The court entered judgment against Mutual of Omaha Bank,
as the Bank’s successor, for the full amount. The court also
entered judgment against Omaha Financial Holdings for the
amount applied to the October loan, because the Bank had
assigned the October loan to Midlands Financial Services,
Omaha Financial Holding’s predecessor.
The record supports the judgment amount for the October
loan, and so the court was not clearly wrong in that determi-
nation. But we remand the cause with directions for the court
to modify the judgment regarding the July loan. First, the
July loan’s renewal of the prior BVII loan served a partner-
ship purpose and so applying sale proceeds for that amount to
the July loan was not a conversion. So the court must reduce
the July loan judgment. Second, as discussed earlier, the
court improperly reasoned that renewing the prior BVLP loan
served a partnership purpose because it benefited BVLP. But
only BVII property served as collateral for the July loan, so
the question is whether renewing the prior BVLP loan served
BVII’s purposes. On remand, the court should make that find-
ing and adjust the July loan judgment if needed. Finally, we
note that the partnerships (as different limited partnerships)
19 See id.

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	171
Cite as 285 Neb. 157
are separate entities.20 The court is ordered to award separate
judgments to the partnerships based on the ownership of the
properties sold to cover the July and October loans.
5. preJudgment interest
The appellants argue that the court erred in awarding pre-
judgment interest because the partnerships’ claims were not
liquidated as required under Neb. Rev. Stat. § 45-103.02
(Reissue 2010). Specifically, the appellants argue that there
was a reasonable controversy over both the partnerships’ right
to recover and the amount of any such recovery. Not surpris-
ingly, the partnerships take the opposite stance and argue that
their claims were liquidated or, alternatively, that prejudg-
ment interest was proper under Neb. Rev. Stat. § 45-104
(Reissue 2010).
The parties dispute the proper legal framework for address-
ing the award of prejudgment interest. The appellants con-
tend that §§ 45-103.02 and 45-104 are not alternate routes to
recover prejudgment interest, but that the reasonable contro-
versy requirement must be met regardless whether the case
is a type enumerated in § 45-104.21 The partnerships, on the
other hand, contend that §§ 45-103.02 and 45-104 are alternate
routes to recover prejudgment interest and that if the case is
a type enumerated in § 45-104, whether there is a reasonable
controversy is irrelevant.22
We see no need to resolve this issue because we conclude
this case is not a type enumerated under § 45-104. So regard-
less which approach is correct, whether prejudgment interest
is proper depends on whether this case presented a reasonable
controversy. Section 45-104 provides, in relevant part:
20 See, Neb. Rev. Stat. §§ 67-294 and 67-409 (Reissue 2009); Richards v.
Leveille, 44 Neb. 38, 62 N.W. 304 (1895).
21 See, Cheloha v. Cheloha, 255 Neb. 32, 582 N.W.2d 291 (1998); Records v.
Christensen, 246 Neb. 912, 524 N.W.2d 757 (1994).
22 See, Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811
N.W.2d 178 (2012); BSB Constr. v. Pinnacle Bank, 278 Neb. 1027, 776
N.W.2d 188 (2009).

172 	285 NEBRASKA REPORTS
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.
(Emphasis supplied.) The parties dispute whether this case
involves “money received to the use of another and retained
without the owner’s consent.”
[11] The meaning of a statute is a question of law,23 and
absent any indication to the contrary, we give statutory lan-
guage its plain and ordinary meaning.24 “[M]oney received to
the use of another” under § 45-104 indicates that the money is
received on behalf of another person,25 such as an agent receiv-
ing money on behalf of his principal.26 That is not the case
here. The Bank received money in its own name and converted
it to its own use. We conclude that this case does not fall under
any of the enumerated categories of § 45-104.
[12] Section 45-103.02(2) provides, in relevant part, that
“interest as provided in section 45-104 shall accrue on the
unpaid balance of liquidated claims from the date the cause of
action arose until the entry of judgment.” Prejudgment interest
may only be recovered under § 45-103.02(2) when the claim is
liquidated.27 A claim is liquidated when there is no reasonable
controversy as to both the amount due and the plaintiff’s right
23 See, e.g., In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
24 See, e.g., In re Interest of Christopher T., 281 Neb. 1008, 801 N.W.2d 243
(2011).
25 See Fitzgerald, supra note 22. See, also, Investors Ins. Corp. v. Dietz,
264 Or. 164, 504 P.2d 742 (1972); Meade v. Churchill, 100 Or. 701, 197
P. 1078 (1921); Coyle v. Brasic, No. 95 C 6788, 1996 U.S. Dist. LEXIS
11129 (N.D. Ill. Aug. 1, 1996) (unpublished memorandum opinion and
order).
26 See Cheloha, supra note 21.
27 See Fitzgerald, supra note 22.

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	173
Cite as 285 Neb. 157
to recover.28 The appellants assert that a reasonable controversy
existed regarding both of these requirements.
Regarding the July loan, we agree that a reasonable contro-
versy existed concerning the amount due and the partnerships’
right to recover. Based on the distribution of the July loan
money, it was unclear whether the July loan served a partner-
ship purpose. The court was required to weigh conflicting evi-
dence and determine whether the July loan served a partnership
purpose. As such, prejudgment interest on the amount applied
to the July loan was improper.
But regarding the October loan, we conclude that there was
no reasonable controversy concerning the amount due and the
partnerships’ right to recover. There was no reasonable dispute
about the amount due—it was a simple matter to determine
how much money the Bank applied to the October loan. There
was also no reasonable dispute about the partnerships’ right
to recover—there was only one purpose for the October loan,
to cover McCart’s check kite, and that was not a partnership
purpose. This was clearly a conversion, and for an undisputed
amount. As such, prejudgment interest at 12 percent per annum
was proper on that amount.
VI. CONCLUSION
We affirm the court’s judgment regarding the October loan.
We also affirm in part the court’s judgment regarding the July
loan, but reverse the judgment in part and remand the cause so
that the court may adjust the July loan judgment in accordance
with this opinion. We direct the court to enter separate judg-
ments as to each plaintiff partnership. Finally, we affirm the
court’s granting of prejudgment interest regarding the October
loan, but reverse the court’s granting of prejudgment interest
regarding the July loan.
affirmed in part, and in part reversed
and remanded with directions.
heavican, C.J., and stephan and cassel, JJ., not participating.
28 See, id.; Cheloha, supra note 21.