Berkshire v. Berkshire

- 477 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
Leslie J. Berkshire et al., on behalf of themselves
and on behalf of Berkshire Partnership,
LP, appellees, v. Richard N. Berkshire,
appellant, and Andrew R. Berkshire
et al., interested parties, appellees.
___ N.W.3d ___
Filed October 9, 2026. 	No. S-24-633.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Motions to Dismiss: Appeal and Error. A district court’s denial of a
motion to dismiss is reviewed de novo.
3. Evidence: Appeal and Error. A trial court has the discretion to deter-
mine the relevancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute an abuse of
that discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.
5. Torts: Equity. A breach of fiduciary duty is a tort claim that lies in
equity.
6. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
7. Equity: Evidence: Appeal and Error. In an appeal of an equity action,
where credible evidence is in conflict on a material question of fact, an
appellate court considers and may give weight to the fact that the trial
court heard and observed the witnesses and their manner of testifying
and accepted one version of the facts rather than another.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:35 AM CDT

- 478 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
8. 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.
9. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
10. Jurisdiction: Judgments: Final Orders: Appeal and Error. To deter-
mine whether it has jurisdiction, an appellate court looks to Neb. Rev.
Stat. §§ 25-1911 (Reissue 2016) and 25-1912 (Cum. Supp. 2024).
Together, these statutes generally prescribe that for an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
judgment or decree rendered or from a final order.
11. Judgments: Final Orders: Words and Phrases. A “judgment rend-
ered,” as required by Neb. Rev. Stat § 25-1911 (Reissue 2016), is a final
determination of the rights of the parties in an action, which is set forth
by the court in a single, signed written document stating all of the relief
granted or denied in an action.
12. Rules of the Supreme Court: Pleadings: Jurisdiction. A party may
challenge the court’s subject matter jurisdiction under Neb. Ct. R. Pldg.
§ 6-1112(b)(1) (rev. 2025) by presenting either a facial challenge or a
factual challenge.
13. ____: ____: ____. In a facial challenge under Neb. Ct. R. Pldg.
§ 6-1112(b)(1) (rev. 2025), the party asserts the allegations of the com-
plaint are insufficient to establish the court’s jurisdiction over the sub-
ject matter of the case. When a facial challenge is presented, the court
will look only to the complaint to determine whether the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction.
14. ____: ____: ____. In a factual challenge under Neb. Ct. R. Pldg.
§ 6-1112(b)(1) (rev. 2025), the party asserts there is no jurisdiction
over the subject matter of the case notwithstanding the allegations of
the complaint. When a factual challenge is presented, the court may
consider and weigh evidence outside of the pleadings to answer the
jurisdictional question.
15. Trial: Evidence: Appeal and Error. To preserve a claimed error in
admission of evidence, a litigant must make a timely objection which
specifies the ground of the objection to the offered evidence.
16. Trial: Evidence. An objection to the admission of evidence is generally
not timely unless it is made at the earliest opportunity after the ground
for the objection becomes apparent.
17. Limitations of Actions: Pleadings: Waiver. The statute of limitations is
an affirmative defense that is waived if the defendant fails to plead it.

- 479 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
18. Partnerships: Records: Accounting. A managing partner having exclu-
sive control of a partnership business not only controls production,
sales, and distribution of products but is responsible for keeping all
records and books of account, and he or she is required to account to the
partnership for any benefit or profit derived from any transaction con-
nected with the formation, operation, or liquidation of the partnership or
from any use by him or her of its property.
19. Corporations: Accounting: Proof. Although the burden is ordinarily
upon the party seeking an accounting to produce evidence to sustain the
accounting, when another person is in control of the books and has man-
aged the business, that other person is in the position of a trustee and
must make a proper accounting.
20. Attorney Fees. Attorney fees and expenses may be recovered in a civil
action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of
attorney fees.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Bradley A. Boyum, of Boyum Law Firm, for appellant.
Brian S. Koerwitz and Eric W. Knutson, of Peetz Koerwitz
& Lafleur, P.C., L.L.O., for appellees Leslie J. Berkshire et al.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Funke, C.J.
I. INTRODUCTION
This appeal raises a number of questions regarding juris-
diction, ownership interests in a partnership, damages for
breach of fiduciary duty, and related matters. For the reasons
set forth below, we conclude that we have jurisdiction over
the appeal and all matters raised in it. We also conclude
that the district court did not err in ruling that Richard N.
Berkshire (Rick) no longer has an ownership interest in
Berkshire Partnership, LP, in requiring Rick to pay damages
for his breach of fiduciary duties while he was the managing

- 480 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
partner of Berkshire Partnership, or in other regards. As such,
we affirm the order of the district court.
II. BACKGROUND
1. Parties and Properties Involved
Rick, Leslie J. Berkshire, and Laurie B. Meyers are all chil-
dren of Joanne Berkshire and Robert H. Berkshire (Bob). Paul
Meyers is Laurie’s husband. The other named parties are the
grandchildren of Joanne and Bob.
Berkshire Partnership was formed in 1988 and converted
into a limited partnership in 2005. Its original general part-
ners were Bob, Rick, Leslie, and Laurie. At least some of the
partnership interests of Bob and Laurie were later transferred,
and limited partners were added. However, this appeal centers
primarily on Rick, Leslie, and Laurie.
Rick was the managing partner of Berkshire Partnership
from its inception, although Bob remained involved in the
partnership’s operations until his death in February 2011.
Before Bob died, the family would meet each year around
Christmas to review financial matters. However, those meet-
ings ceased after Bob’s death, and Leslie and Laurie would
subsequently testify that they did not receive any “annual
updates” or “year-end summaries” for the years between 2010
and 2015. They eventually received information covering the
2010 through 2015 period in 2016, and they received infor-
mation about 2016 and 2017 in 2018. The information they
ultimately received was, in their opinion, “disorganized” and
incomplete. This factor, coupled with certain withdrawals that
Rick made from Joanne’s accounts, over which he then had
power of attorney, contributed to his removal as the managing
partner in 2019. Rick was replaced by Paul, who was added
as a general partner through an assignment and transfer of
membership interest from Laurie, although Rick disputed the
validity of the assignment and his replacement.
Berkshire Partnership owned between 85 and 100 per-
cent of Berkshire Family Building, LLC. Angela Burmeister

- 481 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
also owned an interest in Berkshire Family Building dur-
ing the relevant time period. An operating agreement, dated
December 31, 2009, stated that “[t]he initial [m]anager and
[p]resident” of Berkshire Family Building “shall be [Rick]
(who is [m]anaging [p]artner of . . . Berkshire Partnership).”
Rick retained his role as the “the managing member” or the
“represent[ive of] the managing member” of Berkshire Family
Building until Paul replaced him in February 2019. However,
subsequently, at the trial in the present matter, Rick would
describe himself, Burmeister, and Laurie as “the management
company” of Berkshire Family Building.
As relevant here, Berkshire Family Building owned a com-
mercial 	building 	and 	two 	residential 	buildings 	located 	in
Omaha, Nebraska. The law firm of Berkshire & Burmeister,
P.C., was a tenant of the commercial building. Bob, Rick, and
Laurie were all partners in Berkshire & Burmeister at vari-
ous times.
Rick was also personally involved in other business ventures
that invested in real estate. Those ventures included RBS, LLC;
RBS Management, LLC; and RBS 3, LLC. Bill Rafael was
Rick’s friend and partner in several ventures. Rafael owned and
operated Great Deal, LLC.
In addition, Rick was the trustee of the Robert H. Berkshire
Trust (RHB Trust). As discussed below, on September 27,
2019, Joanne, Leslie, and Laurie filed a complaint against Rick
in the county court for Douglas County, Nebraska, alleging
that he had breached his fiduciary duties as the trustee of the
RHB Trust.
2. Initial Complaint and Motion to Dismiss
Several months later, on January 13, 2020, Leslie, Laurie,
Paul, Joanne, Lauren K. Meyers, and Jacob Meyers (collec-
tively the appellees) filed suit against Rick and four interested
parties in the district court for Douglas County on behalf
of themselves and Berkshire Partnership, alleging that Rick
had breached his fiduciary duties as managing partner of the

- 482 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
partnership. Among other things, the appellees alleged that
Rick had failed to keep and maintain complete records for
the partnership, reduced his interest in the partnership by his
undisclosed redemption of partnership shares for distributions
that he made to himself, commingled partnership funds with
his own funds or the funds of third parties, used partnership
assets for his own pecuniary interests to the partnership’s
detriment, and refused to provide an accounting or finan-
cial records for the partnership and its assets. The appellees
sought an accounting, monetary damages, and attorney fees,
as well as a declaration that Paul is the duly elected manager
of Berkshire Partnership.
On May 15, 2020, Rick filed a motion to dismiss the
present case due to the complaint that Joanne, Leslie, and
Laurie had previously filed in county court regarding the RHB
Trust. Rick claimed that as a result of the earlier filing, the
county court had jurisdiction over the present matter because
Berkshire Partnership was “part of the trust estate during the
time frame” of the accountings requested in the complaint
regarding the trust.
On June 26, 2020, the district court issued an order over-
ruling Rick’s motion to dismiss on the ground that the county
court does not have jurisdiction “over all of the property poten-
tially involved here.” The district court reasoned that “while
some of the [RHB] Trust Estate may be involved in this case,
there is likely other property involved that is not in the [RHB]
Trust Estate.”
As discussed below, Rick would later file other motions to
dismiss on this basis, and he would renew his motion to dis-
miss at the trial.
3. Amended Complaint, Rick’s “Response,”
and His Subsequent “Answer”
On July 27, 2020, with the leave of the court, the appellees
filed an amended complaint adding Rick, in his capacity as
trustee of the RHB Trust, as an interested party. Otherwise, the

- 483 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
amended complaint raised the same allegations and requested
the same relief as the original complaint.
Shortly thereafter, on September 1, 2020, Rick filed a
“Response to Complaint,” in which he admitted or denied the
allegations of “the [c]omplaint,” by which he apparently meant
the original complaint. (The total number of paragraphs in the
response corresponds to that in the original complaint, and not
that in the amended complaint.) The response did not raise any
affirmative defenses.
The appellees then moved for partial summary judgment in
their favor and against Rick on their claim that Paul was the
duly elected managing partner of Berkshire Partnership. The
district court ruled in the appellees’ favor, and Rick does not
assign any error to that ruling on appeal.
Subsequently, on September 30, 2022, apparently without
seeking or obtaining leave from the district court or the con-
sent of the appellees, Rick filed an “[a]nswer to Amended
Complaint and Counterclaim.” In that “[a]nswer,” Rick admit-
ted or denied the allegations in the appellees’ amended com-
plaint but did not allege any affirmative defenses. In his
counterclaim, Rick asked that Laurie’s power of attorney over
Joanne’s affairs be revoked and that Laurie be surcharged for
the “amount of extra [f]ederal [e]state [t]ax” to be paid due
to her “careless actions.” Rick also sought an accounting for
Laurie’s actions while she had power of attorney over Joanne’s
estate, as well as an accounting for Berkshire Partnership since
Paul took over as manager.
4. Discovery
As relevant here, the appellees were ordered to “designate
expert witnesses, if any, including curriculum vitae, and the
subject matter about which each such expert [was] expected
to testify” by December 7, 2022, unless otherwise agreed
upon by the parties. All discovery on such experts, including
depositions, was ordered to be completed by February 7, 2023.
However, subsequently, on February 21, the court granted the

- 484 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
parties’ joint motion to continue deadlines and gave them 100
days from the date of the court’s order to “complete the dis-
covery of expert witnesses, the identification of exhibits and
witnesses, and filing of dispositive pre-trial motions.”
The appellees disclosed their expert, Justin Korth, the tax
director at Lutz and Company, by December 7, 2022. The dis-
closure specifically stated:
Korth will provide testimony concerning the financial
records and record keeping of the Berkshire Partnership.
He will provide testimony concerning his investigation
of the accounting records, bank statements, distribu-
tions, income, expenses, assets, liabilities, and debts for
Berkshire Partnership and how those relate to the respec-
tive interests or liabilities of partners of the Berkshire
Partnership. He is expected to provide testimony con-
cerning distributions or expenditures or other financial
activity that are unrelated to Berkshire Partnership or for
which no adequate explanation is available.
One week later, on December 14, Rick moved to have the
case dismissed in part due to the appellees’ alleged failure to
comply with the Nebraska Court Rules of Discovery in Civil
Cases. However, that motion did not reference any concerns
about discovery as to Korth specifically, and the record on
appeal reflects no hearing or order on the motion. The appel-
lees would subsequently claim in their brief on appeal that
Rick withdrew the motion. But that withdrawal is also lacking
from the record before us.
Korth did not “issue[]” the written report about which he
would subsequently testify at the trial until August 30, 2023.
Korth’s report was shared with Rick’s counsel on the next day.
However, as noted below, that was less than 1 month before
the trial.
5. Evidence and Events at Trial
A bench trial was held from September 26 to 29, 2023.
The resulting record is extensive. Insofar as Rick does not

- 485 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
challenge the district court’s conclusion that he breached his
fiduciary duties, our discussion centers upon the evidence of
Rick’s ownership interest in Berkshire Partnership and the
damages for his breach of his fiduciary duties—both mat-
ters that Rick does contest. We also highlight events at the
trial relevant to the issues raised in this appeal. Additional
information will be discussed later in the opinion as it relates
to our analysis of the parties’ arguments. Our discussion of
the evidence is informed by the parties’ briefs and by our
own de novo review of the record on appeal. Insofar as there
may be additional evidence in the record that supports Rick’s
arguments, but that was not cited by him in his briefs, we
would note that an appellate court ordinarily does not scour
the record in search of facts that might support an appel-
lant’s claim. 1
(a) Berkshire Partnership’s Capital Accounts
The 	evidence 	showed 	that 	the 	partners 	in 	Berkshire
Partnership had “capital accounts” that reflected “how many
units of interest [they] had.” Under the heading “Capital: . . .
Units of Partnership Interest,” the partnership agreement stated
that “[o]n any given date, the value of a [u]nit of [p]artner-
ship interest shall be determined by dividing the total net asset
value of the [p]artnership by the number of all [g]eneral and
[l]imited [p]artnership [u]nits of [i]nterest outstanding.”
There was also evidence regarding Rick’s capital account,
in particular, some of which was expressed in dollars and
not units. Partnership tax returns prepared by a certified
professional accountant showed that Rick’s “[e]nding capi-
tal account” was between -$414,939 and -$758,178 in each
year from 2011 to 2017, and there was evidence that in
September 2017, the accountant told Rick that “distributions
over the years from credit card charges reflected as draws . . .
have created [a] significant negative capital balance.” Korth’s
report similarly showed that Rick had “fully liquidated his
1 State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

- 486 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
share of the partnership assets due to distributions leading
up to and including 2005” and that his capital account was
-$798,659 as of December 31, 2019. As such, Korth said that
Rick was not entitled to any share in the partnership’s equity
growth between 2005 and 2019, even though he had contin-
ued to take distributions from the partnership. Korth also said
that Rick had no ownership left in the partnership and owed
it $798,659.
Rick, in contrast, testified that the tax returns from 2011
to 2017 had all been mistaken and that he corrected the error
when he prepared the partnership’s 2018 tax return. The 2018
partnership tax return showed that Rick had a “[b]eginning
capital account” of $130,147 and an “[e]nding capital account”
of $224,548. Rick testified similarly that Korth was mistaken
in concluding that Rick “[went] negative in 2005,” as well as
in other aspects of Korth’s analysis of the capital accounts.
Instead, Rick pointed to “balance sheets” he had maintained
that showed that as of 2019, he had 76 units of interest in
Berkshire Partnership with a net value of $224,548. Rick also
disputed the accountants’ treating his credit card charges and
other money borrowed from the partnership’s margin account
as distributions. Instead, Rick maintained that no distribution
occurred until the shares of stock that were one of the primary
assets of the partnership were sold to pay off the amounts owed
on the margin account.
(b) Rent and Other Debt Owed by
Berkshire & Burmeister
There was evidence of money owed to Berkshire Family
Building 	by 	Berkshire 	& 	Burmeister 	that 	had 	not 	been
paid. Korth’s report noted $334,869 in unpaid rent between
the 2014 lease year and the 2018 lease year, based on a
lease that Korth said showed that Berkshire & Burmeister
owed Berkshire Family Building $10,000 per month in rent.
However, Korth conceded that there were several versions of
the lease agreement among the documents he reviewed. Korth

- 487 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
also noted a loan of $36,000 from Berkshire Family Building
to Berkshire & Burmeister that he concluded had been for-
given without authorization, because it was removed from
the relevant tax returns without any documentation that it had
been forgiven or paid.
Paul testified similarly that based upon his review of the
general ledger for Berkshire Family Building, Berkshire &
Burmeister paid no rent between June 14, 2016, and February
27, 2018. Paul also noted that there were two versions of the
2015 lease. Both versions were signed by Rick as “[m]anager”
of Berkshire Family Building and “[m]anaging [p]artner” of
Berkshire & Burmeister and called for the law firm to pay
Berkshire Family Building $10,000 per month in rent. However,
one version of the lease gave Berkshire & Burmeister a credit
of $2,000 per month for managing Berkshire Family Building’s
commercial building, while the other version did not. The par-
ties stipulated that Rick presented the version of the lease that
did not include the $2,000 monthly credit to a bank when he
took out a loan of $975,000 on behalf of Berkshire Family
Building in 2015.
Rick again disputed the accuracy of Korth’s report. As
to the 2015 lease, Rick said that in practice, regardless of
what the written documents specified, Berkshire & Burmeister
paid $8,000 a month in rent and managed Berkshire Family
Building’s commercial building. Rick also said that the unpaid
rent in and after 2016 was due to Laurie’s decision to wind
down her law practice. Rick maintained that as of result of
that decision, the firm was “short . . . the amount that Laurie
wasn’t bringing in” and “just didn’t pay the rent.” According
to Rick, he discussed the matter with Burmeister and Laurie
and concluded that it did not make sense to take money out
of Berkshire Partnership to pay Berkshire & Burmeister on
Laurie’s behalf so that the law firm could then pay the rent to
Berkshire Family Building, because it was “just a big circle
of money.”

- 488 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
(c) Cash and ATM Withdrawals From
Berkshire Family Building
The general ledger for Berkshire Family Building showed
$199,793.26 in cash and ATM withdrawals during a 2½-year
period between 2011 and 2014. Paul testified that he had
talked to Rick about these withdrawals and learned that the
withdrawals had been made by an individual whom Rick had
hired to work on the buildings owned by Berkshire Family
Building. According to Paul, Rick said that he gave one of
Berkshire Family Building’s ATM cards to this individual and
that “some” of the ATM withdrawals during that period were
for “gambling at the casinos and things of that nature.”
Rick did not dispute the amount of withdrawals or that
those withdrawals had been made by an individual using an
ATM card that Rick had given to him. However, Rick disputed
that he “did not monitor [that individual’s] actions.” Rick
said that he monitored those actions, but that his monitor-
ing was not “enough to prevent this fraud.” Rick also main-
tained that the individual had performed work on Berkshire
Family Building’s properties. According to Rick, the indi-
vidual “screwed [him],” but “[n]ot a dime of it ever came back
to [him].”
(d) Unreported Transfers From
Berkshire Family Building
Korth’s report identified $1,291,326.97 in “questionable
transfers” from Berkshire Family Building between 2013
and 2017, many of which involved Rick’s “friends and busi-
ness partners.” Leslie and Paul also testified about sev-
eral such transfers. Leslie described a $975,000 loan taken
out on behalf of Berkshire Family Building by Rick that
“coincide[d] with” money transferred out to Rafael, Great
Deal, and RBS “in large amounts.” Paul testified similarly
about multiple transfers, ranging from $15,000 to $95,000
in amount, from Berkshire Family Building to Rafael, Great
Deal, RBS Management, or unrecorded payees. Paul said

- 489 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
there were no documents showing the payees had performed
work or received a loan from Berkshire Family Building,
and the amounts involved exceeded that reasonably owed for
work on the corporation’s commercial and residential proper-
ties. Paul also noted that the items did not “show[] up” in the
corporation’s general ledger, where one would expect to find
the “costs and expenses of a business.” However, Paul con-
ceded that several transfers noted in Korth’s report appeared
to have been valid and were not being questioned by the
appellees. Paul also conceded that it was “possible” the pay-
ees had worked on the properties.
On the other hand, Rick and a person who had assisted
him in managing the properties owned by Berkshire Family
Building said that some transfers reflected work that Rafael
and others performed for which there had been no invoices.
Rick also said that other transfers reflected loans that he made
to Rafael or others which had been repaid, but for which
there was no documentation. Rick and the person who had
assisted him in managing the properties both stated that such
documentation was not necessarily to be expected, and Rick,
in particular, complained that the appellees kept asking ever
more questions, including questions about transactions prior
to Bob’s death.
(e) Withdrawals From Berkshire Partnership
Korth’s report also identified $270,932.95 in “unreported
transfers” from Berkshire Partnership to other persons or
entities, including Rafael and Berkshire & Burmeister. Laurie
testified similarly regarding two such transactions, one of
which involved Rafael, although the appellees stipulated that
two other transactions totaling $8,643.67 were legitimate
expenses. Korth testified that he used the term “unreported”
to mean that there was no “‘explanation for these transfers,
and they do not appear to be for amounts owed by Berkshire
Partnership for business purposes.’” Korth also testified that
he had relied on written documentation in preparing his

- 490 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
report and that he did not ask Rick or the appellees about
specific transactions.
Rick prepared an “[a]nalysis” of Korth’s report. In that
analysis, Rick claimed that “many of the transfers” Korth
noted here were “clearly . . . allocated as reductions to part-
ners.” Rick also testified that the transfer to Berkshire &
Burmeister could “possibly . . . have been paid back or offset
back against something,” because “[he], Laurie, and [Bob]
weren’t bringing in income in the amount that was probably
necessary for [them], as partners of the firm.” Rick testified
similarly regarding another transfer related to a timeshare
that Joanne had extended, which he had “taken off the bal-
ance sheet because it literally had no value.” However, Rick
conceded that there was not a single transaction listed in this
portion of Korth’s report that Rick could not have found on
his own in the records of the financial institution at which
Berkshire Partnership had accounts.
(f) Other Relevant Events at Trial
At the close of the appellees’ case in chief, Rick orally
renewed his motion to dismiss for lack of subject matter
jurisdiction. Rick argued, summarized, that the RHB Trust
was intertwined with the present matter due to the nature of
the appellees’ claims, the evidence presented, and the similar-
ity in the relief sought. Rick also asserted that the matter did
not have to be specifically tied to the RHB Trust insofar as it
was tied to Bob’s estate and that “[t]he intent is to manage the
[RHB] Trust according to the [e]state, according to [Bob’s]
wishes.” Rick claimed that the appellees were straying from
Bob’s wishes “with all of this.” In addition, Rick argued
that the RHB Trust was involved because he had “even[ed]
everything out in different ways, sometimes with the [t]rust.”
The appellees countered that the claims and evidence in this
case were limited to Berkshire Partnership. Rick’s motion
was overruled.

- 491 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
6. Closing Arguments
After the close of evidence, the parties submitted briefs
to the district court setting forth their closing arguments.
As relevant here, Rick again asserted that the district court
lacked subject matter jurisdiction because of the complaint
that Joanne, Leslie, and Laurie had previously filed in the
county court regarding the RHB Trust. Rick also raised issues
with the specificity of the appellees’ pleadings, the statute
of limitations for an action in equity for an accounting, the
district court’s jurisdiction over “matters relating to [f]ederal
[t]ax issues,” and the fact that Berkshire Family Building and
Berkshire & Burmeister were not parties to the lawsuit, among
other things.
Joanne died after briefs were filed and while the matter was
under advisement.
7. January 18, 2024, Order and
Parties’ Subsequent Filings
On January 18, 2024, the district court issued an order that
generally ruled in favor of the appellees and against Rick. The
court began by rejecting Rick’s statute of limitations defense
because the appellees’ complaint “is not barred by the statute
of limitations on its face” and Rick did not “attempt to plead
the statute of limitations as a defense.”
The court then found that Rick had “repeatedly breached his
fiduciary duties” and was liable to Berkshire Partnership for
the following amounts:
• $214,869 in uncollected rent from Berkshire & Burmeister;
• $199,793.26 in improper cash and ATM withdrawals from
Berkshire Family Building;
• $1,014,960.18 in “unreported transfers” from Berkshire Family
Building; and
• $253,645.61 in direct withdrawals from Berkshire Partnership.
The court also found that Rick had a capital account balance
of -$798,659, which he must repay to Berkshire Partnership.

- 492 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
Further, the court found that “[b]y having a negative capi-
tal account, Rick no longer own[ed] any interest” in the
partnership.
However, the court declined the appellees’ request for guid-
ance on “whether and in what amount” alleged gifts that
Joanne made while Rick had power of attorney over her
accounts should be reported to the Internal Revenue Service
(IRS). The court said that any guidance it might provide on that
matter would amount to an advisory opinion because the court
does not have jurisdiction over the matter.
In concluding, the court expressly stated that its order was
“not a final [o]rder for purposes of appeal” and that it retained
jurisdiction of the case to determine whether the appellees
were entitled to attorney fees.
Subsequently, on January 29, 2024, the appellees filed a
motion seeking $189,973.24 in attorney fees and costs. In the
motion, the appellees alleged that Neb. Rev. Stat. § 67-425(1)
(Reissue 2018) allows a partnership to maintain an action
against a partner for breach of a partnership agreement or
for violating a duty to the partnership. The appellees further
alleged that claims under § 67-425(1) have been “deemed to
be derivative in nature, giving rise to fees under” Neb. Rev.
Stat. § 67-291 (Reissue 2018).
Rick disputed that this was a derivative suit. Rick also
argued that the appellees’ request for attorney fees failed to
distinguish between work on successful claims and work on
unsuccessful claims, as he maintained was required under a
prior opinion of this court.
Later still, on May 14, 2024, Rick requested specific find-
ings of fact on 90 separate matters related to the January
18 order.
8. Orders of June 4 and July 26, 2024,
and Rick’s Appeal
The district court filed an order on June 4, 2024, in which
it rejected Rick’s arguments and awarded the appellees the

- 493 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
full amount of attorney fees and costs they had sought. The
June 4 order summarized the findings of the January 18 order
but did not expressly purport to be a final order.
Then, after a hearing, the district court filed an order on
July 26, 2024, overruling Rick’s request for specific findings
of fact. In so doing, the court stated that its January 18 order
“had sufficient and specific findings of fact relevant to the
entry of judgment.” The court also stated that to the extent
Rick’s request for specific findings of fact is “construed as
a motion to alter or amend, that is likewise overruled.” The
court concluded: “Counsel for both parties have confirmed
that there are no other matters for the [c]ourt to decide. This
[o]rder, in addition to the [c]ourt’s [o]rder issued January 18,
2024, and the [c]ourt’s [o]rder on [the appellees’] Motion for
Attorney Fees issued June 4, 2024, are hereby final, appeal-
able orders.”
Rick filed a notice of appeal on August 23, 2024, challeng-
ing the district court’s orders of January 18, June 4, and July
26. While the appeal was pending, Rick filed a motion asking
us to take judicial notice of an order that the county court filed
first on April 24, 2025, and then again on October 24, 2025,
in the proceedings regarding the RHB Trust. Rick claimed the
order showed that “[t]he two cases [are] clear[ly] intertwined
and should have been litigated together.” We deferred our
decision on Rick’s motion for judicial notice until plenary sub-
mission of the appeal.
III. ASSIGNMENTS OF ERROR
Rick assigns, summarized and reordered, that the district
court erred in overruling his motion to dismiss for lack of sub-
ject matter jurisdiction; admitting certain evidence; finding that
he waived the statute of limitations; concluding that he had a
negative capital account balance of $798,659, which he must
repay to Berkshire Partnership; concluding that he has no fur-
ther interest in the partnership; finding him liable to the part-
nership for a total of $1,683,268.05 in damages for his breach

- 494 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
of his fiduciary duties; awarding attorney fees to the appellees;
and overruling his motion for specific findings of fact.
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law. 2
[2] A district court’s denial of a motion to dismiss is
reviewed de novo. 3
[3,4] A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. 4 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition. 5
[5-7] We have previously opined that a breach of fiduciary
duty is a tort claim that lies in equity. 6 On appeal from an
equity action, an appellate court decides factual questions de
novo on the record and, as to questions of both fact and law, is
obligated to reach a conclusion independent of the trial court’s
determination. 7 However, in an appeal of an equity action,
where credible evidence is in conflict on a material question of
fact, an appellate court considers and may give weight to the
fact that the trial court heard and observed the witnesses and
their manner of testifying and accepted one version of the facts
rather than another. 8
2 Nebraska Firearms Owners Assn. v. City of Lincoln, 319 Neb. 723, 24
N.W.3d 891 (2025).
3 Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d
610 (2019).
4 State v. Price, 320 Neb. 1, 26 N.W.3d 70 (2025).
5 Id.
6 Noel v. Pathology Med. Servs., 320 Neb. 92, 26 N.W.3d 196 (2025).
7 Goldie v. McNeil & Co. Builders, 321 Neb. 84, 32 N.W.3d 626 (2026).
8 Id.

- 495 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
[8] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. 9
V. ANALYSIS
1. Jurisdiction
[9] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. 10 In this case, the
parties have raised several jurisdictional issues that we must
address before we reach the merits of the appeal. Two of those
issues pertain to Rick’s counterclaims and the timeliness of his
appeal. Two other issues pertain to the district court’s exercise
of subject matter jurisdiction over the case or specific matters
within the case. Where the lower court lacks subject matter
jurisdiction to adjudicate the merits of a claim, issue, or ques-
tion, we, too, would lack the power to determine the merits
of the claim, issue, or question presented to the lower court. 11
Rick also raises several other jurisdictional issues as second-
ary arguments supporting specific assignments of error, which
we discuss later in the opinion. Ultimately, for the reasons set
forth below, we conclude that we have jurisdiction over this
appeal and all the issues raised in it.
(a) Absence of Ruling on Rick’s Counterclaims
After Rick filed his notice of appeal, an order to show cause
was issued asking the parties to address the fact that the dis-
trict court’s orders of January 18, June 4, and July 26, 2024,
did not dispose of all claims as to all the parties or expressly
direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties under Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016). In response to that order, Rick
9 SID No. 596 v. THG Development, 315 Neb. 926, 2 N.W.3d 602 (2024).
10 Martens v. BB’s Childcare, 321 Neb. 335, 34 N.W.3d 393 (2026).
11 See, e.g., Hauxwell v. Middle Republican NRD, 319 Neb. 1, 21 N.W.3d 34
(2025).

- 496 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
argued that we lacked jurisdiction over the appeal because
the district court never disposed of his counterclaims. The
appellees argued, among other things, that Rick abandoned
his counterclaims because he failed to raise them at the trial
and did not object at the hearing on July 25, when the district
court stated that there was “nothing further pending before
the [c]ourt.”
[10,11] To determine whether it has jurisdiction, an appel-
late court looks to Neb. Rev. Stat. §§ 25-1911 (Reissue 2016)
and 25-1912 (Cum. Supp. 2024). 12 Together, these statutes
generally prescribe that for an appellate court to acquire juris-
diction of an appeal, the party must be appealing from a judg-
ment or decree rendered or from a final order. 13 A “judgment
rendered,” as required by § 25-1911, is a final determination
of the rights of the parties in an action, which is set forth by
the court in a single, signed written document stating all of the
relief granted or denied in an action. 14 Final orders are defined
in Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2024), which cur-
rently recognizes four categories of final orders. 15 In addition,
as noted above, § 25-1315(1) permits a trial court to certify an
otherwise interlocutory order as a final, appealable judgment
under specified circumstances. 16
Rick’s claim that we lack jurisdiction because the district
court did not rule on his counterclaims would appear to be
premised on the view that (1) the district court’s June 4, 2024,
order was not a final order and (2) the July 26 order did not
render a judgment because it did not dispose of his counter-
claims or certify a final judgment pursuant to § 25-1315 as
to any claim. We agree with the first of those premises for
12 WRK v. Wiegert, 320 Neb. 822, 30 N.W.3d 832 (2026).
13 Id.
14 Elbert v. Keating, O’Gara, 319 Neb. 390, 22 N.W.3d 671 (2025).
15 WRK, supra note 12.
16 See id.

- 497 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
the reasons set forth in the following section of this opinion.
However, we disagree with the second premise.
Rick filed his “Response to Complaint” on September 1,
2020. Although not expressly denominated as such, this fil-
ing was an answer. A court looks to the substance of a plead-
ing, and not its caption, to determine its nature, 17 and Rick’s
response was an answer because it admitted or denied the
allegations of the appellees’ original complaint. Then, 2 years
later, Rick essentially filed an amended answer. However,
nothing in the record before us suggests that Rick sought or
obtained leave of the court or the appellees’ consent before
doing so, as required under Neb. Ct. R. Pldg. § 6-1115(a) (rev.
2025) when a pleading is amended outside a 30-day window,
which is not applicable here. In such circumstances, courts in
other jurisdictions have concluded that the amended pleading
is a nullity and without legal effect. 18 We agree with those
courts. As such, we conclude that the failure to resolve Rick’s
counterclaims does not preclude the July 26, 2024, order from
rendering a judgment for the reasons set forth below.
(b) Timeliness of Rick’s Appeal
The appellees, in turn, claim that we lack jurisdiction
because Rick did not timely appeal the June 4, 2024, order.
The appellees argue that the June 4 order was a final order
because it “dispose[d] of the whole merits of the case and [left]
nothing for further consideration of the court.” 19 Relatedly,
17 See, e.g., Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d
101 (2007).
18 See, e.g., U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293 (5th
Cir. 2003); Hoover v. Blue Cross and Blue Shield of Alabama, 855 F.2d
1538 (11th Cir. 1988). See, also, 6 Charles Alan Wright et al., Federal
Practice and Procedure § 1484 at 685 (3d ed. 2010) (“[i]n general, if an
amendment that cannot be made as of right is served without obtaining the
court’s leave or the opposing party’s consent, it is without legal effect and
any new matter it contains will not be considered unless the amendment is
resubmitted for the court’s approval”).
19 Brief for appellees at 5.

- 498 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
the appellees argue that Rick’s request for specific findings
of fact, which was still pending when the June 4 order was
issued, cannot be seen to have tolled the time for filing an
appeal, because that request was not timely filed and because
in the request, Rick did not seek to alter or amend the January
18 order.
While we agree with the appellees that Rick’s motion for
specific findings of fact was untimely, as we explain below, we
do not agree that the June 4, 2024, order was a final order. 20
The appellees assert that the June 4 order was a final order
because it resolved the question of attorney fees, which they
claim was all that was left unresolved in the January 18 order.
However, at the hearing on the appellees’ motion for attorney
fees, the parties agreed to set Rick’s motion for specific find-
ings of fact for a hearing at a later date. As such, they clearly
contemplated that there was something further for the court
to consider. 21
Instead, the July 26, 2024, order rendered a judgment for
purposes of Neb. Rev. Stat § 25-1301(2) (Cum. Supp. 2024). 22
Section 25-1301(2) provides that “[r]endition of a judgment
is the act of the court, or a judge thereof, in signing a single
written document stating all of the relief granted or denied in
an action.” Here, the district court rendered a judgment in the
July 26 order by signing a single written document stating that
(1) the appellees’ claims had been decided, (2) Rick’s request
for specific findings of fact was overruled, and (3) there were
no pending posttrial motions or other matters to be decided.
As such, Rick’s appeal was timely because it was filed within
30 days of the date when the judgment was rendered. 23
20 See, e.g., WRK, supra note 12.
21 See, e.g., In re Estate of Scaletta, 312 Neb. 953, 981 N.W.2d 568 (2022)
(to be final, order must dispose of whole merits of case; when no further
action of court is required to dispose of pending cause, order is final).
22 See, e.g., Elbert, supra note 14.
23 See § 25-1912(1) (party in civil matter must file notice of appeal within 30
days of entry of judgment, decree, or final order being challenged).

- 499 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
We need not address the merits of Rick’s claim that his
request for specific findings of fact amounted to a motion for
a new trial and tolled the time for him to appeal. An appel-
late court is not obligated to engage in an analysis that is not
needed to adjudicate the controversy before it. 24
(c) District Court’s Jurisdiction Over Case
In his first assignment of error, Rick also raises a jurisdic-
tional issue in that he claims that the district court erred in
overruling his motion to dismiss for lack of subject matter
jurisdiction. As noted above, if that claim were correct, we,
too, would lack jurisdiction to reach the merits of this appeal.
Rick argues, summarized, that under the precedents of
this court regarding the jurisdiction of the county courts and
the district courts over estates and trusts cited by him, 25 the
county court had jurisdiction over this matter. Rick asserts
that the county court “first acquired subject matter jurisdic-
tion over all the entities/assets involved in this matter” when
a petition was filed in 2012 to determine the inheritance tax
on Bob’s estate. 26 Rick then asserts that the county court “re-
acquired” subject matter jurisdiction in 2019 when Joanne,
Leslie, and Laurie filed their complaint seeking an accounting
of the RHB Trust. 27 The appellees disagree, claiming that the
district court properly exercised jurisdiction because this case
concerned Berkshire Partnership, and not the RHB Trust or
Bob’s estate.
[12-14] As we have previously explained, a party may chal-
lenge the court’s subject matter jurisdiction under Neb. Ct. R.
24 See, e.g., Schmuecker v. Lancaster County, 321 Neb. 623, 36 N.W.3d 185
(2026).
25 See, Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007);
Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003); In re
Estate of Chaney, 232 Neb. 121, 439 N.W.2d 764 (1989); In re Estate of
Kentopp. Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).
26 Brief for appellant at 16.
27 Id.

- 500 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
Pldg. § 6-1112(b)(1) (rev. 2025) by presenting either a facial
challenge or a factual challenge. 28 In a facial challenge, the
party asserts the allegations of the complaint are insufficient to
establish the court’s jurisdiction over the subject matter of the
case. 29 When a facial challenge is presented, the court will look
only to the complaint to determine whether the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction. 30 In a
factual challenge, the party asserts there is no jurisdiction over
the subject matter of the case notwithstanding the allegations
of the complaint. 31 When a factual challenge is presented, the
court may consider and weigh evidence outside of the plead-
ings to answer the jurisdictional question. 32
In this case, the record before us on appeal makes it dif-
ficult to determine whether Rick’s challenge was a facial or
factual one. Rick references one specific ruling by the dis-
trict court when arguing this assignment of error in his brief
on appeal. However, the record reflects several other written
or oral motions to dismiss based, at least in part, on subject
matter jurisdiction. The record does not reflect any hearings
that might have been held in connection with several of the
motions and, thus, does not show whether Rick offered any
evidence in connection with those motions. As the appellant, it
was incumbent upon Rick to supply a record that supports his
appeal, 33 but even assuming we were to consider all of Rick’s
motions to dismiss in the manner most favorable to him, as
factual challenges, we see no error by the district court.
Rick is correct that the appellees amended their complaint
to name him in his capacity as trustee of the RHB Trust as
an interested party. However, the amended complaint makes
28 Bleich v. Bleich, 312 Neb. 962, 981 N.W.2d 801 (2022).
29 Id.
30 Id.
31 Id.
32 Id.
33 See, e.g., State v. Mielak, 321 Neb. 542, 35 N.W.3d 798 (2026).

- 501 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
clear that this was done to address the possibility that the RHB
Trust “holds an interest in the [p]artnership.”
The remainder of the evidence to which Rick points in his
brief on appeal similarly fails to support his assertion that this
case “primarily concerns trust administration.” 34 The “trust
account bank statements” 35 purportedly in exhibit 80 were
not offered or admitted into evidence by the parties (at least
not under that exhibit number). The “Robert H. Berkshire
Trust” agreement in exhibit 136 was offered into evidence by
Rick and admitted over the appellees’ objections in connection
with Rick’s testimony that he acted in accordance with Bob’s
wishes to “minimize[] the total income and estate tax burden”
on his family. And the portion of the transcript cited by Rick
(“T75”) contains nothing to show that the “entities involved in
this matter were formed and were part of [Bob’s] estate plan”
and that those “entities and assets were listed” on the inventory
of Bob’s estate, 36 as Rick claims.
Rick’s reply brief also points to the order that the county
court filed first on April 24, 2025, and then on October 24,
in the proceedings regarding the RHB Trust, as evidence
that the county court had jurisdiction. Rick claims this order
“demonstrate[es] the intrinsic link” between this matter and
“trust administration” 37 and effectively changed his capital
account. In its order, the county court said that one-third of
a $1,950,191.16 payment that Rick, as the trustee, made to
pay off a loan that Berkshire Family Building owed to a third
party was made without authority and “should be assessed”
against Rick. Rick takes this to mean he was “credit[ed]”
with $650,000 toward his capital account.
We decline Rick’s request to take judicial notice of this
order. As a general matter, we agree with courts in other
34 Brief for appellant at 20.
35 Id.
36 Id.
37 Reply brief for appellant at 6.

- 502 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
jurisdictions that have expressed concerns about taking judi-
cial notice on appeal of events that occurred after the judg-
ment was rendered below. 38 It is difficult to maintain that
the trial court erred in reaching a decision based on evidence
that was never presented to it. 39 We also do not understand
the order in question to show that this matter involves the
RHB Trust or Bob’s estate. Nor would the order have any
relevant effect upon Rick’s capital account balance insofar as
the loan and payment apparently occurred after 2005, and for
the reasons set forth below, we agree with the district court’s
conclusion that by 2005, Rick no longer owned an interest in
Berkshire Partnership. 40
Finally, as to Rick’s argument that the district court erred
when it exercised jurisdiction without determining whether it
had jurisdiction over specific assets and properties, any error
here is immaterial insofar as we review de novo the denial
of a motion to dismiss. The same is true of Rick’s argument
that there was no legal or factual support for the district
court’s claim that the county court may lack jurisdiction over
some assets.
(d) District Court’s Jurisdiction to Rule on Timing
of Distributions From Capital Accounts
In arguing another of his assignments of error, Rick claims
that the district court “lacked jurisdiction to specify the tim-
ing of the partnership distribution secured by the partnership
margin account for accounting and tax purposes.” 41 Rick’s
38 See, e.g., State v. Vetter, 934 N.W.2d 543 (N.D. 2019); State v. Rivas, 233
Conn. App. 506, 340 A.3d 1118 (2025); TEPOA v. McGovern, 239 Ariz.
52, 366 P.3d 111 (Ariz. App. 2016).
39 See, e.g., 29 Am. Jur. 2d Evidence § 45 (2019) (recognizing that taking
judicial notice on appeal may undermine trial court’s factfinding authority).
40 See, e.g., State ex rel. Douglas Cty. Sch. Dist. No. 66 v. Ewing, 319 Neb.
663, 24 N.W.3d 861 (2025) (declining to take judicial notice on appeal
where case can be resolved without doing so).
41 Brief for appellant at 34.

- 503 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
argument here is not a model of clarity. As we understand
it, his argument appears to be that in determining his capital
account balance, the district court made determinations about
when distributions occurred that, insofar as they implicate
“federal tax liabilities” or “accounting treatments under federal
tax law,” are within the exclusive jurisdiction of the IRS and
the federal courts. 42 The appellees argue that the district court
has the power to determine the “ownership interests of general
partners in a partnership,” 43 as it did here.
We agree with the appellees that Rick’s argument, to the
extent that we understand it, is without merit. In arguing oth-
erwise, Rick relies on the opinion of the Nebraska Court of
Appeals in In re Estate of Tizzard. 44 In In re Estate of Tizzard,
the Court of Appeals found that the trial court had erred, in
relevant part, in ordering the personal representative of the
estate to file an amended federal tax form containing specific
information. 45 The Court of Appeals reasoned that because the
pronouncements of a state court on the nature of a payment
are not binding on the IRS’ treatment of money under federal
law, the trial court’s order was merely advisory and did not
resolve the issue that concerned the appellee. 46 As such, the
Court of Appeals concluded that the trial court should not
have attempted to exercise its judicial power because there
was no justiciable issue. 47
We do not view the order here as being like that in In re
Estate of Tizzard because the order here does not direct that
specific information be entered on a federal tax form. The
order here does not purport to directly “determine [the] fed-
eral taxability” of anything, unlike the order in In re Estate
42 Id. at 35.
43 Brief for appellees at 28.
44 In re Estate of Tizzard, 14 Neb. App. 326, 708 N.W.2d 277 (2005).
45 Id.
46 Id.
47 Id.

- 504 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
of Tizzard. 48 The order here may have tax implications, but
those implications are the result of decisions about Rick’s
“legal interests” in the partnership that In Re Estate of Tizzard
and the cases cited therein expressly recognize as matters of
state law. 49
We take a similar view of Rick’s apparent argument that
the district court did not have jurisdiction to “treat margin
borrowing as distributions in contravention of the IRS [r]ules
and [r]egulations because this is a federal tax issue.” 50 This
argument appears to be related to Rick’s claim that fed-
eral law preempts the district court from “[d]ictating [t]ax
[c]onsequences.” 51 However, even assuming that federal law
did control here, federal preemption is not inherently jurisdic-
tional. 52 There have been cases where substantive issues gov-
erned by federal law were litigated in Nebraska courts. 53
Rick’s remaining arguments about this assignment of error
are not jurisdictional but instead raise alleged issues with the
evidence and the district court’s reasoning. Specifically, Rick
argues that Korth failed to address alternative tax treatments,
among other things; that the appellees did not present the
48 See id. at 333, 708 N.W.2d at 284.
49 See id. at 334, 708 N.W.2d at 284 (“United States v. Mitchell, 403 U.S.
190, 91 S. Ct. 1763, 29 L. Ed. 2d 406 (1971) (state law creates legal
interests, but federal statute determines when and how they shall be taxed);
. . . Pahl v. C.I.R., 150 F.3d 1124 (9th Cir. 1998) (holding that courts look
to federal law to determine what interest creates tax liability, but look to
state law to determine whether taxpayer has requisite interest)”).
50 Brief for appellant at 11.
51 Id. at 37.
52 See, e.g., Southwest Airlines Pilots v. Boeing Co., 704 S.W.3d 832 (Tex.
App. 2022).
53 See, e.g., McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d
321 (2008) (federal law governs substantive issues in Federal Employers’
Liability Act claims litigated in state courts pursuant to concurrent
jurisdiction); In re Estate of Myers, 256 Neb. 817, 594 N.W.2d 563 (1999)
(fair market value is present value as determined under Internal Revenue
Code and its applicable regulations).

- 505 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
evidence necessary to accurately calculate his capital account;
and that his purported repayment of the margin loans after the
distribution must be considered. Those arguments are without
merit for the reasons set forth below.
2. Korth’s Report Vis-a-Vis
Appellees’ Pleadings
Rick claims that the district court “erred in allowing [the
appellees] to enter evidence supporting issues that were not
specifically pled.” 54 Rick’s argument here concerns Korth’s
report, which Rick claims raised issues, particularly regarding
his capital accounts and pre-2011 transactions, that were not
“specifically pled” 55 and that he did not become aware of until
shortly before trial. As such, Rick argues that he was deprived
of the opportunity to defend himself. Rick also complains that
Korth’s report “contained little to no reference to statutes,
case law, tax regulations or any other principle” upon which
Korth relied and that there was no “supporting documentation”
that would have allowed him to attempt to reproduce Korth’s
results. 56 The appellees argue that Rick’s sole objection to
Korth’s report at that trial was on hearsay grounds and that
Rick waived the objection by cross-examining Korth about
the report. The appellees also claim that Rick was aware of
the relevant issues before receiving Korth’s report due to their
complaint and their discovery requests.
[15,16] Rick’s assignment of error here concerns the admis-
sion of evidence, specifically Korth’s report. However, to
preserve a claimed error in admission of evidence, a litigant
must make a timely objection which specifies the ground of
the objection to the offered evidence. 57 An objection to the
admission of evidence is generally not timely unless it is made
54 Brief for appellant at 23.
55 Id.
56 Id. at 24.
57 Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).

- 506 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
at the earliest opportunity after the ground for the objection
becomes apparent. 58 In this case, Rick did not timely object to
Korth’s report on any ground related to the specificity of the
appellees’ complaint. Instead, counsel for Rick said only: “I
guess right now the main objection is hearsay.” As such, Rick
failed to preserve this claimed error.
However, because the issue recurs in connection with
Rick’s other assignments of error, we note that in arguing that
his capital accounts, pre-2011 transactions, and other matters
were not “specifically pled” by the appellees, 59 Rick relies
on a statute that was repealed in 2002 60 and two opinions
concerned with the pre-2002 statutes. 61 Rick also argues that
Neb. Ct. R. Pldg. § 6-1108 (rev. 2025) “stresses the necessity
for specificity.” 62 Rick is correct that § 6-1108 does require
a pleading that states a claim for relief to contain specific
information as to special damages and interest. Otherwise,
§ 6-1108(a) requires only that a claim for relief contain, in
relevant part, “a short and plain statement of the claim show-
ing that the pleader is entitled to relief” and a demand for the
relief sought.
Under that standard, the appellees’ amended complaint gave
Rick fair notice of the claims asserted against him, including
the period covered. 63 Although the complaint did not specifi-
cally use the phrase “capital account,” it alleged that Rick had
reduced his interest in Berkshire Partnership “due to his prior,
58 In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).
59 Brief for appellant at 23.
60 See 2002 Neb. Laws, L.B. 876, § 92 (repealing Neb. Rev. Stat. § 25-804
(Reissue 1995)).
61 See, Kubik v. Kubik, 268 Neb. 337, 683 N.W.2d 330 (2004); Christianson
v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993).
62 Brief for appellant at 23.
63 See, e.g., Ramaekers v. Creighton University, 320 Neb. 478, 28 N.W.3d
57 (2025); Evans v. Freedom Healthcare, 311 Neb. 336, 972 N.W.2d 75
(2022); Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022).

- 507 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
undisclosed redemption of partnership shares for distribu-
tions that he made to himself.” The complaint also raised a
claim regarding a purported $1 million loan that Berkshire
Partnership made to Berkshire Family Building during the
construction of the commercial building, which occurred prior
to 2011. The complaint’s allegations regarding Rick’s commin-
gling of funds, use of partnership assets for his own pecuniary
interests, self-dealing, and failure to account to the partnership
for certain profits, as well as the request for an accounting,
similarly sufficed to make him aware of his potential liability
for uncollected rent and financial misappropriation.
Rick’s remaining arguments about the admission of Korth’s
report, had they been preserved for appeal, would go primar-
ily to the weight of the evidence and not its admissibility, as
discussed below.
3. Waiver of Statute of Limitations
Rick claims that the district court erred in concluding that
he waived the statute of limitations by failing to raise it in his
answer. Rick argues that insofar as the appellees’ complaint
did not adequately notify him of the issues with the pre-2016
transactions raised in Korth’s report, he properly and timely
raised the statute of limitations “on August 31, 2023.” 64 Rick
also argues that even if the statute of limitations were waived,
“claims arising from transactions before 2016 should have
been dismissed as time-barred.” 65 The appellees counter that
the district court properly concluded that Rick waived the
statute of limitations because he did not raise it in his answer,
among other things.
[17] The statute of limitations is an affirmative defense
that is waived if the defendant fails to plead it. 66 Generally,
this means that the statute of limitations is waived if it is not
64 Brief for appellant at 27.
65 Id.
66 Schuemann v. Timperley, 314 Neb. 298, 989 N.W.2d 921 (2023).

- 508 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
pled in a preanswer motion or in the answer. 67 However, there
are certain exceptions to this general rule. For example, an
answer could be amended under § 6-1115(a)(2) to raise the
statute of limitations, 68 or the statute of limitations could be
tried with the express or implied consent of the parties. 69
Given the record before us, we see no error in the district
court’s conclusion that Rick waived the statute of limitations.
As both the district court and the appellees note, Rick did
not raise the statute of limitations in either his “Response
to Complaint” or his “Answer to Amended Complaint and
Counterclaim” (which is, in any event, a nullity for the rea-
sons set forth above). There is nothing in the record before
us to show that he sought leave of the court or the appellees’
consent to amend his answer under § 6-1115(a)(2). In fact, the
record before us contains no indication of the filing or hearing
on August 31, 2023, in which Rick claims he raised the statute
of limitations.
There was a motion to continue filed on September 6,
2023, in which Rick sought an opportunity to depose Korth.
However, that motion did not mention the statute of limita-
tions, and if there was a hearing on the motion, it is not part
of the record on appeal. Moreover, at the trial, when coun-
sel for the appellees stated that the transactions in question
occurred between 2011 and 2019, counsel for Rick said that
it was “fine” “if you want to keep them within that range.”
Counsel for Rick did then complain about Korth’s report’s
including transactions prior to 2011. However, both before
67 See, e.g., John P. Lenich, Nebraska Civil Procedure § 12:13 (2026)
(collecting cases).
68 See id.
69 See, e.g., Khaitov v. Greater Omaha Packing Co., 319 Neb. 932, 25
N.W.3d 739 (2025) (recognizing affirmative defense may be tried by
express or implied consent of parties). See, also, § 6-1115(b)(2) (“[w]hen
an issue not raised by the pleadings is tried by the parties’ express or
implied consent, it must be treated in all respects as if raised in the
pleadings”).

- 509 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
and after voicing that complaint, counsel for Rick adduced
evidence, including from Rick himself, regarding transactions
that occurred more than 4 years before the complaint was filed
and even prior to Bob’s death in 2011. As such, we view Rick
to have waived the statute of limitations. 70
In arguing otherwise, Rick attempts to rely upon an opin-
ion of this court wherein we recognized that a plaintiff could
estop a defendant from claiming the statute of limitations by
asserting the defendant had fraudulently concealed pertinent
information. 71 Rick seems to suggest that, by analogy, he
should be seen to have timely asserted the statute of limita-
tions because the appellees “took affirmative steps to conceal
the true nature of [the] lawsuit until they delivered” Korth’s
report. 72 However, that argument ignores the fact that fraud
must be specifically pled and that in the case upon which Rick
relies, the plaintiff’s complaint alleged that the defendants had
fraudulently concealed material facts. 73 There was nothing
similar in the pleadings here.
Rick also argues (1) that he was prevented from raising
the statute of limitations due to the appellees’ failure to spe-
cifically plead their claims, (2) that the appellees failed to
conduct discovery fairly to the extent that they did not make
Korth’s report available to Rick until shortly before the trial,
and (3) that even if the statute of limitations was waived,
any claims regarding transactions prior to 2016 were time
barred. The first of those arguments is without merit for the
reasons set forth above, while the second would not require
the exclusion of Korth’s report or testimony for the reasons
stated below. As to the third argument regarding the purported
time bar, Korth cites no authority to support the view that the
court could find certain of the appellees’ claims time barred
70 Cf. Khaitov, supra note 69.
71 Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005).
72 Brief for appellant at 27.
73 Andres, supra note 71.

- 510 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
even if Rick waived the statute of limitations. Rick’s argu-
ment here may be tied to his view that the statute of limita-
tions is jurisdictional. However, the failure to comply with
a statute of limitations is generally not an issue of subject
matter jurisdiction, 74 and with the exception of res judicata or
claim preclusion, “a court cannot raise an unpled affirmative
defense sua sponte.” 75
4. Other Issues With Korth’s
Report and Testimony
Rick claims that the district court erred in admitting tes-
timony and evidence that was not timely submitted by the
appellees and that “did not relate to the specific claims of the
complaint.” 76 This argument again concerns Korth’s report,
as well as Korth’s testimony at the trial, both of which Rick
claims should not have been admitted for these and other rea-
sons. The appellees argue that Korth’s report and his testimony
were properly admitted.
To the extent that Rick’s argument here concerns the
admission of evidence, he failed to preserve the argument for
the reasons set forth above. As noted, Rick’s sole objection
to the admission of Korth’s report was on hearsay grounds.
Rick also objected to Korth’s testimony several times, but
none of those objections were based on the grounds that Rick
raises in his brief on appeal. To be sure, during his cross-
examination of Korth and, later, during Rick’s case in chief,
both counsel for Rick and Rick himself did complain about
when they received Korth’s report and its inclusion of trans-
actions that occurred more than 4 years before the complaint
was filed or before Bob’s death. However, such complaints
are no substitute for counsel’s objecting or moving to strike
specific testimony.
74 Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).
75 Lenich, supra note 67, § 12:13 at 679.
76 Brief for appellant at 28.

- 511 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
The outcome would be the same even if Rick’s claims had
been properly preserved. We have already explained the issues
with Rick’s argument that the appellees did not specifically
plead the capital accounts and other matters covered in Korth’s
report and testimony. We take a similar view of Rick’s claim
that the matters addressed in Korth’s reports and testimony
were not “[p]roperly . . . [a]ddressed in [d]iscovery.” 77 As the
appellees note, there were multiple discovery requests con-
cerning the general partners’ capital accounts, the credit card
charges incurred against the margin account over the past 10
years, rent paid by Berkshire & Burmeister, specific transac-
tions dating back to at least 2011, and other matters.
Rick’s argument that Korth’s report and testimony were
inadmissible because of various issues with them is equally
unavailing. Rick is correct that in other cases, where the
parties have properly raised the issue, evidence has been
excluded because it was not timely disclosed or for other rea-
sons. 78 However, Rick points to nothing in the record to show
that any of the purported issues with Korth’s report and tes-
timony were properly raised with the district court except the
joint motion to continue, which is discussed below. Both Rick
and his counsel complained of the late disclosure of Korth’s
report and the inclusion of matters purportedly outside the
statute of limitations at the trial, but such complaints are no
substitute for a motion in limine, a motion to strike, a motion
to sanction, or another similar motion. As such, the various
issues that Rick raises with Korth’s report and testimony go
to their credibility. The district court expressly found Korth
77 Brief for appellant at 32.
78 See, e.g., Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d
198 (2020); McNeel v. Union Pacific RR. Co., supra note 53; Smith v.
Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005);
Kinney v. H.P. Smith Ford, 266 Neb. 591, 667 N.W.2d 529 (2003); Paulk
v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001); Norquay
v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987). But see
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).

- 512 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
to be credible and Rick to be “largely not credible.” Under
the standard of review noted above, we give deference to
that determination.
The parties did file a joint motion to continue after receiv-
ing Korth’s report, in which it was noted that Korth’s report
had just been issued and that Rick wished to depose Korth.
However, insofar as the district court overruled that motion
without a hearing, we cannot say it abused its discretion in so
doing. Rick does not point to any request for a hearing on this
motion that he made. The motion was filed 20 days before
trial. Korth and the subject of his testimony had already
been disclosed to Rick. And there is nothing in the record on
appeal to suggest that Rick sought to depose Korth prior to
the issuance of his report. 79
Rick also asserts several times in his brief on appeal that
the late disclosure of Korth’s report violated his due process
rights. However, beyond a couple of citations to cases that
generally mention fairness, 80 Rick leaves us to “speculate
about the reasoning” behind this claim. 81 We decline to do so.
As we have previously explained, an appellant must provide
both “argument and authority in support of an advocated posi-
tion,” or else “speculation is unavoidable.” 82
Finally, as to Rick’s argument that Korth had a conflict of
interest because Korth worked with Paul at Lutz & Company,
Rick cites no case law to show that this was a conflict, and
there is nothing in the record before us to suggest that he
filed a motion to disqualify Korth. Evidence that Paul and
Korth worked at the same firm was adduced at the trial,
79 See, e.g., Eddy, supra note 78 (although continuance is ordinarily one
of proper methods for dealing with claim that there has been failure to
disclose in timely manner, plaintiff did not show good cause to continue
trial, given defendant’s answer and discovery requests).
80 See, e.g., Eddy, supra note 78; Paulk, supra note 78.
81 Bohaty v. Briard, 219 Neb. 42, 46, 361 N.W.2d 502, 505 (1985).
82 Id.

- 513 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
with the apparent implication that this was cause for con-
cern. However, such evidence is no substitute for a motion
to disqualify.
5. Specific Rulings Regarding
Rick’s Capital Account
Rick claims that the district court erred in ruling that the
value of his capital account was -$798,659, that he must
repay that amount to Berkshire Partnership, and that by hav-
ing a negative capital account, he no longer had an ownership
interest in Berkshire Partnership. Rick primarily argues, sum-
marized, that the district court should have relied on the evi-
dence he presented, which showed that he had “positive units
of interest” until 2019, 83 and not Korth’s report, which Rick
claims had multiple defects. The appellees argue that there
was no error here and that the district court simply found
Korth’s analysis of Berkshire Partnership’s capital accounts
to be “more accurate and more credible” than the evidence
presented by Rick. 84
As noted earlier in the opinion, there was conflicting evi-
dence at the trial regarding Rick’s capital account. The appel-
lees presented documents prepared by two different certified
professional accountants that showed Rick had long had a neg-
ative capital account balance. They also presented evidence
about the effect that having a negative capital balance had on
a general partner’s ownership interests under the partnership
agreement. Rick, in turn, presented evidence showing that as
of 2019, he had 76 units of interest in Berkshire Partnership,
with a net value of $224,548. Rick also presented evidence
that his borrowing against the margin account was not a dis-
tribution. When the evidence is in conflict, as was the case
here, we give deference to the district court’s determinations
regarding the credibility of the witnesses. The district court
83 Brief for appellant at 40.
84 Brief for appellees at 33.

- 514 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
found Korth’s analysis to be “the most accurate description”
it had of the general partners’ capital accounts and, as such,
credible. Rick, in contrast, was found not to be credible. We
also note that even one of Rick’s own exhibits showed that he
had negative units of ownership at various dates.
Rick also argues that the court’s ruling is “contrary to the
[p]artnership [a]greement.” 85 However, outside of a brief ref-
erence to the provisions of the partnership agreement regard-
ing units of ownership, he does not explain his reasoning
here. While we review the record de novo, such review does
not extend to speculating about arguments that a party fails
to make. 86
Rick’s remaining arguments primarily concern the statute
of limitations, the late disclosure of Korth’s report, and other
issues with Korth’s report. Those arguments are without merit
for the reasons set forth above.
Rick also asserts that the appellees failed to provide the
“evidence necessary to make accurate calculations of [c]apital
[a]ccounts.” 87 That argument is based on a mistaken view of
who had the burden of proof as to that issue, as discussed below.
6. Uncollected Rent From
Berkshire & Burmeister
Rick claims that the district court erred in ruling that he
was liable to Berkshire Partnership for $214,869 in unpaid
rent owed to Berkshire Family Building by Berkshire &
Burmeister. Rick admits that “rent was not paid.” 88 However,
he argues that he should not have been required to pay dam-
ages in an amount equivalent to the unpaid rent, primarily
because Laurie’s “actions and decisions” were the reason the
85 Brief for appellant at 39.
86 See, e.g., Bohaty, supra note 81.
87 Brief for appellant at 17.
88 Id. at 42.

- 515 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
rent was not paid, 89 and that her “unclean hands” should pre-
clude her recovering damages here. 90 Rick also argues that he
was not the sole manager of either Berkshire Family Building
or Berkshire & Burmeister and that neither of those entities is
a party to this lawsuit. The appellees argue that the evidence
supported awarding Berkshire Partnership $214,869 in dam-
ages for the unpaid rent.
We see no error here. Under Nebraska law, a partner owes
the partnership and the other partners duties of loyalty and care
and must discharge his or her duties to the partnership and the
other partners under the Uniform Partnership Act of 1998 and
the partnership agreement consistently with the obligation of
good faith and fair dealing. 91 The “fiduciary duties incident to
the partnership relation” are “even more acute” for managing
partners, 92 as the district court noted. As relevant here, failure
to collect rent has been recognized by this and other courts
to constitute a breach of fiduciary duty, particularly where a
partner exercises control over a property without providing any
relevant information about it. 93
That was essentially the situation here. Rick admits he
failed to collect rent, and he provided Leslie and Laurie
with only late and incomplete information about Berkshire
Partnership and Berkshire Family Building, as noted above and
explained below. Rick does argue, in essence, that he did not
have sole control of Berkshire Family Building or Berkshire
& Burmeister. Rick testified to that effect at the trial, stating
89 Id.
90 Id. at 44.
91 Neb. Rev. Stat. § 67-424(4) (Reissue 2018).
92 59A Am. Jur. 2d Partnership § 278 at 395 (2015).
93 See, e.g., In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018);
Patten v. Torosian, No. F087603, 2025 WL 1273514 (Cal. App. May 1,
2025) (unpublished opinion); Matter of Estate of Robinson, No. 80110-4-I,
2020 WL 4284707 (Wash. App. July 27, 2020) (unpublished opinion listed
at 13 Wash. App. 2d 1138 (2025)).

- 516 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
that he, Laurie, and Burmeister were “the management com-
pany of Berkshire Family Building” and that Burmeister was
also a managing partner of Berkshire & Burmeister. However,
there was evidence to the contrary, particularly as to Berkshire
Family Building. Its operating agreement named Rick as
“[t]he initial [m]anager and [p]resident,” and Rick alone signed
the relevant lease agreements as “[m]anager” of Berkshire
Family Building and “[m]anaging [p]artner” of Berkshire &
Burmeister. There was also conflicting evidence about the
costs that Laurie’s winding down of her law practice may have
imposed on Berkshire & Burmeister.
The fact that Berkshire Family Building and Berkshire &
Burmeister were not named as parties is immaterial. In his
brief on appeal, Rick cites a case in which we found that
jurisdiction was lacking due to the absence of an indispensable
party to the controversy, 94 with the apparent implication that
such was the case here. However, that case involved a quiet
title action. 95 It was not an action for breach of fiduciary duty,
as was the case here, and we are aware of no authority that
holds that all parties with whom a partner engaged in alleg-
edly improper transactions must be a party to a lawsuit for the
partner to be held liable for breach of fiduciary duty. Further,
we note that the district court did not enter a judgment against
Berkshire & Burmeister for unpaid rent. Had it done so, our
analysis may have differed.
7. Improper Cash and ATM Withdrawals
From Berkshire Family Building
Rick claims that the district court erred in ordering him
to pay $199,793.26 in damages to Berkshire Partnership for
improper cash and ATM withdrawals from Berkshire Family
Building. Rick raises various arguments in support of this
94 See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73,
894 N.W.2d 221 (2017).
95 See id.

- 517 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
claim, including the argument that the damages were unwar-
ranted because (1) “there was no evidence that [he] personally
had anything to do with the withdrawal[s]”; (2) the appel-
lees “provided no evidence regarding [the withdrawals], other
than [Korth’s] categorizing them as ‘improper’”; and (3) the
“expenditures” could have been for the construction or reno-
vation of one of the residential properties owned by Berkshire
Family Building. 96 The appellees disagree.
[18,19] We again see no error. Rick’s arguments to the
contrary seem to be premised, in part, on a misunderstanding
of his fiduciary duties as a managing partner and of who has
the burden of proof in a case such as this. As we have previ-
ously explained, a managing partner having exclusive control
of a partnership business not only controls production, sales,
and distribution of products but is responsible for keeping all
records and books of account, and he or she is required to
account to the partnership for any benefit or profit derived
from any transaction connected with the formation, operation,
or liquidation of the partnership or from any use by him or
her of its property. 97 Relatedly, albeit in a somewhat differ-
ent context, we have explained that although the burden is
ordinarily upon the party seeking an accounting to produce
evidence to sustain the accounting, when another person is
in control of the books and has managed the business, that
other person is in the position of a trustee and must make a
proper accounting. 98
In other words, it was Rick, and not the appellees, who had
the burden to account for the withdrawals here, and to the
extent that there was no evidence of the purpose of those with-
drawals, that defect is chargeable to Rick and not the appel-
lees. However, we also note the evidence here showed that a
96 Brief for appellant at 45.
97 Essay v. Essay, 175 Neb. 689, 123 N.W.2d 20 (1966).
98 Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).

- 518 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
person to whom Rick had given a Berkshire Family Building
ATM card ran up $199,793 in charges over a 2½-year period
and that those expenses were not clearly shown to have been
for business purposes. Rick testified that he did not person-
ally benefit from these withdrawals, but he conceded that he
did not monitor the individual closely “enough to prevent this
fraud.” Rick also admitted in his deposition that he never tried
to recover the funds.
A similar mistake underlies Rick’s arguments that the award
of damages was improper, because insofar as Laurie was
awarded damages “only for the reason that she was a manager”
of Berkshire Family Building, (1) Burmeister was also owed
damages, but is not a party to the case, and (2) none of the other
appellees should recover any damages, because they were not
managers of or partners in Berkshire Family Building. 99 The
damages in question were awarded to Berkshire Partnership
for Rick’s breach of his fiduciary duty to the partnership, and
not to Laurie as a purported manager or partner of Berkshire
Family Building.
As to Rick’s remaining arguments, we have previously
found there to be no merit to the arguments that (1) Berkshire
Family Building is not a party to this suit, (2) Laurie and
Burmeister were also managers of Berkshire Family Building,
and (3) the transactions in question occurred outside the statu-
tory limitation period.
8. Unreported Transfers From
Berkshire Family Building
Rick 	claims 	that 	the 	district 	court 	erred 	in 	awarding
Berkshire Partnership $1,014,960.18 in damages for “unre-
ported transfers” from Berkshire Family Building. Rick argues
that the damages were unwarranted because, among other
things: (1) the transfers were actually reported insofar as
Korth was able to identify them; (2) the complaint claims that
99 Brief for appellant at 45.

- 519 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
Rick failed to account to Berkshire Partnership for income
received from Berkshire Family Building, but the appellees
failed to prove there was any such income; and (3) Laurie,
as a manager of Berkshire Family Building, was responsible
for any failure here and had ample opportunities to discover
why no income was being paid to Berkshire Partnership. The
appellees argue primarily that the evidence supported the dis-
trict court’s ruling.
We agree with the appellees that the evidence supported
the conclusion that Rick was liable to Berkshire Partnership
for $1,014,960.18 in damages due to “unreported transfers.”
Starting at trial and continuing through his brief on appeal,
Rick has raised issues with the word “unreported” that miss
the mark. Ultimately, whatever label is applied to these trans-
actions, the evidence showed that there was no documentation
of the sort that one would expect with payments or loans that,
combined, totaled over $1 million, especially when many of
those payments or loans involved businesses in which Rick or
his friends had interests. Rick and his witness did testify that
work was performed that was not invoiced and that loans were
made without promissory notes. But Rick, as the managing
partner, had the burden of accounting for these transfers and
failed to do so in any meaningful fashion.
We take a similar view of Rick’s claim that, in essence,
Laurie is equally responsible. There was conflicting evidence
as to whether Rick was the sole manager of Berkshire Family
Building, as noted above. There was also conflicting evidence
as to Laurie’s access to Berkshire Partnership’s financial
records. In a nutshell, while certain documents may have
been available to Laurie on a shared computer drive at the
law firm, there was no evidence the other general partners
had access to that drive. Also, the evidence showed that cer-
tain documents were not available to Leslie and Laurie. For
that reason, among others, Rick’s reliance on the proposition
that “[a] defrauded party must be diligent and prudent in his

- 520 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
effort to detect the fraud and means of knowledge thereof are
equivalent to knowledge” is inapplicable here. 100
Rick’s remaining argument, that Berkshire Family Building
is not a party to this action, is without merit for the reasons set
forth above.
9. Direct Withdrawals From
Berkshire Partnership
Rick 	claims 	that 	the 	district 	court 	erred 	in 	awarding
Berkshire Partnership $253,645.61 in damages for direct with-
drawals from the partnership. Rick argues that the award was
unwarranted because the withdrawals were “reflected in the
accountings which [Korth] had available to him” and in Rick’s
own accountings. 101 As such, Rick seems to suggest that there
was no issue with the withdrawals. Rick also raises issues
with Korth’s report, among other things. The appellees argue
that the evidence supported the award of $253,645.61 in dam-
ages for direct withdrawals from the partnership.
Once more, we see no error here. As Korth’s testimony
made clear, the issue with these withdrawals was not that the
amounts and dates of the withdrawals could not be identified.
Instead, Korth testified that there was “‘no explanation’” for
the transfers and that “‘they do not appear to be for amounts
owed by Berkshire Partnership for business purposes.’” In
his brief on appeal, Rick identifies the purpose of all these
withdrawals except for the two withdrawals that the appel-
lees stipulated were legitimate expenses. Rick asserts that
insofar as Korth “claimed he could not figure out what the
expenditures were for,” the appellees failed to meet their bur-
den of proof, “especially given the fact that [Korth] included
2 expenditures that he readily admitted were incorrect.” 102
However, as explained above, it was Rick, and not the
100 Id. at 10 (citing Abels v. Bennet, 158 Neb. 699, 64 N.W.2d 481 (1954)
(dispute over deed)).
101 Brief for appellant at 47.
102 Id. at 48.

- 521 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
appellees, who had the burden to account for these withdraw-
als and show that they were for business purposes.
Rick also argues that he did not get Korth’s report until
shortly before trial and that the report “contained hundreds of
line-item transactions out of thousands which occurred over the
previous 14 years.” 103 The first of these arguments is without
merit for the reasons set forth above. As to the second, had
Rick performed his duties as managing partner over the years,
it would have been much easier for him to explain the nature
of particular transactions.
That 	leaves 	only 	Rick’s 	claim 	that 	because 	Berkshire
Partnership had limited cash assets, the only way he could
have withdrawn over $200,000 from the partnership was by
borrowing against the margin account. As such, he claims
that the district court’s ruling here effectively requires him
to “pay twice” for the same withdrawals that counted against
him in the court’s ruling on his capital accounts. 104 However,
Rick cites nothing in the record before us on appeal to show
that the amounts in question were actually counted against
him twice.
10. Attorney Fees
Rick claims that the district court erred in awarding attorney
fees to the appellees. Relying on a statute 105 that addresses
the award of attorney fees in judicial proceedings “involving
the administration of a trust” and an opinion 106 of this court
construing that statute, Rick argues that the appellees should
not have been awarded attorney fees because he gave them
“access to all accounting information” before they filed suit. 107
103 Id. at 47.
104 Id. at 49.
105 See, Neb. Rev. Stat. § 30-3893 (Reissue 2016).
106 In re Rolf H. Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d
458 (2014).
107 Brief for appellant at 38.

- 522 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
The appellees argue that the district court did not err in award-
ing them attorney fees, because they generally prevailed on
their claims, which were “derivative in nature.” 108 As such, the
appellees claim that they were entitled to attorney fees under
§ 67-291 and our opinions construing that statute. 109
[20] As a general rule, attorney fees and expenses may be
recovered in a civil action only where provided for by statute or
when a recognized and accepted uniform course of procedure
has been to allow recovery of attorney fees. 110 Customarily,
attorney fees are awarded only to prevailing parties or assessed
against those who file frivolous suits. 111
We agree with the district court that the appellees generally
prevailed here, even if they did not succeed on every claim,
as Rick argues. The question is whether a statute provides for
attorney fees. Insofar as Rick relies on § 30-3893 in argu-
ing that the district court erred in awarding attorney fees, we
disagree. Rick’s argument is premised on the view that this
proceeding was a proceeding “involving the administration
of a trust.” 112 However, that view is incorrect for the reasons
set forth above. As such, Rick’s sole argument as to why the
district court erred in awarding attorney fees is inapposite.
Before the district court, Rick did argue that the appellees
were not entitled to attorney fees under § 67-291 because
this was not a derivative action and because the appellees
did not distinguish between the fees associated with success-
ful claims and those associated with unsuccessful claims, as
Rick argues is required under a prior opinion of this court. 113
Rick does not renew that argument on appeal. As such, we
108 Brief for appellees at 30.
109 See, e.g., Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428,
811 N.W.2d 178 (2012).
110 Beatty v. Poitier, 319 Neb. 56, 21 N.W.3d 295 (2025).
111 Mann v. Mann, 316 Neb. 910, 7 N.W.3d 845 (2024).
112 See § 30-3893.
113 See Fitzgerald, supra note 109.

- 523 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
decline to review it. 114 An alleged error must be both spe-
cifically assigned and specifically argued in the brief of
the party asserting the error, 115 and Rick failed to argue any
error related to the district court’s conclusion that this was a
derivative action.
11. Request for Specific Findings of Fact
Rick claims that the district court erred in overruling his
request for specific findings of fact. Rick argues that this
appeal “could have been avoided” if that request had been
granted and the district court had made the factual findings he
sought. 116 The appellees argued that the district court did not
err in overruling Rick’s request for specific findings of fact
because the request was untimely.
We agree with the appellees that there was no error here
because Rick’s request was untimely. We have long opined that
in a case tried to the court without a jury, such as this one, a
motion for specific findings of fact pursuant to Nebraska stat-
ute 117 must be made before the final submission of the case to
the court. 118 “[F]inal submission” is a legal term of art, denot-
ing that the matter has been submitted for a verdict. 119 The final
114 See, e.g., State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021)
(court limiting its analysis of claim that evidence was insufficient to
support verdict to argument concerning machete’s being concealed weapon
because that was only argument raised in brief on appeal); Adair Holdings
v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020) (similar); In re Claims
Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 (2015) (similar).
115 State v. Lopez, 321 Neb. 118, 32 N.W.3d 868 (2026).
116 Brief for appellant at 50.
117 See Neb. Rev. Stat. § 25-1127 (Reissue 2016).
118 See, e.g., Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d
774 (2018); Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122
(1991); In re Estate of Wiley, 150 Neb. 898, 36 N.W.2d 483 (1949); State,
ex rel. Sorensen, v. Mitchell Irrigation District, 129 Neb. 586, 262 N.W.
543 (1935); Ross v. Barker, 58 Neb. 402, 78 N.W. 730 (1899).
119 See Black’s Law Dictionary 747 (10th ed. 2014).

- 524 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
BERKSHIRE v. BERKSHIRE
Cite as 322 Neb. 477
submission of this case occurred no later than December 8,
2023, when Rick’s posttrial brief containing his closing argu-
ments was filed with the district court. However, Rick did not
make his request for specific findings of fact until May 14,
2024, over 5 months after the filing of his posttrial brief.
Also, even if Rick’s motion had been timely, its overrul-
ing “could not be error in an equity case that would require a
reversal and retrial.” 120 While the findings of fact and conclu-
sions of law Rick sought could have been helpful to us, their
absence, even when requested, cannot be prejudicial because
we review claims of breach of fiduciary duty de novo. 121 In
addition, for the sake of completeness, we note that we have
previously ruled that the relevant statute does not obligate the
trial court to “answer specific interrogatories propounded to it
by a litigant,” like those Rick presented to the district court. 122
Instead, it obligates the trial court to “make such specific
findings of fact as the trial court concludes are appropriate
and necessary to resolve the action.” 123
VI. CONCLUSION
We conclude that we have jurisdiction over this appeal,
and all matters raised in it, and that Rick’s claims are without
merit. As such, we affirm the order of the district court.
Affirmed.
120 See In re Estate of Wiley, supra note 118, 150 Neb. at 914, 36 N.W.2d
at 493. See, also, Fee v. Fee, 223 Neb. 128, 388 N.W.2d 122 (1986)
(conclusions of fact and law are mandatory when requested in law action,
but are merely helpful in equity actions because appellate court reviews
record de novo and reaches conclusions independent of trial court).
121 See In re Estate of Wiley, supra note 118.
122 Lindgren v. City of Gering, 206 Neb. 360, 371, 292 N.W.2d 921, 927
(1980).
123 Id.