Floral Lawns Memorial Gardens Assn. v. Becker

532 	284 NEBRASKA REPORTS
devisee’s partition action after the estate has been closed can-
not be a will contest that attacks the testator’s will. Instead,
Lewis’ no contest provision had the effect of foreclosing such
actions and protecting his intent that the last heir standing
would inherit the farmland.
CONCLUSION
We conclude that the district court correctly determined
that Anna and Lonnie’s partition action was not a will contest
because it was filed after the estate was closed.
A ffirmed.
florAl lAwns memoriAl GArdens A ssociAtion,
A nebrAskA corporAtion, Appellee, v.
bruce c. becker, AppellAnt, And
lindA becker, Appellee.
822 N.W.2d 692
Filed October 19, 2012. 	No. S-11-1077.
1. Accounting: Equity. An action for accounting may be one in law or one
in equity.
2. Equity: Appeal and Error. 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.
3. Receivers: Corporations. Appointing a receiver for a corporation is a harsh and
drastic remedy, and is not one to be implemented lightly.
4. Receivers: Statutes: Notice. Under Nebraska law, a court’s ability to appoint a
receiver is governed by statute. The court can appoint a receiver only in specific
situations, and the court must provide notice to all interested parties.
5. Receivers: Notice. An order appointing a receiver must provide notice to all
interested parties, or the order is void.
6. Receivers: Final Orders. An order appointing a receiver is a final, appeal-
able order.
7. Corporations: Statutes. Corporations are creatures of statute, and they may be
dissolved only according to statute.
8. Receivers: Corporations. The general nature of a receiver’s task, unless
appointed in an action for corporate dissolution, is to preserve and protect the
property under his or her control.
9. ____: ____. Where there is no proper action for corporate dissolution, a court
does not have the power to bypass that requirement and effectively dissolve the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

FLORAL LAWNS MEMORIAL GARDENS ASSN. v. BECKER 	533
Cite as 284 Neb. 532
corporation by having the receiver wind up the business and sell all of the corpo-
ration’s assets.
10. Equity. Equity strives to do justice. Equity is not a rigid concept but, instead,
is determined on a case-by-case basis according to concepts of justice and
fairness.
Appeal from the District Court for Lincoln County: donAld
e. rowlAnds, Judge. Affirmed as modified.
Gregory C. Damman, of Blevens & Damman, for appellant.
Larry R. Baumann and Angela R. Shute, of Kelley, Scritsmier
& Byrne, P.C., for appellee Floral Lawns Memorial Gardens
Association.
H eAvicAn, c.J., wriGHt, connolly, stepHAn, mccormAck,
miller-lermAn, and cAssel, JJ.
connolly, J.
NATURE OF THE CASE
The district court placed Bruce C. Becker’s corporation,
Floral Lawns Memorial Gardens Association (Floral Lawns),
a cemetery association, into receivership and approved the
winding up of the business and its dissolution. The court then
fashioned an equitable remedy for distribution of the resulting
funds, which Bruce challenged on appeal. The issue is whether
the court had the power to take these actions.
BACKGROUND
Several events in this case occurred under older versions of
the relevant statutes. But because those versions are not sub-
stantively different for our purposes, for convenience we will
refer to the most current reissue of the statutes.
procedurAl H istory
Bruce was the sole shareholder of Floral Lawns, a cemetery
association. At some point in the early 2000’s, Bruce’s wife,
Linda Becker, filed for divorce. During the divorce proceed-
ings, the district court declined to address issues related to
Floral Lawns, placed it in receivership in 2003, and directed
that those issues be resolved in a separate action. The record
does not contain the district court’s order appointing the

534 	284 NEBRASKA REPORTS
receiver or detail the court’s reasons for doing so. But from the
record, it appears that Floral Lawns’ finances and accounting
records were quite muddled, and the court probably appointed
a receiver to sort them out.
In January 2005 (while the divorce was still pending), the
receiver, on behalf of Floral Lawns, filed an accounting action
against the Beckers. In essence, the complaint requested the
court to order them to account for Floral Lawns’ income and
expenses, and for the funds used to purchase certain real estate.
The complaint stated:
Based upon the reports that [the receiver] filed with the
Court, the books and records of [Floral Lawns] are con-
fusing and create doubt as to whether the funds have been
properly managed and that the [Beckers] have used funds
belonging to [Floral Lawns] for their personal use without
regard to proper accounting.
The complaint also asked the court to appoint trustees to
operate Floral Lawns, and to approve fees for the receiver
and a couple of individuals who assisted in various other
capacities.
In May 2005, the court dissolved the Beckers’ marriage. The
order indicated that the distribution of the marital estate was
based on, in significant part, the receiver’s findings in the sepa-
rate accounting action. The decree awarded Bruce “all accounts
in his name or in the name of Floral Lawns,” along with “any
assets of Floral Lawns . . . that remain[ed] after the receiver
ha[d] completed his report.”
In April 2010, the receiver moved the court to approve its
sale of Floral Lawns’ assets to another cemetery association.
The court approved the sale and entered an order to that effect.
Following Bruce’s objection to the order, the court clarified
that Bruce would still receive the balance of the proceeds
deposited by the receiver following the payment of costs asso-
ciated with Floral Lawns’ receivership.
tHe receiver’s report
In January 2011, the receiver filed his final report with the
court. Although Floral Lawns’ initial complaint asked for an
accounting, at some point a decision was made to dissolve

FLORAL LAWNS MEMORIAL GARDENS ASSN. v. BECKER 	535
Cite as 284 Neb. 532
Floral Lawns once the receivership ended. In the report, the
receiver explained that he had sold all of Floral Lawns’ assets,
paid its expenses, filed its income tax returns, and canceled its
insurance policies. The report also stated that the receiver had
“wound up all of the day to day business operations” of Floral
Lawns. And the report requested the district court to terminate
the receivership and dissolve Floral Lawns.
According to the report, there were only two issues that had
to be resolved before terminating the receivership and dissolv-
ing the corporation. The first was the payment of the receiver’s
fees and the fees of other individuals who had been involved
in various other capacities. The second issue related to the
“improprieties of how Bruce . . . dealt with pre-need sales, and
his failure to deposit funds into the trust account as required
by law.”
A “pre-need sale” refers to a purchase of cemetery products
before a person’s death.1 Nebraska’s Burial Pre-Need Sale Act
regulates these transactions.2 The act requires pre-need sell-
ers like Bruce to deposit the proceeds into a trust account and
maintain detailed records.3 The record shows that Bruce did
not keep proper records and failed to deposit pre-need sales
proceeds into a trust account as required by the act.
The receiver stated that Bruce admitted that he wrongfully
failed to deposit about $115,000 of pre-need sales into Floral
Lawns’ pre-need trust account. The receiver thought that esti-
mate was fairly accurate. The receiver concluded that the miss-
ing money from the pre-need sales “create[d] a large and unre-
solved liability for Floral Lawns.” It appears that “liability”
was used in the accounting sense; in other words, the receiver
meant that Floral Lawns had unresolved financial obligations.
And because of the incomplete records and lack of funds, the
receiver was unable to meet those obligations.
The receiver saw two ways of resolving this problem. One
was to hire a forensic accountant to go through Floral Lawns’
1 See Neb. Rev. Stat. § 12-1102 (Reissue 2007).
2 See Neb. Rev. Stat. §§ 12-1101 to 12-1121 (Reissue 2007).
3 See §§ 12-1103 and 12-1105.

536 	284 NEBRASKA REPORTS
financial records, determine the exact amount of money that
Bruce had misappropriated, and then sue and obtain a judg-
ment against Bruce. The receiver argued against this approach
because it would extend the receivership and delay Floral
Lawns’ dissolution and it would be unlikely to recover funds
sufficient to pay for the cost of such an endeavor. Furthermore,
the receiver believed it would be impossible to recover on any
judgment against Bruce.
The other way, and the one which the receiver recom-
mended, was to take any leftover funds from Floral Lawns
and place them into the pre-need trust account. Quail Creek
Cemetery Services & Association (Quail Creek), the cemetery
association that purchased Floral Lawns’ assets, could then use
those funds to bury individuals upon their death whose pre-
need money Bruce had failed to place into the pre-need trust
account. The receiver advocated for this approach because it
would close the receivership sooner and would not require
a forensic accountant’s services. And to make this approach
“more acceptable to” Bruce, the receiver proposed a one-time
payment of $4,000 to Bruce from the receivership.
The court adopted the findings and recommendations of the
receiver’s report, but made a few changes. The court ordered a
one-time $4,000 payment to Bruce and then ordered that
all remaining funds shall be deposited into a trust account
. . . to be paid out over the course of time to those indi-
viduals who purchased preneed accounts and whose mon-
ies where [sic] not deposited into the trust account . . . for
such purpose. After the passage of ten years from today’s
date, if those funds still remain, they shall be paid over
to [Bruce].
Bruce appealed this order, but the Nebraska Court of Appeals
found some issues left unresolved by the district court’s order
and dismissed for lack of jurisdiction on June 14, 2011, in case
No. A-11-138. The district court then entered a final order in
November 2011, which order Bruce appealed.
ASSIGNMENT OF ERROR
Bruce assigns, restated, that the district court erred in order-
ing Floral Lawns’ remaining funds be placed into a trust

FLORAL LAWNS MEMORIAL GARDENS ASSN. v. BECKER 	537
Cite as 284 Neb. 532
account for 10 years, rather than be given to him immediately
under the divorce decree.
STANDARD OF REVIEW
[1,2] An action for accounting may be one in law or one in
equity.4 Because of the unique circumstances of this case, there
is no adequate remedy at law and equity jurisdiction is proper.5
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 indepen-
dent of the trial court’s determination.6
ANALYSIS
Although Bruce assigns as error only the district court’s
handling of the leftover funds from the sale of Floral Lawns’
assets, our de novo review on the record reveals a labyrinth
of legal problems that was apparently not recognized by the
parties. These issues, combined with the late stage of these
proceedings, present a difficult case—one for which there is no
easy answer.
[3,4] The first issue that arises is whether the district court
properly appointed the receiver. It is well established that
appointing a receiver for a corporation is a harsh and drastic
remedy, and is not one to be implemented lightly.7 And under
Nebraska law, a court’s ability to appoint a receiver is governed
by statute.8 The court can appoint a receiver only in specific
situations,9 and the court must provide notice to all interested
4 See, e.g., Arizona Motor Speedway v. Hoppe, 244 Neb. 316, 506 N.W.2d
699 (1993). See, also, 1 Am. Jur. 2d Accounts and Accounting § 54 (2005).
5 See, e.g., Hoppe, supra note 4; Trump, Inc. v. Sapp Bros. Ford Center,
Inc., 210 Neb. 824, 317 N.W.2d 372 (1982).
6 Newman v. Liebig, 282 Neb. 609, 810 N.W.2d 408 (2011).
7 See, e.g., Furrer v. Nebraska Building & Investment Co., 108 Neb. 698,
189 N.W. 359 (1922); 12 Zolman Cavitch, Business Organizations With
Tax Planning § 155.01[2] (2007).
8 See Neb. Rev. Stat. § 25-1081 (Reissue 2008).
9 See id.

538 	284 NEBRASKA REPORTS
parties.10 The initial question is whether those requirements
were met here.
The record does not show why the district court appointed
a receiver in the underlying divorce action, because we have
no record of the testimony or hearings in that case. Nor do we
have the court’s order appointing the receiver. From our read-
ing of the divorce decree, it appears that the trial court initially
appointed the receiver to hold Floral Lawns’ assets until Floral
Lawns’ finances could be sorted out. The main goal, presum-
ably, was to get an accurate valuation for Floral Lawns and
thereby obtain a fair division of the marital estate.
Under § 25-1081, obtaining a valuation of a corpora-
tion does not fall under any of the specifically enumer-
ated grounds for appointing a receiver. But § 25-1081 also
includes a catchall ground for situations where, historically,
“receivers have heretofore been appointed by the usages of
courts of equity.”11 That catchall provision arguably applies
here. There exists some support for appointing a receiver
to manage a corporation’s assets when the corporation is
included in the marital estate in a divorce action.12 As such,
there appear to be statutory grounds to support the court’s
appointing a receiver to assess and manage Floral Lawns’
assets pending the divorce.
[5] An order appointing a receiver must also provide notice
to all interested parties, or the order is void.13 At oral argu-
ment, the parties conceded that either Bruce was the sole
shareholder or Bruce and his ex-wife were the only sharehold-
ers. Both Bruce and his ex-wife presumably received notice
of the order to appoint the receiver, because both were parties
to the divorce action. We conclude that the notice requirement
was met.
[6] We also note that the court appointed the receiver in
2003 and that neither party appealed the appointment. An order
10 See Neb. Rev. Stat. § 25-1082 (Reissue 2008).
11 See § 25-1081(8).
12 See, e.g., Mayhue v. Mayhue, 336 Pa. Super. 188, 485 A.2d 494 (1984).
See, also, 24 Am. Jur. 2d Divorce and Separation § 569 (2008).
13 See § 25-1082 and Neb. Rev. Stat. § 25-1089 (Reissue 2008).

FLORAL LAWNS MEMORIAL GARDENS ASSN. v. BECKER 	539
Cite as 284 Neb. 532
appointing a receiver is a final, appealable order,14 and so the
time for appeal has long passed.15 Bruce did not assign the
order appointing a receiver as error. And neither party claimed
such error at oral argument. We conclude that the court did not
err in appointing a receiver for Floral Lawns.
[7] But we do find error in the receiver’s and court’s
actions following the appointment. We first address the court’s
attempted dissolution of Floral Lawns. In short, the court did
not have the power to dissolve Floral Lawns. Corporations
are creatures of statute, and they may be dissolved only
according to statute.16 No statutory grounds for dissolution
existed here.
Which statutes apply depends on whether the corporation is
a nonprofit or for-profit company. There is some question as to
how to characterize Floral Lawns, but testimony and answers
at oral argument indicated that Floral Lawns was a for-profit
corporation, and this was not questioned by either party. Under
the for-profit corporate statutes, a corporation may be dis-
solved voluntarily, administratively, or judicially.17 There is no
evidence to show that this was a voluntary or an administra-
tive dissolution. And although Bruce suggested that the trial
court could have ordered him to dissolve the corporation, this
was not done, and we therefore have no reason to address
this contention.
This leaves only the possibility of judicial dissolution under
§ 21-20,162. Section 21-20,162 says that a court may dissolve
a corporation only when the action is brought by the Attorney
General, a shareholder, or a creditor, on various grounds, or
when the corporation asks the court to continue its already
ongoing voluntary dissolution. None of those requirements
are met here, because it was the receiver who brought this
14 See, Robertson v. Southwood, 233 Neb. 685, 447 N.W.2d 616 (1989); Neb.
Rev. Stat. § 25-1090 (Reissue 2008).
15 See Neb. Rev. Stat. § 25-1912 (Reissue 2008).
16 See, Furrer, supra note 7; 19 Am. Jur. 2d Corporations § 2350 (2004);
19 C.J.S. Corporations § 916 (2007); 14 Zolman Cavitch, Business
Organizations With Tax Planning § 186.01[1] (2006).
17 See Neb. Rev. Stat. §§ 21-20,151 to 21-20,166 (Reissue 2007).

540 	284 NEBRASKA REPORTS
action and there was no evidence of a voluntary dissolution. As
such, the court had no power to dissolve the corporation under
Nebraska law and its attempt to do so was error.
[8,9] Because the statutory requirements for judicial dis-
solution were not met, the receiver’s actions in winding up
Floral Lawns and selling its assets were also improper and
outside the power of the court to approve. We recognize that
a receiver’s powers have been described by some commenta-
tors as allowing the receiver “to do whatever is appropriate
and equitable, if approved by the receivership court.”18 But
the general nature of a receiver’s task, unless appointed in
an action for corporate dissolution, is to preserve and protect
the property under his or her control.19 And where there is no
proper action for corporate dissolution, a court does not have
the power to bypass that requirement and effectively dissolve
the corporation by having the receiver wind up the business
and sell all of the corporation’s assets.20 This is what happened
here, and this was error.
In sum, the court had the power to place Floral Lawns in
receivership. But the court did not have the power to dis-
solve the corporation. And because there was no proper action
for dissolution, the court did not have the power to approve
the receiver’s winding up the business and selling the busi-
ness’ assets.
Our ability to correct these errors is restricted by several
factors. The receiver has already wound up the business and
sold all of its assets. Practically speaking, it would be impos-
sible to undo these actions. Moreover, both parties seemingly
accept that the business is ended; they just dispute what
should happen to the remaining proceeds from the sale of the
assets. We also note that the remaining funds are a relatively
small amount ($10,000 to $17,000 by the parties’ estimations),
so it does not make sense to remand the cause for further
18 12 Cavitch, supra note 7, § 155.04[1] at 155-42.
19 See id., §§ 155.01[1] and [2] and 155.04[1] through [4].
20 See Furrer, supra note 7.

FLORAL LAWNS MEMORIAL GARDENS ASSN. v. BECKER 	541
Cite as 284 Neb. 532
proceedings, which would simply exhaust the funds through
fees and other costs.
[10] But this action sounds in equity, and we may craft a
remedy according to equitable principles.21 Equity strives to
do justice.22 Equity is not a rigid concept but, instead, is deter-
mined on a case-by-case basis according to concepts of justice
and fairness.23
Here, the divorce decree awarded Bruce any funds remain-
ing after Floral Lawns’ receivership. But the record also shows
that he did not deposit money from pre-need sales into a trust
account as required by Nebraska law. In essence, Bruce misap-
propriated those funds, to the tune of about $115,000, for his
own personal use.
Justice may be blind, but it is not stupid. Bruce already
received a one-time $4,000 payment from the receivership, and
we reject Bruce’s claim for the remaining funds. Though the
remaining funds are less than the total amount Bruce failed to
deposit in the pre-need trust account, placing the funds in the
trust account can help mitigate the loss.
If Bruce had properly deposited the pre-need sales’ funds
into the trust account, then Floral Lawns would have been
entitled to receive those funds once it provided the funeral
products to the pre-need purchaser upon his or her death.24 In
other words, the funds would have been deferred compensa-
tion for the cemetery once it provided the purchased products.
The record shows that Quail Creek has assumed many of
Floral Lawns’ financial obligations, including providing burial
arrangements to individuals who made pre-need purchases
from Floral Lawns but whose money Bruce did not properly
21 See, e.g., State ex rel. Stenberg v. Moore, 253 Neb. 535, 571 N.W.2d 317
(1997); Synacek v. Omaha Cold Storage, 247 Neb. 244, 526 N.W.2d 91
(1995), overruled on other grounds, Billingsley v. BFM Liquor Mgmt., 259
Neb. 992, 613 N.W.2d 478 (2000).
22 See, e.g., Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).
23 See, e.g., Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d 268 (2006);
Trieweiler, supra note 22.
24 See § 12-1113.

542 	284 NEBRASKA REPORTS
deposit in the trust account. We believe the equitable remedy
is to place the remaining money in the existing pre-need trust
account, give Quail Creek all existing records which document
the pre-need sales, and allow Quail Creek to withdraw the
money as it renders services. And unlike the district court, we
conclude that the money should not revert to Bruce no matter
how much time has passed. Accordingly, we affirm the district
court’s judgment as modified by this opinion.
A ffirmed As modified.