Sebade v. Sebade

- 398 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Brent Sebade, in his individual capacity and
derivatively on behalf of Sebade Brothers, a
Nebraska partnership, appellee, v. Rick Sebade
and Sarah Sebade, appellants.
___ N.W.3d ___
Filed December 5, 2025. 	No. S-24-902.
1. Judgments: Appeal and Error. In a bench trial of a law action, a trial
court’s factual findings have the effect of a jury verdict and will not be
set aside on appeal unless clearly wrong. After a bench trial of a law
action, an appellate court does not reweigh evidence, but considers the
evidence in the light most favorable to the successful party and resolves
evidentiary conflicts in favor of the successful party.
2. Trial: Witnesses: Evidence: Appeal and Error. In a bench trial of an
action at law, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony; an appellate court
will not reevaluate the credibility of witnesses or reweigh testimony but
will review the evidence for clear error.
3. Equity: Appeal and Error. In an appeal of an equity action, an appel-
late court tries factual questions de novo on the record and reaches
a conclusion independent of the findings of the trial court; provided,
where the credible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one version of the
facts rather than another.
4. Limitations of Actions. Which statute of limitations applies is a ques-
tion of law.
5. Limitations of Actions: Appeal and Error. The point at which a statute
of limitations begins to run must be determined from the facts of each
case, and the decision of the trial court on the issue of the statute of
limitations normally will not be set aside by an appellate court unless
clearly wrong.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:53 AM CDT

- 399 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
6. Motions for New Trial: Judges: Words and Phrases: Appeal and
Error. An appellate court reviews the denial of a motion for new trial
or, in the alternative, to alter or amend the judgment, for an abuse of
discretion. A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a litigant
of a substantial right and denying just results in matters submitted
for disposition.
7. Limitations of Actions: Fraud: Words and Phrases. “Discovery,” in
the context of statutes of limitations, refers to the fact that one knows
of the existence of an injury or damage and a wrongful act. Discovery
can be actual or constructive. Constructive discovery occurs when the
party discovers facts sufficient to put a person of ordinary intelligence
and prudence on an inquiry which, if pursued, would lead the person to
discover the fraud.
8. Limitations of Actions: Fraud. An action for fraud does not accrue
until there has been a discovery of the facts constituting the fraud, or
facts sufficient to put a person of ordinary intelligence and prudence on
an inquiry which, if pursued, would lead to such discovery.
9. Limitations of Actions: Notice. Whatever fairly puts a person on
inquiry is sufficient notice for discovery in the context of statutes of
limitations, where the means of knowledge are at hand; and if the plain-
tiff omits to inquire, the plaintiff is then chargeable with all the facts
which, by a proper inquiry, might have been ascertained.
10. Notice. Notice of facts that under the circumstances would lead an
ordinarily prudent person to make an examination which, if made,
would disclose the existence of other facts is sufficient notice of such
other facts.
11. Limitations of Actions. If a fraud or mistake ought to have been discov-
ered, the statute of limitations will run from the time discovery ought to
have been made.
12. Limitations of Actions: Fraud: Proof. Where an action is brought for
relief on the ground of fraud after the lapse of 4 years from the date of
a fraudulent transaction, it is the plaintiff’s burden to allege and prove
facts as to the failure to discover the fraudulent transaction and pros-
ecute within 4 years.
13. Appeal and Error. An appellate court has the discretion to affirm, as
it deems appropriate, a correct result that was reached below for the
wrong reason.
14. Fraud: Proof. To prove fraudulent concealment, a plaintiff must prove
these elements: (1) The defendant had a duty to disclose a material
fact; (2) the defendant, with knowledge of the material fact, concealed

- 400 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
the fact; (3) the material fact was not within the plaintiff’s reasonably
diligent attention, observation, and judgment; (4) the defendant con-
cealed the fact with the intention that the plaintiff act or refrain from
acting in response to the concealment or suppression; (5) the plaintiff,
reasonably relying on the fact or facts as the plaintiff believed them to
be as a result of the concealment, acted or withheld action; and (6) the
plaintiff was damaged by the plaintiff’s action or inaction in response
to the concealment.
15. ____: ____. A fraudulent misrepresentation claim requires a plaintiff to
establish the following elements: (1) A representation was made; (2) the
representation was false; (3) when made, the representation was known
to be false or made recklessly without knowledge of its truth and as a
positive assertion; (4) the representation was made with the intention
that the plaintiff should rely on it; (5) the plaintiff did so rely on it; and
(6) the plaintiff suffered damage as a result.
16. Contracts: Compromise and Settlement. A settlement agreement is
subject to the general principles of contract law.
17. Contracts: Parties: Compromise and Settlement. To have a settlement
agreement, there must a definite offer and an unconditional acceptance.
A fundamental and indispensable basis of any enforceable agreement
is that there be a meeting of the minds of the parties as to the essential
terms and conditions of the proposed contract.
18. Compromise and Settlement. The law favors and encourages settle-
ments, and in the absence of fraud, error, or mistake, they should not be
set aside.
19. Principal and Agent. The scope of an agent’s authority is a question
of fact.
20. Expert Witnesses. The determination of the weight that should be given
expert testimony is uniquely the province of the fact finder.
21. Conspiracy: Words and Phrases. A civil conspiracy is a combina-
tion of two or more persons to accomplish by concerted action an
unlawful or oppressive object, or a lawful object by unlawful or
oppressive means.
22. Conspiracy: Torts: Proof. A claim of civil conspiracy requires the
plaintiff to establish that the defendants had an expressed or implied
agreement to commit an unlawful or oppressive act that constitutes a tort
against the plaintiff.
23. Actions: Conspiracy. A civil conspiracy is actionable only if the alleged
conspirators actually committed some underlying conduct.
24. Conspiracy: Torts. A conspiracy is not a separate and independent tort
in itself; rather, it depends upon the existence of an underlying tort.

- 401 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
25. Conspiracy: Aiding and Abetting: Liability. Liability for civil con-
spiracy is in substance the same thing as aiding and abetting liability.
26. Actions: Aiding and Abetting. A claim of aiding and abetting is that
in addition to persons who actually participate in concerted wrongful
action, persons who aid, abet, or procure the commission thereof are
subject to civil action therefor.
27. Actions: Conspiracy: Aiding and Abetting: Liability. Claims of civil
conspiracy and aiding and abetting are essentially methods for imposing
joint and several liability on all actors who committed a tortious act or
any wrongful acts in furtherance thereof.
28. Actions: Conspiracy: Aiding and Abetting: Torts. Like conspiracy,
aiding and abetting is not a tort in itself and requires an underlying
actionable tort to be actionable.
29. ____: ____: ____: ____. Without an underlying tort, there can be no
cause of action for conspiracy to commit a tort or aiding and abetting
the commission of a tort.
30. Contracts: Fraud. A party to a business transaction can be liable to
another party for failing to disclose a fact that he or she knows may
justifiably induce the other to act or refrain from acting in the transac-
tion, but only if the nondisclosing party was under a duty to the other to
exercise reasonable care to disclose the fact at issue.
31. Fraud. While mere silence cannot constitute fraudulent misrepresenta-
tion absent a duty to disclose, half-truths can.
32. ____. Under fraudulent misrepresentation, to reveal some information
on a subject triggers the duty to reveal all known material facts.
33. Statutes. Statutes effecting a change in the common law should be
strictly construed.
34. Breach of Contract: Torts. The question of when a claim is one for
breach of contract and not a tort is dependent upon whether the grava-
men of the claim is a failure to perform a duty arising out of an agree-
ment between the parties as opposed to a duty fixed by law independent
of the contract.
35. Appeal and Error. Mere citation to a case does not specifically argue
every point of law discussed therein.
36. Election of Remedies. Pursuant to the doctrine of election of remedies,
a party pleading inconsistent theories of recovery may be required to
elect between them.
37. Actions: Equity. A remedy in equity is inconsistent with a remedy at
law, because a suit in equity will not lie when the plaintiff has a plain
and adequate remedy at law.
38. Contracts. A theory of recovery premised on the existence of a contract
is inconsistent with a theory premised on the lack of a contract.

- 402 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
39. Actions: Election of Remedies. Election of remedies does not preclude
a plaintiff from pursuing two causes of action where each action arose
out of different obligations and different operative facts.
40. Actions. Where several claims are asserted against several parties for
redress of the same injury, only one satisfaction can be had.
41. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
42. Contracts: Words and Phrases. A condition precedent includes a
condition which must be fulfilled before a duty to perform an existing
contract arises.
43. Contracts: Intent: Words and Phrases. Whether language in a con-
tract is a condition precedent depends on the parties’ intent as gathered
from the language of the contract.
44. Appeal and Error. In order to be considered by an appellate court, the
party asserting the alleged error must both specifically assign and spe-
cifically argue it in the party’s initial brief.
Appeal 	from 	the 	District 	Court 	for 	Thurston 	County:
Zachary L. Blackman, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellants.
Joshua C. Dickinson and Shilee T. Mullin, of Spencer Fane,
L.L.P., and Scott C. Sandberg, pro hac vice, for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
This case concerns a business partnership owned and oper-
ated by two brothers, which business consisted mainly of farm-
ing and raising feeder cattle. The partnership records were kept
by one brother and his daughter. The partnership fell apart when
the other brother discovered accounting discrepancies that led
him to file the present lawsuit. In the lawsuit, that brother
sought judicial dissolution and damages for alleged breaches
of 	partnership 	duties, 	fraudulent 	concealment, 	fraudulent

- 403 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
misrepresentation, negligent misrepresentation, unjust enrich-
ment, conversion, and breach of contract. Following a bench
trial, the district court found for the brother who did not have
access to the partnership records. We affirm.
II. BACKGROUND
Rick Sebade and Brent Sebade are brothers and were part-
ners in a farming and feeder cattle business until October
2020. Their business was known as Sebade Brothers or Sebade
Farms. Rick started farming and raising livestock with their
father in the 1980s. In the 1990s, Brent returned from college
and joined the business. Their father eventually retired from
the business in the late 1990s.
The business expanded, and the brothers were engaged
in crop farming, raising feeder cattle for slaughter at vari-
ous feedlots across northeastern Nebraska, and reselling dis-
tiller’s grain from ethanol plants. In conjunction with these
activities, the brothers owned three limited liability companies:
Sebade Trucking, L.L.C.; Bancroft Custom Feeders, LLC; and
Bancroft Grain, LLC. The brothers split up work for the busi-
ness. Brent handled the “outside” work, and Rick handled the
“office” work, including buying and selling cattle.
When Rick was working with his and Brent’s father, Rick
developed a system of handwritten records. During the rel-
evant time periods, there were three main handwritten records:
the “Cattle Inventory,” the “Cattle Ledger,” and the “Feed
Ledger.” The Cattle Inventory kept track of the partnership’s
cattle, which feedlots they were being fed at, and who had
what interest in the cattle. The Cattle Ledger kept track of
Rick’s and Brent’s payments for cattle purchases. The Feed
Ledger kept track of Rick’s and Brent’s payments for cattle
feeding expenses.
During the period in question, Rick’s daughter, Sarah Sebade,
worked as the office manager and bookkeeper for the brothers.
Sarah kept the Feed Ledger and Cattle Ledger at her desk and
was responsible for making entries in each ledger during the

- 404 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
course of her work. Rick kept the Cattle Inventory in his office,
at his desk during the day and in his safe at night.
Rick, Sarah, and Brent all worked out of the office at an
Emerson, Nebraska, feedlot until the partners’ split in October
2020. Brent would, from time to time, receive copies of
the three handwritten records for his review. On the Cattle
Inventory, Rick’s and Brent’s ownership interests would be
labeled simply as “Sebades.”
The brothers had a joint bank account at First Northeast
Bank of Nebraska (FNBN) in Lyons, Nebraska, under the
name “Sebade Brothers.” The brothers also each had individual
accounts at FNBN. For partnership expenses, the brothers did
not pay for them out of the joint bank account. Instead, the
brothers would take turns covering purchases of cattle and feed
bills out of their individual accounts. These turns would be
noted on the handwritten ledgers kept by Sarah.
For Rick’s expenses, Sarah would write out and sign checks
from Rick’s account. For Brent’s purchases, Brent would
supply Sarah with a stack of presigned checks on which
Sarah would fill out the payment information and send. The
purpose of this back-and-forth system was to keep payments
by the brothers relatively equal between them. At the end of
each year, Sarah would total each brother’s payments for the
year. Whichever brother had covered less of the expenses
would have his total reduced to zero, and the other brother
would receive a credit going into the next year.
In addition to Rick and Brent’s ownership in feeder cattle,
from time to time, two of Rick’s children (Sarah and Cory
Sebade) and Brent’s three children (Jacob Sebade, Justine
Lallman, and Joshua Sebade) had percentage ownership inter-
ests in cattle in different feedlots. The children were expected
to pay their portions of the purchase prices of the cattle and
the feed costs associated with the ownership interests. The
children would then receive their shares of the proceeds from
the sale of the cattle. The proceeds were paid out from the
brothers’ joint FNBN account.

- 405 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Rick’s grandson Braxten Sebade, who was a minor, also
received an ownership interest in certain cattle as decided by
Rick and Sarah. Braxten is the child of one of Rick’s sons who
was not involved in the partnership’s business. Braxten’s feed
bills and proceeds were handled through accounts shared by
Rick and Sarah, first at FNBN and then at Charter West Bank.
Braxten’s interests in the cattle were recorded in the Cattle
Inventory kept by Rick. The copies of the Cattle Inventory
provided to Brent, however, did not show Braxten’s interests.
As a result, Rick’s and Brent’s interests on those specific
cattle pens were shown on the original Cattle Inventory as
40 percent but shown as 50 percent on the copies provided
to Brent.
During the course of the partnership, Rick engaged in com-
modities trading through joint commodities trading accounts
with two other individuals during the relevant time. Rick did
not have a joint trading account with Brent and did not have a
trading account in the name of the partnership. On Rick’s bro-
kerage account applications, Rick stated no other person or
entity had an interest in the trading accounts. In 2020, Cory
and Sarah each signed a power of attorney authorizing Rick
to trade commodities for them. Rick did not have a power of
attorney from Brent authorizing Rick to trade commodities
for him.
During a review of the ledgers in 2018, Brent found miss-
ing entries and mathematical errors on his side of the ledgers
totaling approximately $1 million. Brent had checked the
entries on his side of the ledgers against his bank account to
determine the extent of the errors but did not review Rick’s
side of the ledgers, the Cattle Inventory, or Rick’s bank
records during this time. When Brent brought the errors to
Sarah’s attention, she stated that she needed to check it out
with Rick. She apparently did so and made the necessary cor-
rections to the ledger.
Brent next noticed a problem in 2020, when the financial
statements he prepared for FNBN showed a $7 million decline

- 406 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
in Brent’s net worth tied to Sebade Brothers and Brent’s line of
credit. To maintain Brent’s line of credit, FNBN asked Brent to
provide it with documentation for a detailed review that might
explain the reduction in his equity. The documentation required
by FNBN included the Cattle Inventory, the Cattle Ledger, and
the Feed Ledger.
Soon thereafter, Brent informed Rick that Brent wanted
to end the partnership. Rick and Brent entered into a “Joint
Cattle 	and 	Farming 	Liquidation 	Agreement” 	(Liquidation
Agreement) in November 2020. The purpose of this agree-
ment was “solely to memorialize the terms by which Rick and
Brent will wind-down the joint cattle ownership, cattle feeding
operation, and joint farming operation.” Rick and Brent agreed
that “[a]ll proceeds from the sale of the Cattle must be depos-
ited into the Sebade Account [at FNBN].” Rick and Brent also
agreed to split the remaining share of jointly owned soybeans.
Rick was required to provide Brent with a full accounting from
the sale of distiller’s grain, and all proceeds were required to
be deposited in the joint FNBN account.
In February 2021, Rick and Brent executed a “Property
Valuation and Division Agreement.” This agreement contained
valuations and allocations of the former partners’ real estate,
trucking assets, Bancroft Custom Feeders assets, and Sebade
Brothers assets at the Emerson feedlot. In this agreement, Rick
and Brent agreed that
upon closing of the allocation and any necessary transfer
of all of the Property, Brent will owe Rick $75,011.58 as
an equalization payment (the “Equalization Payment”).
The Equalization Payment will not be made until the par-
ties negotiate and complete a final sale of Brent’s owner-
ship in Sebade Trucking, . . . Bancroft Grain, . . . and
Bancroft Custom Feeders . . . .
1. Pleadings
Brent, individually and derivatively on behalf of Sebade
Brothers, 	filed 	a 	complaint 	against 	Rick 	and 	Sarah 	on

- 407 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
March 31, 2021. The complaint was later amended to add more
detail. Brent’s amended complaint alleged that Rick and Sarah
controlled the books and accounting of the partnership, includ-
ing the ledgers and Cattle Inventory. Brent alleged that he
trusted Rick with the books and accounting for the partnership.
In the amended complaint, Brent’s claims against Rick and
Sarah were breach of the partnership duties of loyalty and care,
fraudulent and negligent misrepresentation, fraudulent conceal-
ment, conversion, unjust enrichment, breach of contract, and
judicial dissolution. Brent alleged Sarah was jointly liable with
Rick because Sarah engaged in a civil conspiracy with Rick
and because she aided and abetted Rick’s tortious conduct and
breaches of contractual and partnership duties.
As relevant to the statute of limitations and Brent’s claims
for fraud, Brent’s amended complaint identified numerous “fic-
titious or misleading” ledger entries. These entries date back
to November 15, 2016. Brent asserted that the “false, mislead-
ing and fictitious” payments Rick purported to make were not
within Brent’s reasonably diligent attention, observation, or
judgment. Brent asserted that Rick and Sarah controlled the
books and accounting for the partnership and that Brent trusted
Rick with the assets of the partnership. Brent claimed that, by
concealing the true nature of the ledger entries, Rick and Sarah
intended for Brent to make more than his fair share of pay-
ments. Brent asserted he reasonably relied on what Rick and
Sarah represented on the ledgers. Brent alleged that on or about
October 1, 2020, Rick provided copies of certain pages from
the ledgers, the review of which revealed several suspicious
transactions and entries.
Rick and Sarah answered, asserting several defenses, includ-
ing the statute of limitations, laches, accord and satisfaction,
release, and estoppel. Sarah asserted counterclaims against
Brent for compensation for Brent’s use of semi-truck trailers
and for compensation for alleged unpaid work she performed.
Rick asserted counterclaims for breach of contract against
Brent and entitlement to shares in the three limited liability

- 408 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
companies—Bancroft Grain, Bancroft Custom Feeders, and
Sebade Trucking; entitlement to funds from the sale of cattle;
entitlement to compensation for soybeans; and entitlement for
payments made for feed, equipment, and labor. Brent answered
Rick’s amended counterclaims, generally denying the allega-
tions and incorporating Brent’s claims and allegations from his
amended complaint.
2. Bench Trial Testimony and Evidence
In June 2024, the district court held a 4-day bench trial.
The court heard testimony from seven witnesses and received
numerous exhibits. We summarize the evidence on issues per-
tinent to this appeal.
(a) Brent
Brent testified about the nature of the partnership with
Rick, Sarah’s role, and the day-to-day operations of the busi-
ness, as outlined above. According to Brent, the “outside”
work he did included running the Emerson feedlot, running
the crop production side of the partnership, and handling
matters for Sebade Trucking. Brent testified that, as a result,
he was not in the office much during the day, but more so in
the evenings.
Brent testified that Rick handled the finances for the partner-
ship, including buying and selling cattle, which he kept record
of in the Cattle Inventory. Rick was solely responsible for mak-
ing entries in the Cattle Inventory, and he kept it locked in a
safe in his office, which safe Brent testified he did not have the
combination to.
Brent described how Sarah was primarily responsible for
making entries in the two ledgers, writing checks for Rick to
cover Rick’s expenses, and filling out presigned checks sup-
plied by Brent to cover his expenses. Brent explained that the
partnership would receive monthly feed bills from feedlots
where they fed cattle and that when the cattle were finished,
the partnership would receive a closeout. A closeout is a

- 409 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
summary of the performance of the cattle, cost of the cattle,
weight of the cattle, number of head of cattle, death loss, and
profit and total revenue of the cattle. Brent described how
Sarah would keep track of the running totals between the
brothers and how, to try and keep things even, she would “take
the total of [the brother who had paid fewer of the expenses]
and move it to zero” and give the other brother a credit to
make up the difference. Brent testified that he generally did
not review Sarah’s calculations, look through the prior entries
to ensure they were correct, or meet with either Rick or Sarah
to discuss the calculations.
There were two exceptions where Brent did review his side
of the ledgers. Brent explained that he reviewed his side of
the ledgers in July 2018. This review consisted of checking
for verified entries, missing entries, and looking for addition
errors. Brent stated that he discovered addition errors amount-
ing to about $1 million as already described. Brent testified
that his 2018 review did not involve looking at Rick’s side of
the ledgers, the Cattle Inventory, or Rick’s bank records. Brent
stated that, after this review, Rick would tell him to talk to
Sarah any time he had concerns about the ledgers.
Brent indicated it was only after FNBN alerted him in 2020
of the drastic change in his net worth that he became really
concerned. This was especially true because, according to
Brent, Rick was not forthcoming with partnership records,
which were in Rick’s possession. Further, Rick did not seem
concerned, and Brent was not getting any answers from Rick.
When Brent pressed Rick for answers, Rick would either
ignore him or ask, “[D]on’t you trust me?” Brent testified that
he had trusted Rick until then.
Brent informed Rick of his intention to end the partnership.
Brent testified he was able to make copies of only some of
the partnership records before Rick and Sarah removed the
records from the Emerson office. Brent testified that he did
not discover most of Rick’s and Sarah’s actions until after
the lawsuit was filed and he was able to obtain discovery.

- 410 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Brent stated that there were electronic records stored in the
Emerson office, but Rick and Sarah never supplied those
records, apparently due to the destruction of Sarah’s computer
by an ice storm. According to Brent, these electronic records
included bookkeeping software records used for billing on
the distiller’s grain business and for keeping track of checks
and invoices.
(i) False Ledger Entries
Brent testified that, after making copies of the ledgers follow-
ing the partners’ split, he discovered that on the Feed Ledger,
Rick had been given credit for a $488,000 feed bill payment
to Bancroft Custom Feeders in 2016 that did not correspond to
any feed invoice or to any payment from Rick’s bank accounts.
In fact, Brent’s checking account records showed that he made
two payments to Bancroft Custom Feeders during that time,
one for $221,591.46 and one for $246,694.67. A similar dis-
crepancy on Rick’s side of the Feed Ledger was found with
a January 2016 entry listed as paid to Pierce County Feeders,
where the actual payment of $470,000 was made to one of
Rick’s commodities accounts rather than for feed.
Brent also learned that Braxten’s ownership in cattle was
omitted from the copies of the Cattle Inventory that he received.
Brent discovered this by comparing copies of the original
Cattle Inventory he had received through discovery with the
copies he received from Rick and Sarah during the course of
the partnership. On Brent’s copies, there was no ownership
interest for Braxten indicated, while the copies of the originals
showed a 10-percent interest for Braxten. Brent also testified
he discovered that Braxten’s portion, as well as Sarah’s por-
tion, of the feed expenses was not fully paid.
Brent testified commodities trading was not part of the part-
nership business. Brent explained that he had never hedged
jointly owned cattle or jointly owned crops. Brent acknowl-
edged that he had a commodities trading account, which he
explained he opened with his son Jacob to help him out, but it

- 411 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
did not involve the partnership. Brent explained that he never
had a joint trading account with Rick, never signed a power of
attorney for Rick to trade on his behalf, and never discussed
commodities trading with Rick. Brent also explained that he
did not recall ever seeing an indication of profit or loss from
hedging on any closeouts from any feedlots where the partners
fed cattle.
Brent admitted on cross-examination that he incorrectly put
on his financial statement to the bank that he had made $1.6
million in 2017. Brent explained that the numbers he gave
FNBN on financial statements was based on what Rick would
tell him.
(ii) Distiller’s Grain Sales
Brent explained the partnership’s distiller’s grain business.
The normal procedure was that distiller’s grain would be pur-
chased out of the partnership’s joint FNBN account and hauled
by Sebade Trucking from the ethanol plants to either the part-
nership’s feedlots or third-party customers. Sarah would send
invoices, and the payments would be made to the partnership’s
joint FNBN account. Brent detailed how he discovered after
filing suit that, since before the October 2020 split, Rick and
Sarah had been diverting funds from the sale of distiller’s grain
that were partnership proceeds subject to the 50-50 split under
the Liquidation Agreement. He also learned that around the
same time, in May 2020, Rick, without informing or consult-
ing Brent, had applied for a trade name of Sebade Farms. It
is unclear if Rick was successful in obtaining this trade name.
In conjunction with this application, Brent learned that Rick
opened a new account at Liberty National Bank in May 2020
under the name “Sebade Farms.” Brent also learned that Sarah
instructed a distiller’s grain customer to begin making their
checks out to “Sebade Farms” rather than “Sebade Brothers”
as before.
Records from the Liberty National Bank account, which
were entered into evidence at trial, showed that the distiller’s

- 412 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
grain customers began making payments into that account,
rather than the joint Sebade Brothers account at FNBN in
2020, before the partners split. Records also showed that Rick
began writing checks to cover ledger expenses out of the
Liberty National Bank account, which contained partnership
funds from the sale of distiller’s grain.
Brent testified that, unbeknownst at the time to Brent, Rick
also opened an account at Farm Credit Services toward the end
of 2020. Records for the Farm Credit Services account, entered
into evidence at trial, show that the distiller’s grain payments
covered under the Liquidation Agreement were deposited in
this account as well.
(iii) $900,000 Withdrawal
Brent discussed how Rick and Sarah also diverted other
partnership funds. Brent testified that he learned during dis-
covery that Rick took a $900,000 withdrawal from the partner-
ship’s joint FNBN account in May 2017. Brent explained that
Rick did not return the $900,000, Brent never took a matching
$900,000 withdrawal, and Brent never received a half share of
the $900,000 withdrawal. On cross-examination, Rick’s coun-
sel asked Brent if the $900,000 withdrawal was for a margin
call, but Brent testified that he did not know and knew only
that the money ended up in Rick’s account.
(iv) Postsplit Distributions
Brent discussed the partnership’s split and the windup
agreements. Brent testified he discovered some of the pro-
ceeds from cattle sold under the Liquidation Agreement were
not deposited into the partnership’s joint FNBN account, as
required by the agreement. Instead, approximately $1.7 mil-
lion worth of cattle proceeds were placed in a trust account
belonging to Rick’s attorney at the time. Of that $1.7 million,
Brent stated, $696,000 was due to him under the terms of
the agreement.
Finally, Brent testified he did not receive his share of the
agreed-upon 50-50 split of the remaining partnership soybeans.

- 413 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
According to Brent, he received 2,782 bushels fewer than
the half he was to receive. Brent testified that, at $14.02 per
bushel, this damaged him by $39,000. On cross-examination,
Brent explained that he compared his scale tickets with Rick’s
to determine his shortage. Brent denied that there was a dif-
ference in quality of soybeans between what he took and what
Rick took from the grain bins.
(b) Rick
At trial, Rick agreed that the partnership was based on trust.
Rick recounted how he started farming with his and Brent’s
father and how the business expanded over the years, including
how his recordkeeping system developed. Rick explained the
partnership’s recordkeeping system in much the same way as
Brent. Rick described how feed bills were handled. He testified
he reviewed and approved the bills and Sarah would decide
which brother’s check covered the specific bill. Sarah would
make entries in the ledgers based on information she received
from Rick. Rick testified that he kept his checking account
records in a storage room in the upstairs of the office, so Brent
could have accessed his checking account records. Similarly,
Rick testified that, at the end of each year, the partnership
records would be stored in plastic totes in the storage room of
the office. Rick testified that he never refused to allow Brent to
review the records.
In terms of commodities trading, Rick testified that he
traded on behalf of the partnership. When asked why the trad-
ing account was only in Rick’s name, Rick claimed that it was
very difficult to have two people’s names on a commodity
trading account. On cross-examination, however, Rick admit-
ted to having joint commodities accounts with people other
than Brent.
Rick claimed that Brent discussed commodities trading with
Rick when Brent came into Rick’s office one morning to tell
him that Brent’s son Jacob would be handling Brent’s hedg-
ing from then on. Rick could not remember exactly when this

- 414 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
conversation occurred. Rick testified that he did not hide his
commodities trading from Brent but stated that they did not
talk about the markets much. Rick did not testify about any
other time he would have told Brent about the commodities
trading. Rick acknowledged he made ledger entries in the Feed
Ledger for commodities expenses but never discussed such
entries with Brent.
Rick generally testified at trial that he split commodity trad-
ing profits with Brent. However, Rick stated in his deposition
testimony, which he was confronted with, that he did not split
commodities profits with Brent; instead, the profits went into
Rick’s account. When asked if that was still true, Rick admit-
ted, “Probably, yes.”
When asked about the $470,000 entry for Pierce County
Feeders on Rick’s side of the Feed Ledger, Rick could not
explain why there was no corresponding invoice. Rick was
then shown a $470,000 payment to “RJ O’Brien,” a clearing-
house of the commodity board, for commodities trading around
that same time and acknowledged that “RJ O’Brien [had no]
relationship” with Pierce County Feeders.
The same was true of the $488,000 entry for Bancroft
Custom Feeders, which was also listed on Rick’s side of the
Feed Ledger. Again, Rick acknowledged that this was an
improper entry and should have reflected “RJ O’Brien” rather
than “Bancroft Custom Feeders.” Rick admitted that Brent, not
Rick, had actually made two payments to Bancroft Custom
Feeders during that time that added up to nearly $488,000.
Rick also admitted he took credit for these payments in his
discovery responses. Rick stated that Brent should have caught
the error but could not explain how Brent would have done
so when Rick’s credit for two checks that Brent paid did not
exactly add up to $488,000.
Rick explained that the $900,000 withdrawal from the joint
account at FNBN was to cover a margin call in commodities
trading. Rick explained an FNBN bank president knew about
this transaction. On cross-examination, Rick could not confirm

- 415 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
if he told Brent about it. Rick did not testify as to why the joint
partnership account was used to cover this margin call.
When asked about sale of distiller’s grain, Rick admitted he
switched incoming payments from the partners’ joint account
at FNBN to his new account at Liberty National Bank in
May 2020 for himself. Rick also admitted he used the Liberty
National Bank account to pay for feeder cattle and was credited
for those transactions on the Cattle Ledger. Rick justified these
actions, stating that Brent had the opportunity to do the same
thing but did not.
(c) Sarah
Sarah described how she started working for the partnership,
her roles within the partnership, and how the business was run.
Sarah described the recordkeeping process for the partnership
very similarly to Rick and Brent. For Rick, Sarah had signature
authority to write checks on his account to cover partnership
expenses. As for Brent, Sarah did not have signature authority
but was given presigned checks by Brent whereon she could
fill in the payee and amount. Sarah explained she would often
cover larger expenses with Brent’s presigned checks and the
smaller expenses with Rick’s checks, since she had signature
authority for Rick. On cross-examination, Sarah acknowledged
that she had made out one of Brent’s presigned checks in the
amount of $195,063.92 to “Roth Cattle and Land” in August
2020. Sarah admitted that this expense should have been
entered on Brent’s side of the Feed Ledger but was not. Sarah
described how her day-to-day responsibilities included mak-
ing entries in the two ledgers; keeping track of the brothers’
expenses; and, roughly weekly, totaling the ledgers “to try to
keep [the brothers] close.”
Sarah confirmed that Brent received copies of the partner-
ship records to review, not the originals. Sarah would make
these copies when a page became full. Sarah described how
Brent would review his side of the ledgers on the copies and
bring any corrections for her to make. Sarah testified that, on

- 416 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Rick’s side, every month, she would go through and compare
the ledgers to Rick’s checking account statement.
On cross-examination, Sarah acknowledged that Brent had
no role in managing the partnership’s accounting or finances.
Sarah 	also 	mentioned 	that 	Rick 	would 	sometimes 	report
his ledger expenses to her verbally, rather than through an
invoice, bill, or other document. One such verbal report was
a $1,054,000 entry on the 2016 Feed Ledger for a commod-
ity account. Rick also occasionally made entries in the ledgers
himself. Sarah was asked about the $470,000 entry for Pierce
County Feeders and the $488,000 entry for Bancroft Custom
Feeders noted on Rick’s side of the Feed Ledgers. Brent’s
counsel pointed out that those entries were identified by the
certified public accountant (CPA) for Rick and Sarah, Clint
Weeder, as commodities-related expenses. Sarah offered no
explanation as to why these commodity-related expenses were
reflected in the Feed Ledger.
(d) Kurt Meisinger
Kurt Meisinger, a licensed CPA with experience in auditing
partnerships and forensic accounting, testified as an expert wit-
ness for Brent. Meisinger spent approximately 250 hours exam-
ining the partnership records, bank account records, invoices,
depositions, and other materials related to the operation of the
partnership from 2016 through 2021.
Meisinger summarized that Rick had overstated his expenses
on cattle purchases and feed and had diverted partnership
funds to Rick’s account, that Sarah had profited from not pay-
ing her fair share for cattle and feed, and that Rick and Sarah
had both profited from Braxten’s share of the cattle by either
not paying their fair shares or receiving revenue in excess of
their fair shares.
Meisinger found that, in total, Brent was damaged by
$6,912,685.72, based on Rick’s improper ledger entries, diver-
sion of partnership funds to Rick’s personal accounts, and
nonpayment of proceeds from partnership cattle. Additionally,

- 417 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Meisinger 	found 	that 	the 	partnership 	was 	damaged 	by
$1,033,166.12, based on transactions related to Braxten, one-
half of which was owed to Brent, and that Sarah’s transac-
tions resulted in $585,361.46 of damages to the partner-
ship, again one-half of which ($292,680.73) was owed to
Brent. Meisinger’s testimony did not cover Brent’s damages
related to Rick’s $900,000 withdrawal from the joint FNBN
account, the deposit of $696,000 in proceeds from the sale
of joint cattle under the Liquidation Agreement into a trust
account, and Brent’s disputed share of soybeans from the
Liquidation Agreement.
(i) Ledgers
Meisinger testified that to verify or find support for expenses
recorded in the ledgers, he compared each entry to records
from the various bank accounts used by the parties. Meisinger
testified this method of verifying expenses is recognized in the
field of forensic accounting. Based on Meisinger’s examination,
Meisinger found that overstatements on Rick’s side of the Feed
Ledger from 2016 up until the partners split in October 2020
totaled $10,792,968.65. Rick’s Feed Ledger overstatements
from 2016 alone totaled $9,104,376.11. This total was largely
due to several large expenses that were actually commodities
trading expenses, rather than feed expenses. On the 2017 Feed
Ledger, Rick’s overstatements totaled $2,810,865.94. Again,
much of this total was owed to commodities trading, particu-
larly to two margin calls recorded on the ledger in May 2017.
On Brent’s side of the Feed Ledger from 2016 until the part-
ners split in October 2020, Meisinger found a total overstate-
ment of only $190,372.36.
On the Cattle Ledger, Meisinger found that Rick’s side was
overstated by $756,536.61 and Brent’s side was overstated
by $235,411.16. In contrast, in 2016, Rick’s side was over-
stated by just $10,124.52. In 2017, Rick’s overstatement was
$219,451.23, the majority of which was due to an unverified
entry listed as “Greenville” in March 2017 for $214,634.07.

- 418 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Meisinger testified that, after he disclosed to Rick the results of
his examination of the ledgers, he never received any checks or
statements to support the unverified entries.
Meisinger testified he did not consider any commodities
trading losses as partnership losses because the information
he reviewed showed that there were no trading accounts
shared by Rick and Brent; Rick did not identify Brent or
the partnership as having any interest in Rick’s trading; and
Brent did not grant a power of attorney for Rick to trade on
his behalf.
(ii) Braxten’s and Sarah’s Cattle
Regarding 	Braxten’s 	and 	Sarah’s 	interests 	in 	cattle,
Meisinger’s examination found discrepancies on their shares
of feed costs and their fair shares of proceeds. Deposits
showed, for example, that Braxten received $3,182,064.69
when he was owed only $2,448,422.62. These deposits began
in August 2017. Sarah, in contrast, received less than she
was owed for cattle proceeds, benefiting the partnership
by $709,872.66.
Meisinger’s examination showed that both Braxten and
Sarah had underpaid for feed expenses. Meisinger’s calcula-
tions found that Braxten’s cattle discrepancies damaged the
partnership in the amount of $1,033,166.12, half of which was
owed to Brent. Sarah’s cattle discrepancies damaged the part-
nership in the amount of $585,361.46, half of which was owed
to Brent.
(iii) Distiller’s Grain Diversion
Regarding 	distiller’s 	grain 	profit 	diversion, 	Meisinger
explained that Rick was depositing partnership funds in his
Liberty National Bank and Farm Credit Services accounts
and using such funds to cover Rick’s expenses on the ledgers.
These deposits were found when Meisinger reviewed Rick’s
bank records beginning in May 2020, before the partners
split, and through early 2021, covering deposits for partner-
ship assets covered in the Liquidation Agreement. Meisinger

- 419 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
found that Rick had deposited a total of $1,302,422.28 of
partnership funds into the Liberty National Bank account. Of
that amount, $708,196.83 was deposited before October 5,
2020, when Brent informed Rick of his intention to end the
partnership. Meisinger found that, beginning in December
2020, Rick deposited $518,674.64 of funds related to partner-
ship invoices or revenue that belonged to the partnership into
his personal Farm Credit Services account.
(e) Weeder
Weeder testified as an expert for Rick and Sarah. Weeder
is a CPA. Weeder became Rick and Sarah’s accountant in late
2020. Weeder testified he attempted to mirror the approach of
Meisinger so that he could reach his own conclusions and then
compare them to Meisinger’s.
In contrast to Meisinger, however, Weeder included com-
modities trading deficits as a partnership expense. Meisinger
apparently 	included 	commodities 	trading 	deficits 	because
Rick asked him to; Weeder acknowledged that he assumed
trading was part of the brothers’ partnership for the purpose
of his review.
On the Feed Ledger discrepancies, Weeder agreed with
Meisinger’s assessment that, without factoring in commodi-
ties expenses, Rick’s side of the feed ledger was overstated
by about $10 million. However, considering the commodi-
ties trading accounts, Weeder opined Rick would be owed
$3.6 million.
On cross-examination, Weeder conceded that transactions
related to commodities trading were reflected on the Feed
Ledger as payments to feedlots and not as payments to com-
modities accounts. Weeder agreed that someone looking at the
Feed Ledger could safely assume that the commodity payments
were actually feed payments made to Pierce County Feeders,
Bancroft Custom Feeders, and so on. Weeder acknowledged he
did not see any of the partnership’s feedlot closeouts that indi-
cated a profit or loss for commodities trading other than zero.

- 420 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Weeder also did not identify any specific lot or group of cattle
that was hedged by Rick.
Another difference in approach was Weeder’s use of Rick
and Brent’s Schedule F tax documents, rather than using the
ledgers, inventory, and bank account records. A Schedule F is
used to report farm income and expenses to the government.
According to Weeder’s review of the Schedule F documents,
Brent’s income from cattle was $1,404,057 more than Rick’s
from 	2016 	through 	2020. 	On 	cross-examination, 	Weeder
acknowledged that the brothers did not use Schedule F docu-
ments to determine amounts owed between them. Weeder
also acknowledged that Schedule F documents do not show
the whole picture and that determining the amounts required
more analysis.
Weeder acknowledged that his review did not include
Brent’s side of the ledgers, Rick’s accounts at Liberty National
Bank and Farm Credit Services, invoices from Pierce County
Feeders, or the distiller’s grain part of the business. In other
words, Weeder did not analyze whether Rick had diverted
partnership assets from distiller’s grain sales to Rick’s per-
sonal accounts.
As a result of Weeder’s review, he concluded that Brent
owed Rick $596,798.77 in partnership damages. Weeder did
not express an opinion as to whether, after Rick and Brent
entered into the dissolution agreements, Rick had distributed
partnership assets in accordance with those agreements.
Weeder concluded that Brent was owed a total $1,047,300.18
in relation to Braxten’s, Sarah’s, and Cory’s cattle transactions.
Between Rick and Brent, Weeder opined that Rick suffered
partnership damages in the amount of $596,798.77, owing
largely to the commodities trading expenses.
(f) Judith Ackland
Judith Ackland was called to testify as an expert witness for
Rick and Sarah. Ackland is an accountant who is a certified
financial planner but is not a CPA. Ackland testified that she

- 421 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
has worked in the cattle business since 1993. Ackland testified
that she was responsible for keeping records for a large feeder
cattle operation.
Ackland did not conduct a forensic accounting analysis
of the partnership records but presented more generalized
opinions about the partnership’s accounting practices in the
broader context of cattle feeding operations. Ackland testi-
fied that Rick and Sarah’s recordkeeping system did not fol-
low accounting standards but was typical for a family-owned
small cattle operation. Based on this recordkeeping, Ackland
explained that there were risks of mathematical errors and for-
getting to document transactions.
When asked about Rick and Brent’s use of a single bank
account, Ackland testified, “[I]f one brother was trying to do
something devious, they would not be in the same bank.” On
cross-examination, Ackland acknowledged that she had heard
that Rick opened a separate account at Liberty National Bank
but stated that she did not review those records.
3. District Court’s Judgment
The district court ordered judicial dissolution and, pursuant
to the Property Valuation and Division Agreement, entered a
monetary judgment for Rick to pay Brent $63,445.15, represent-
ing half of the net working capital of Bancroft Grain at the date
of division, and $49,948.80, representing half of the net work-
ing capital of Bancroft Custom Feeders at the date of division.
Pursuant to the Property Valuation and Division Agreement,
the court awarded Rick all remaining assets in Bancroft Grain,
Bancroft Custom Feeders, and Sebade Trucking.
Rick was denied relief on his remaining counterclaims.
The court rejected Rick’s counterclaim that Brent was liable
to Rick in the amount of $75,011.58, pursuant to the Property
Valuation and Division Agreement, because the condition prec-
edent of the sale of Brent’s ownership in the limited liability
companies had not been negotiated. Sarah’s counterclaims
were also dismissed.

- 422 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
(a) Damages
The district court entered judgment in favor of Brent and
against Rick and Sarah jointly and severally in the amount of
$8,886,876.51 in damages, plus costs and postjudgment inter-
est until satisfaction, under several theories of recovery and
causes of action as set forth further below.
The $8,886,876.51 judgment comprised seven discrete sums,
each corresponding to somewhat different acts and different
time periods.
(i) False Ledger Entries
The largest of these sums was $5,878,967.66 for Brent’s half
of the partnership’s damages from the false ledger entries. The
court found that Rick had “devised an unorthodox accounting
system . . . to document cattle ownership, purchase price, and
sale price,” which involved Sarah’s keeping two handwritten
expense ledgers, often in pencil. The court found that Rick
had “exclusive control over the Partnership’s financing and
accounting” and that he also “exclusively controlled the [cattle]
inventory,” keeping it in a locked safe and allowing Brent to
see only a copy rather than the original.
On Rick’s side of the ledgers, the court found that Sarah
verified expenses against Rick’s checking account and wrote a
checkmark next to entries verified. Because Brent had no way
to access Rick’s bank account information, the court found
“Brent had no way to verify Rick’s ledger entries.”
For Brent’s side of the ledgers, the court found that Sarah
wrote presigned checks Brent provided to her for his account
and entered the payees and amounts in the ledgers. The court
found that “Sarah had complete control over Brent’s side of
the ledgers—deciding which expenses to pay and entering the
expenses in the ledgers.”
The court referred to Meisinger’s and Weeder’s expert tes-
timonies that expenses and payments in the ledger should
be verified with invoices and bank records. The court noted
that both Meisinger and Weeder agreed that when one partner

- 423 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
entered unverified expenses in the ledgers, the other partner
was damaged by having to match the unverified expenses with
real money. And both experts, the court observed, had deter-
mined that Rick’s unverified entries totaled over $10 million.
The only difference in their ultimate calculations was due to
Weeder’s identifying ledger expenses as Rick’s commodities
trading losses and treating those losses as partnership expenses,
unlike other unverified entries.
The court chose Meisinger’s calculations over Weeder’s
after finding that Rick’s commodities trading was personal,
“had no place in the Partnership’s business,” and was not
properly chargeable to the partnership. Thus, Rick’s com-
modities trading losses were among the unverified entries
supporting damages.
In support of this conclusion, the court found that Rick had
never disclosed commodities trading losses or profits to Brent,
which the court distinguished from account balances that Rick
instructed Brent to include on financial statements for FNBN.
Further, Rick never provided Brent statements from commodi-
ties trading accounts, and Rick kept all profits realized from
his commodities trades for himself. The court pointed out that
neither Rick nor his expert witnesses had identified any part-
nership profits gained or losses diminished by Rick’s hedging.
The court also highlighted that Rick denied to his brokerages
that he was acting as an agent or that any other person or
entity had an interest in the trading accounts; that the feed-
yard closeout statements confirmed that the partnership had
placed no hedges on its cattle; and that Rick had not obtained
a power of attorney to engage in trading, as he had done for
his children, or opened a commodities trading account in the
partnership’s name or jointly with Brent, as Rick had with
other people.
The court found Weeder’s cross-referencing of ledger entries
with commodities trades problematic for other reasons as well.
The court pointed out that neither Weeder nor any other witness
could identify any trades with respect to any partnership-owned

- 424 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
commodities. Furthermore, Weeder used all Rick’s trades, even
those owned with other people and even though Rick engaged
in speculative nonhedging trades. Lastly, Weeder’s analysis
revealed that Rick misrepresented his commodities trading
losses in the ledger as “feed payments” and then falsely took
credit on the ledger for paying those expenses when Brent’s
checking account showed Brent had paid them.
(ii) Rick’s Withdrawal of $900,000
From Joint FNBN Account
The $8,886,876.51 judgment included $450,000, which was
half of the $900,000 that Rick took in May 2017 from the joint
partnership FNBN account with no corresponding withdrawal
or distribution to Brent. The court found that the $900,000
withdrawal by Rick was not a valid partnership expense. While
Rick testified that it was to cover a margin call at Rick’s per-
sonal trading brokerage, the court had already found that com-
modities trading was not part of the partnership.
(iii) Braxten Cattle Scheme
The $8,886,876.51 judgment also included $516,583.06
for Brent’s half of the damages attributable to Braxten’s con-
cealed cattle interests. The court found that Rick and Sarah
concealed from Brent a scheme by which they wrote Braxten’s
percentage interest, expenses, and proceeds in the inventory
kept in the safe and then gave Brent a false copy of the inven-
tory with Braxten’s percentage erased. Rick and Sarah then
deposited into accounts under Braxten’s name amounts greater
than Braxten’s actual cattle proceeds. Also, Rick and Sarah
did not pay Braxten’s proportionate share of costs for cattle in
which Rick and Sarah gave Braxten an interest, instead charg-
ing those amounts to the partnership. The deposits in excess
of revenue for Braxten totaled $733,642.07, and they failed to
pay $319,621.70 in expenses, less a $20,097.73 cost overpay-
ment. The court agreed with Meisinger’s determination that
Brent was entitled to half these amounts, or $516,583.06.

- 425 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
(iv) Sarah’s Cattle Underpayments
The judgment included $292,680.73, the court having found
that Sarah had failed to pay $585,361.46 of her agreed-upon
percentage share of cattle in which she had an interest and that
Brent was damaged by half that amount.
(v) Distiller’s Grain Profits Diversion
The judgment included $651,211.14, representing one-half
of the $1,302,422.28 of partnership funds from distiller’s grain
sales that Rick diverted into the Liberty National Bank account
before Rick and Brent entered into the Liquidation Agreement.
The judgment included an additional $382,506.92, which was
Brent’s half of partnership funds from distiller’s grain sales
diverted by Rick after the Liquidation Agreement.
The court found that Rick had admitted at trial to the scheme
whereby he diverted for his personal use all the partnership
profits from the sale of distiller’s grain to partnership custom-
ers, then used those funds to pay and get credit on his half
of the ledgers for his share of the partnership expenses. Rick
also attempted to reregister the partnership solely in his name
around that time.
(vi) Brent’s Share of Cattle Proceeds, $696,000,
Held in Rick’s Attorney’s Trust Account
The judgment encompassed Brent’s share of cattle proceeds
placed by Rick in his attorney’s trust account after Rick and
Brent entered into the Liquidation Agreement.
(vii) Soybean Shortfall
Lastly, the court included in the $8,886,876.51 judgment
$18,927 for the 2,700-bushel shortfall of the soybeans that Brent
was supposed to receive under the Liquidation Agreement.
(b) Theories of Liability and Causes of Action
The court then explained which conduct satisfied the ele-
ments of the different theories of recovery and causes of action
set forth in Brent’s complaint.

- 426 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
(i) Unjust Enrichment and Breaches of Fiduciary
Duties of Loyalty and Due Care
The court concluded that Rick and Sarah were jointly
liable under unjust enrichment and breaches of partnership
fiduciary duties of loyalty and due care by (1) making false
or improper entries in ledgers, (2) misrepresenting commodi-
ties trading losses as “feed” expenses, (3) taking credit for
expenses Rick never paid, (4) providing Brent with false
cattle inventory copies with Braxten’s interest erased, (5)
concealing Braxten’s interest and then underpaying expenses
and overpaying revenues for that interest, (6) diverting dis-
tiller’s grain revenues, (7) giving Rick credit for expenses
paid with money diverted from partnership distiller’s grain
revenues, (8) attempting to use the “Sebade Farms” name for
Rick’s own purposes, (9) taking $900,000 from the partner-
ship’s joint FNBN bank account to cover his personal broker-
age losses, and (10) generally failing to account to Brent and
concealing his dealings.
(ii) Conversion
The court found Rick and Sarah jointly liable under con-
version through the following acts of wrongful dominion: (1)
the false ledger expense payments, (2) diversion of Brent’s
half of the distiller’s grain proceeds, (3) taking Brent’s half
of the $900,000 from their joint partnership account, (4) hold-
ing Brent’s $696,000 in cattle proceeds from the Liquidation
Agreement, and (5) failing to distribute Brent’s full share of
the soybeans under the Liquidation Agreement.
(iii) Fraudulent and Negligent
Misrepresentation
The court found that Rick and Sarah were jointly lia-
ble under both negligent and fraudulent misrepresentation by
making false representations in the partnership ledgers, giv-
ing Rick credit for Rick’s commodities trading expenses by
falsely claiming them as feed expenses, giving Rick credit for

- 427 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
expenses associated with cattle groups never included in the
partnership, giving Rick credit for expenses paid with money
diverted from partnership distiller’s grain revenues, and giving
Brent inventory copies with Braxten’s interest erased.
(iv) Fraudulent Concealment
The court found Rick and Sarah were jointly liable under
fraudulent concealment by their actions concealing material
facts about the ledgers, inventories, distiller’s grain sale proceeds
diversion, bank accounts, and disposition of partnership assets.
The court elaborated that, in addition to partnership duties of
full and accurate disclosure between Rick and Brent, “Rick and
Sarah dealt with Brent in a relationship of extreme trust among
family members.” Brent relied on Sarah to truthfully enter and
verify Rick’s ledger entries, and “Brent had no way to know
about the information Rick and Sarah concealed from him.”
The court further found:
Brent had no access to the ledgers or to Rick’s bank
records, and Rick and Sarah led Brent to believe that
Brent could trust them. So Brent relied on the facts as
Rick and Sarah presented them, continuing to match led-
ger expenses and not question Rick’s dealings.
(v) Breaches of Contracts
The court found that Rick and Sarah both breached contracts
and were jointly liable for the breaches. Rick was found in
breach of the Liquidation Agreement for failing to deposit all
of the cattle proceeds in the joint FNBN account, for failing to
deposit distiller’s grain proceeds in the joint FNBN account,
and for not abiding by the 50-50 soybean split. Sarah was
found to have breached her contracts with the partnership by
not paying her percentage share of cattle expenses.
(c) Joint and Several Liability
The court’s determination of joint and several liability for the
damages caused by breaches of partnership duties, fraudulent

- 428 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
misrepresentation, negligent misrepresentation, fraudulent con-
cealment, conversion, breaches of contracts, and unjust enrich-
ment was founded in principles of civil conspiracy and aiding
and abetting.
The court found relevant that Rick and Sarah had “com-
plete control over the ledger and inventory entries.” The court
further described Rick’s and Sarah’s “coordinated efforts to
misrepresent ledger entries in Rick’s favor and to Brent’s
detriment, divert Partnership assets to Rick, [and] breach the
Liquidation Agreement.” The court elaborated, “Rick provided
false ledger entries that Sarah entered in the ledgers, knowing
the falsity and/or falsely check-marking her entry verifica-
tions. Sarah’s checkmarks next to Rick’s false entries ties
[sic] her to those entries.” Sarah had physically made the false
feed-ledger payments on Rick’s side of the ledger that were
really Rick’s commodities trading losses and checkmarked
them as confirming verification.
The court found that Sarah participated in providing cop-
ies of inventories with Braxten’s interest erased and ledger
entries for “feed” that were, in fact, for Rick’s commodities
brokerage losses. The court found that Sarah, jointly with Rick,
conducted all the transactions with respect to Braxten that used
joint accounts to underpay expenses to the partnership and take
excessive revenues from the partnership.
The court found that Sarah effectuated the distiller’s grain
revenue diversions. It said, “Rick diverted to his Liberty
[National Bank] and Farm Credit [Services] accounts, and
Sarah gave Partnership customers instructions aimed at effec-
tuating and concealing the diversion.” Sarah had also check-
marked those entries to show she verified them from the
Liberty National Bank account. She had sent the invoices to
partnership customers for the sales conducted through Rick’s
Liberty National Bank account and never produced them dur-
ing discovery, claiming they were destroyed during an ice
storm. The court also found that Sarah effectuated the cattle
sale proceeds diversion to Rick’s attorney’s account.

- 429 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
(d) Statute of Limitations
The court found that Rick and Sarah’s affirmative defense
of the statute of limitations may have merit as to those dam-
ages incurred more than 4 years prior to the filing of Brent’s
complaint under the claims for breaches of partnership duties,
negligent misrepresentation, conversion, Sarah’s breach of con-
tract, and unjust enrichment. The court elaborated that Brent
never asserted tolling for those claims, and the court made no
findings on tolling.
The court found the statute of limitations respecting those
damages under those claims was not dispositive, however,
because the damages incurred before March 31, 2017, were not
time barred under the claims of fraudulent misrepresentation
and fraudulent concealment. The court explained that, under
Neb. Rev. Stat. § 25-207(4) (Reissue 2016), the 4-year statute
of limitations for a claim of fraud does not accrue until the
discovery of the fraud. The trial court found that Brent did not
discover the fraud until 2020 and that he commenced the action
well within the 4-year statute of limitations.
(e) No Accord and Satisfaction,
Release, or Estoppel
The court also rejected Rick and Sarah’s claim that Sarah’s
annual accounting action of zeroing out one side of the ledger
gave rise to accord and satisfaction, release, and estoppel. The
court found that when, at the end of each year, Sarah reduced
the lower contributing partner’s ledger column total to zero
and entered the contribution difference in the other partner’s
column, she did not discuss the “math” involved with either
Rick or Brent, and that the “math never involved ledger
entry verification.”
The court found no definite offer and unconditional accep-
tance as necessary for a settlement agreement. It also found
that Brent lacked the information necessary to assess the risks
and benefits of settling and to meaningfully decide whether to
settle the controversy. The court reasoned that Rick and Sarah’s

- 430 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
release defense was barred because “[t]he ledger transactions
involved fraud, deceit, oppression, and unconscionable conduct
by Rick and Sarah.”
In denying the estoppel defense, the court found that Brent
did not know of the false representations of brokerage losses
as feed expenses, which were part of this annual accounting;
Brent did not benefit from Sarah’s “math”; and Rick and Sarah
failed to show reliance on Brent’s alleged acceptance of the
annual accounting.
Further, the court found Rick and Sarah’s counterclaims
were barred under the doctrine of unclean hands from Rick
and Sarah’s generally fraudulent and unconscionable conduct.
Indeed, the court found that Sarah’s annual zeroing of the
ledgers only harmed Rick by exacerbating the ledger overstate-
ments with her incorrect calculations.
3. Rick and Sarah’s Motion to Alter and
Amend and Motion for New Trial
Following the district court’s judgment, Rick and Sarah
moved to alter and amend the judgment and for a new trial.
Rick and Sarah asserted that the district court had made
several incorrect legal and factual findings warranting altera-
tion of the judgment. Rick and Sarah moved for a new trial
without giving specific reasons warranting a new trial, but
citing to Neb. Rev. Stat. § 25-1142(4) through (6) (Reissue
2016). After a hearing, the district court denied both of Rick
and Sarah’s posttrial motions. Rick and Sarah timely filed
this appeal.
III. ASSIGNMENTS OF ERROR
Rick and Sarah assign that the trial court erred when it
(1) rendered judgment for Brent against Rick and Sarah and
denied judgment for Rick and Sarah; (2) found that commodi-
ties trading, used by Rick to hedge all partnership cattle, was
outside the partnership’s scope, so hedging losses were Rick’s
alone and not shared by Brent; (3) found Rick had exclusive

- 431 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
control over partnership accounting and funds, including cattle
inventory records; (4) found that Sarah had complete control
over Brent’s side of the cattle feeding ledgers and that Brent
had no access to Rick’s side; (5) found that all incorrect led-
ger expense entries should be charged against Rick and Sarah;
(6) found an incorrect amount due for sums associated with
Sarah’s cattle and Braxten’s cattle that were not reimbursed;
(7) found unjust enrichment, an implied contract theory, when
actual contracts and a partnership existed; (8) failed to find
annual settlements releasing all matters for years prior to 2020,
when the brothers separated; (9) failed to find Brent owed Rick
$75,011.58 to conclude equalization of the brothers’ Property
Valuation and Division Agreement; (10) failed to find that
claims for losses occurring more than 4 years before suit was
filed were barred by the statute of limitations; (11) found that
Sarah, an employee, was liable for partnership debt; and (12)
failed to sustain Rick and Sarah’s motion to alter and amend
the judgment.
IV. STANDARD OF REVIEW
[1] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly wrong. After a bench trial of a
law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the suc-
cessful party and resolves evidentiary conflicts in favor of the
successful party. 1
[2] In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to
be given their testimony; an appellate court will not reevalu-
ate the credibility of witnesses or reweigh testimony but will
review the evidence for clear error. 2
1 White v. White, 316 Neb. 616, 6 N.W.3d 204 (2024).
2 Benjamin v. Bierman, 305 Neb. 879, 943 N.W.2d 283 (2020).

- 432 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
[3] In an appeal of an equity action, an appellate court tries
factual questions de novo on the record and reaches a conclu-
sion independent of the findings of the trial court; provided,
where the credible evidence is in conflict on a material issue of
fact, the appellate court considers and may give weight to the
fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another. 3
[4] Which statute of limitations applies is a question of law. 4
[5] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the trial court on the issue of the statute of limitations
normally will not be set aside by an appellate court unless
clearly wrong. 5
[6] An appellate court reviews the denial of a motion for a
new trial or, in the alternative, to alter or amend the judgment,
for an abuse of discretion. 6 A judicial abuse of discretion exists
if 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. 7
V. ANALYSIS
Rick argues that the district court erred when it failed to
find he was owed $75,011.58 from Brent to settle the Property
Valuation and Division Agreement. On damages, Rick and
Sarah argue the district court erred in several ways, to wit,
by finding the statute of limitations did not bar Brent’s claims
that predated March 31, 2017; by failing to find Brent’s
claims were settled and released as a result of Sarah’s yearend
3 PSK v. Legacy Outdoor Advertising, 318 Neb. 1, 13 N.W.3d 81 (2024).
4 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
5 Zook v. Zook, 312 Neb. 128, 978 N.W.2d 156 (2022).
6 Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022).
7 Id.

- 433 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
zeroing of the ledgers; by concluding that commodities trad-
ing was not a necessary part of the partnership, finding all
improper ledger entries should be charged to Rick and Sarah,
and adopting Meisinger’s accounting; by finding liability for
unjust enrichment when actual contracts existed; by finding
Rick and Sarah jointly and severally liable; and by failing to
grant their motion to alter and amend the judgment. For the
reasons discussed below, we find no merit to any of these
arguments. While the parties dispute whether the standard
of review under the various theories of recovery determined
below is clearly erroneous or de novo, we conclude that, under
the facts of this case, it makes no difference. Under either
standard, deferring to the district court’s determinations of
credibility, we find no error in its factual findings and affirm
its judgment.
1. Statute of Limitations and
“Complete Control”
We first address Rick and Sarah’s argument that the district
court erred in finding that the damages corresponding to acts
of fraudulent misrepresentation and fraudulent concealment
occurring before March 31, 2017, were not time barred under
§ 25-207(4). Section 25-207 states: “The following actions
can only be brought within four years: . . . (4) an action for
relief on the ground of fraud, but the cause of action in such
case shall not be deemed to have accrued until the discovery
of the fraud . . . .”
[7] “Discovery,” in the context of statutes of limitations,
refers to the fact that one knows of the existence of an injury
or damage and a wrongful act. 8 “Discovery can be actual or
constructive.” 9 Constructive discovery occurs when the party
discovers facts sufficient to put a person of ordinary intelligence
8 See Mai v. German, 313 Neb. 187, 983 N.W.2d 114 (2023).
9 John P. Lenich, Nebraska Civil Procedure § 5:11 at 206 (2025) (accrual of
tort claim).

- 434 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
and prudence on an inquiry which, if pursued, would lead the
person to discover the fraud. 10
[8,9] Thus, we have explained that, pursuant to § 25-207(4),
an action for fraud does not accrue until there has been a dis-
covery of the facts constituting the fraud, or facts sufficient
to put a person of ordinary intelligence and prudence on an
inquiry which, if pursued, would lead to such discovery. 11
Whatever fairly puts a person on inquiry is sufficient notice,
where the means of knowledge are at hand; and if the plaintiff
omits to inquire, the plaintiff is then chargeable with all the
facts which, by a proper inquiry, might have been ascertained. 12
[10,11] In other words, notice of facts that under the cir-
cumstances would lead an ordinarily prudent person to make
an examination which, if made, would disclose the exis-
tence of other facts is sufficient notice of such other facts. 13
If the fraud or mistake ought to have been discovered, the
statute will run from the time such discovery ought to have
been made. 14
[12] Where an action is brought for relief on the ground of
fraud after the lapse of 4 years from the date of the fraudulent
transaction, it is the plaintiff’s burden to allege and prove facts
as to the failure to discover the fraudulent transaction and pros-
ecute within 4 years. 15
The court awarded damages under fraudulent misrepresenta-
tion and fraudulent concealment, which corresponded to false
10 See, id.; Fitzgerald v. Community Redevelopment Corp., supra note 4.
11 Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94, 917 N.W.2d
821 (2018).
12 See Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988).
13 See id.
14 Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992).
15 See, Lee v. Brodbeck, 196 Neb. 393, 243 N.W.2d 331 (1976); Jameson v.
Graham, 159 Neb. 202, 66 N.W.2d 417 (1954); Westervelt v. Filter, 2 Neb.
(Unoff.) 731, 89 N.W. 994 (1902). See, also, Annot., 118 A.L.R. 1002
(1939).

- 435 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
ledger entries in a total amount of $5,878,967.66, half of
the $900,000 diverted from the joint FNBN account, and
the diversion of Brent’s half of the distiller’s grain proceeds
before and after the Liquidation Agreement in a total amount
of $1,033,718.06. These encompassed all the damages corre-
sponding to acts occurring before March 2017.
Rick and Sarah argue the district court erred in finding these
damages were not barred by the statute of limitations, because
Brent was on inquiry notice as early as 2016 that the ledger
entries were false. Rick and Sarah explain that Brent “knew of
the handwritten ledgers, large differences between the brothers,
and the year-end settlements” 16 and that “Brent had only to ask
to receive.” 17 Instead, Brent “did not look.” 18 We disagree with
both Rick and Sarah’s characterizations of the facts and of their
legal significance.
The district court did not err in its various factual findings
showing that Brent lacked constructive discovery of any claims
against Rick and Sarah before March 31, 2017. Contrary to
what Rick and Sarah suggest, there was no evidence that Brent
knew before 2018 that there were any meaningful discrepan-
cies in the ledgers. Brent was given copies of the ledgers, but
the ledgers themselves did not reveal their falsity. The false
entries were discoverable only by attempting to verify them
with invoices received and kept by Sarah and payments from
Rick’s and Sarah’s individual bank accounts. The district court
found that “Rick and Sarah led Brent to believe that Brent
could trust them” and that as a result, Brent reasonably “relied
on the facts as Rick and Sarah presented them, continuing
to match ledger expenses and not question Rick’s dealings.”
Thus, Brent was not on notice that something was amiss that
he should investigate.
16 Brief for appellants at 38.
17 Id. at 30.
18 Id. at 31.

- 436 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Also, the district court’s findings show that Brent did not
have the means of knowledge at hand had he tried to inves-
tigate. Specifically, the district court found that Rick had
“exclusive control over the Partnership’s finances and account-
ing” and that Rick “exclusively controlled the [cattle] inven-
tory,” keeping it in a locked safe and allowing Brent to see
only copies rather than the originals. Further, the court found
that Brent had no access to Rick’s bank records, that “Sarah
had complete control over Brent’s side of the ledgers—decid-
ing which expenses to pay and entering the expenses in the
ledgers”—and that Sarah had “complete control over the led-
ger and inventory entries.”
The district court found that Brent had “no way to know
about the information Rick and Sarah concealed from him.”
Understandably, the court put little stock in Rick’s and Sarah’s
assertions that they would have provided Brent with whatever
documents he requested, which would have revealed their
fraudulent activities. The district court did not find either Rick
or Sarah to be particularly credible. It is also worth noting that
Rick and Sarah denied Brent full access when he tried to exam-
ine and copy all partnership records.
[13] We recognize the district court did not make these
factual findings in its discussion of the statute of limitations,
but, instead, elsewhere in its order—because the court did not
explicitly address constructive discovery. Rick and Sarah do
not suggest, however, that we cannot affirm the district court’s
judgment if the facts found by the district court ultimately
support it. An appellate court has the discretion to affirm, as
it deems appropriate, a correct result that was reached below
for the wrong reason. 19 We find that the district court correctly
concluded that the damages incurred before March 2017 for
fraudulent misrepresentation and concealment were not barred
by the statute of limitations.
19 Hauxwell v. Middle Republican NRD, 319 Neb. 1, 21 N.W.3d 34 (2025).

- 437 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Under a different assignment of error, Rick and Sarah argue
the district court’s factual findings of “complete control” are
erroneous because Rick and Sarah testified Brent had access
to all records until after they commenced formal separation
and because Brent made unspecified “admissions.” 20 Rick and
Sarah argue that “[w]ithout these findings, the Judgment falls,”
and that “[w]ith access established, Brent’s claim for conceal-
ment fails.” 21 We find no error respecting these factual find-
ings, which call into question the validity of the district court’s
judgment on fraudulent concealment or any other claim. None
of Brent’s claims require exclusive control.
[14] To prove fraudulent concealment, a plaintiff must prove
these elements: (1) The defendant had a duty to disclose a
material fact; (2) the defendant, with knowledge of the material
fact, concealed the fact; (3) the material fact was not within the
plaintiff’s reasonably diligent attention, observation, and judg-
ment; (4) the defendant concealed the fact with the intention
that the plaintiff act or refrain from acting in response to the
concealment or suppression; (5) the plaintiff, reasonably rely-
ing on the fact or facts as the plaintiff believed them to be as
a result of the concealment, acted or withheld action; and (6)
the plaintiff was damaged by the plaintiff’s action or inaction
in response to the concealment. 22
[15] A fraudulent misrepresentation claim requires a plain-
tiff to establish the following elements: (1) A representation
was made; (2) the representation was false; (3) when made,
the representation was known to be false or made recklessly
without knowledge of its truth and as a positive assertion; (4)
the representation was made with the intention that the plaintiff
20 Brief for appellants at 29, 30.
21 Id. at 29, 31.
22 Knights of Columbus Council 3152 v. KFS BD, Inc., 280 Neb. 904, 791
N.W.2d 317 (2010).

- 438 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
should rely on it; (5) the plaintiff did so rely on it; and (6) the
plaintiff suffered damage as a result. 23
The same facts that support Brent’s lack of inquiry notice
for purposes of the statute of limitations support his rea-
sonable reliance on the material facts as Brent believed
them to be and a conclusion that the false ledgers were
not within Brent’s reasonably diligent attention, observation,
and judgment.
2. Annual Settlements
The district court did not err by rejecting Rick and Sarah’s
defense to all damages incurred before 2020, under the theory
that the annual zeroing of the ledgers constituted annual settle-
ments of all accounts and claims, which settlements could not
later be rescinded.
[16,17] We have held that a settlement agreement is subject
to the general principles of contract law. 24 To have a settlement
agreement, there must be a definite offer and an unconditional
acceptance. 25 Further, a fundamental and indispensable basis
of any enforceable agreement is that there be a meeting of the
minds of the parties as to the essential terms and conditions of
the proposed contract. 26
[18] Rick and Sarah rely on Fleischer v. Broders 27 to support
their settlement argument. In Fleischer, brothers and a third
party in a partnership met annually to review their sales, pur-
chases, and other records. The partners each testified that they
were satisfied with the settlements at the end of each year. 28
Based on these settlements, we held that the parties could not
23 Henderson State Co. v. Garrelts, 319 Neb. 485, 23 N.W.3d 444 (2025).
24 In re Estate of Wiggins, 314 Neb. 565, 992 N.W.2d 429 (2023).
25 Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020).
26 Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015).
27 Fleischer v. Broders, 178 Neb. 723, 135 N.W.2d 5 (1965).
28 Id.

- 439 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
reexamine the charges and credits agreed to in the absence of
clear and convincing evidence of error or mutual mistake. 29
We said, “‘“The law favors and encourages settlements, and
in the absence of fraud, error, or mistake, they should not be
set aside.”’” 30
There was no evidence in Fleischer, outside of some small
plain errors, that the end-of-year settlements contained misin-
formation, let alone evidence of fraud. Under the Restatement
(Second) of Contracts, there is no meeting of the minds,
and, thus, no effective assent, when there has been nondis-
closure equivalent to a misrepresentation in a relationship of
trust and confidence. 31 The Restatement (Second) of Contracts
also explains:
If a misrepresentation as to the character or essential
terms of a proposed contract induces conduct that appears
to be a manifestation of assent by one who neither knows
nor has reasonable opportunity to know of the character
or essential terms of the proposed contract, his conduct is
not effective as a manifestation of assent. 32
Unlike the partners in Fleisher, Rick and Brent did not meet
to compare records at the end of every year, which records
they then settled. Instead, Sarah, on her own, made the adjust-
ments to the ledgers and gave credit to one brother or the
other according to her calculations. As the district court found,
Brent lacked the information necessary to assess the risks
and benefits of settling and to meaningfully decide whether
to settle the controversy. Furthermore, the court found that
“[t]he ledger transactions involved fraud, deceit, oppression,
and unconscionable conduct by Rick and Sarah.” While Rick
and Sarah argue that courts should not upset settled matters
29 Id.
30 Id. at 729, 135 N.W.2d at 9-10.
31 See Restatement (Second) of Contracts § 161(d) (1981). See, also, id.,
§ 161, comment a.
32 Id., § 163 at 443.

- 440 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
between partners, that reluctance does not apply when one
partner engages in fraudulent behavior. 33 Because Brent did
not have full knowledge of the nature of Rick’s ledger entries,
there can be no settlement to bar his claims against Rick and
Sarah. The district court properly denied Rick’s defense of
annual settlements.
3. Commodities Trading
The district court did not err in concluding that Rick’s com-
modities trading activities should be excluded in determining
Brent’s damages under the various theories of recovery and
causes of action presented.
[19] In arguing the district court erred, Rick and Sarah first
focus on whether he had authority under Nebraska’s Uniform
Partnership Act of 1988 34 to engage in commodities trading
on behalf of the partnership. Section 67-413 of the act states
in part:
(1) Each partner is an agent of the partnership for the
purpose of its business. An act of a partner, including
the execution of an instrument in the partnership name,
for apparently carrying on in the ordinary course the
partnership business or business of the kind carried on by
the partnership binds the partnership, unless the partner
had no authority to act for the partnership in the particular
matter and the person with whom the partner was dealing
knew or had received a notification that the partner lacked
authority; and
(2) An act of a partner which is not apparently for
carrying on in the ordinary course the partnership business
or business of the kind carried on by the partnership
binds the partnership only if the act was authorized by
the other partners.
33 See Fleischer v. Broders, supra note 27.
34 Neb. Rev. Stat. § 67-401 et seq. (Reissue 2018).

- 441 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
(Emphasis supplied.) The scope of an agent’s authority is a
question of fact. 35
Rick’s focus on § 67-413 is misleading, because the court’s
findings were not only about Rick’s ability to act as an
agent of the partnership when engaging in commodities trad-
ing. It was also about whether Rick did, in fact, do so. The
court found, summarized, that there was never any agreement
between Rick and Brent to engage in commodities trading,
but, also, that Rick did not engage in commodities trading
for the partnership. The court found that Rick hid his per-
sonal commodities trading losses as “feed payments.” Rick
thereby fraudulently made the partnership cover Rick’s per-
sonal losses associated with Rick’s commodities trading that
was conducted solely for Rick’s own benefit. The district
court found that Rick’s commodities trading had “no place in
the Partnership’s business” and was instead Rick’s personal
endeavor. We agree.
4. Including All Unverified Feed
Ledger Entries in Damages
We also find no merit to Rick and Sarah’s contention
that the district court erred in determining damages based
on Meisinger’s calculations instead of Weeder’s. Rick and
Sarah argue that Meisinger’s calculations were inaccurate
because “the feed ledger was not kept with pinpoint preci-
sion like a general ledger,” including “legitimate amounts”
consisting of round numbers, combinations of invoices, “and
shortcuts that did not, by design, coincide precisely with
checking accounts.” 36
[20] The determination of the weight that should be given
expert testimony is uniquely the province of the fact finder. 37
35 Elting v. Elting, 288 Neb. 404, 849 N.W.2d 444 (2014).
36 Brief for appellants at 31.
37 Benjamin v. Bierman, supra note 2.

- 442 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
The court gave more weight to Meisinger’s calculations than
Weeder’s in part due to Weeder’s inclusion of commodities as
partnership expenses, including those misrepresented as feed
expenses. As we have already discussed, the court properly
found that commodities trading was not part of the partner-
ship’s business.
5. Weeder’s Calculations Versus Meisinger’s
Calculations of Deficit for Cattle Under
Sarah’s, Cory’s, and Braxten’s Names
Somewhat similarly to their argument that the court should
have used Weeder’s calculations on Feed Ledger damages,
Rick and Sarah argue the court erred in using Meisinger’s cal-
culations of damages for underpayments in the Cattle Ledgers
for Sarah’s, Cory’s, and Braxten’s cattle. Rick and Sarah point
to Weeder’s workpapers, entered into evidence at trial, as prov-
ing his figures were “mathematically correct” and generally
assert that “Meisinger’s are not.” 38 However, Rick and Sarah
do not point to evidence that Meisinger made mathematical
errors in calculating the total sums underpaid on the Cattle
Ledgers under the data Meisinger collected. We find no merit
to this assignment of error.
6. Sarah’s Joint Liability
Rick and Sarah’s arguments that the court erred in imposing
joint and several liability also lack merit. Rick and Sarah argue
that Sarah could not be liable for partnership debt and imbal-
ances, because she was not a partner. The court found Sarah
liable under principles of conspiracy and aiding and abetting
for those damages corresponding to Brent’s claims of fraudu-
lent misrepresentation, fraudulent concealment, negligent mis-
representation, conversion, breach of implied duties of loyalty
and due care, and breach of contract.
38 Brief for appellants at 32.

- 443 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
[21-24] A civil conspiracy is a combination of two or more
persons to accomplish by concerted action an unlawful or
oppressive object, or a lawful object by unlawful or oppres-
sive means. 39 A claim of civil conspiracy requires the plaintiff
to establish that the defendants had an expressed or implied
agreement to commit an unlawful or oppressive act that consti-
tutes a tort against the plaintiff. 40 A civil conspiracy is action-
able only if the alleged conspirators actually committed some
underlying misconduct. 41 That is, a conspiracy is not a separate
and independent tort in itself; rather, it depends upon the exis-
tence of an underlying tort. 42
[25-29] Liability for civil conspiracy is in substance the
same thing as aiding and abetting liability. 43 A claim of aid-
ing and abetting is that “in addition to persons who actually
participate in [concerted wrongful action], persons who aid,
abet, or procure the commission thereof, are subject to a civil
action therefor.” 44 We have previously said claims of both civil
conspiracy and aiding and abetting are essentially methods for
imposing joint and several liability on all actors who commit-
ted a tortious act or any wrongful acts in furtherance thereof. 45
Like conspiracy, aiding and abetting is not a tort in itself
and requires an underlying actionable tort to be actionable. 46
Without an underlying tort, there can be no cause of action for
39 George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
40 Id.
41 Id.
42 Id.
43 Bojanski v. Foley, 18 Neb. App. 929, 798 N.W.2d 134 (2011).
44 Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 701,
900 N.W.2d 909, 924 (2017) (internal quotation marks omitted).
45 Id.
46 See id.

- 444 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
conspiracy to commit a tort or aiding and abetting the commis-
sion of a tort. 47
Rick and Sarah do not specifically argue that there was
insufficient evidence to support the district court’s findings
that Sarah engaged in concerted action with Rick toward an
unlawful or oppressive object, or a lawful object by unlaw-
ful or oppressive means, or that there was insufficient evi-
dence she aided, abetted, or procured the commission of the
wrongful acts. Rick and Sarah argue only that Sarah cannot
be held liable for anything other than what she owed under
her and Braxten’s cattle interests, because she was not a part-
ner. Their elaboration on this assertion is somewhat difficult
to decipher.
Rick and Sarah appear to argue that § 67-425 does not
authorize actions against nonpartners. Section 67-425 provides:
(1) A partnership may maintain an action against a
partner for a breach of the partnership agreement, or for
the violation of a duty to the partnership, causing harm to
the partnership.
(2) A partner may maintain an action against the
partnership or another partner for legal or equitable
relief, with or without an accounting as to partnership
business, to:
(a) Enforce the partner’s rights under the partnership
agreement;
(b) Enforce the partner’s rights under the Uniform
Partnership Act of 1998, including:
(i) The partner’s rights under section 67-421, 67-423,
or 67-424;
(ii) The partner’s right on dissociation to have the
partner’s interest in the partnership purchased pursuant to
section 67-434 or enforce any other right under sections
67-431 to 67-433 or 67-434 to 67-438; or
47 See Henderson State Co. v. Garrelts, supra note 23.

- 445 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
(iii) The partner’s right to compel a dissolution and
winding up of the partnership business under section
67-439 or enforce any other right under sections 67-439
to 67-445; or
(c) 	Enforce 	the 	rights 	and 	otherwise 	protect 	the
interests of the partner, including rights and interests
arising independently of the partnership relationship.
(3) The accrual of, and any time limitation on, a right
of action for a remedy under this section is governed by
other law. A right to an accounting upon a dissolution and
winding up does not revive a claim barred by law.
Rick and Sarah also cite to deNourie & Yost Homes v. Frost 48
for the assertion that “Sarah may not be liable for the account
imbalance as she had no duty as a non-partner to disclose Rick’s
personal data . . . .” 49 Finally, they cite to the Restatement
(Second) of Torts 50 and Palmer v. Maxwell. 51
[30] It is unclear what relevance Palmer has to the current
case, as it concerned pleadings and denials and has not been
cited to since it was decided. As for their reference to deNourie
& Yost Homes, Rick and Sarah appear to refer to the section
of that opinion where we explained, citing to the Restatement
(Second) of Torts § 551, that a “party to a business transac-
tion” can be liable to another party for failing to disclose a fact
that he or she knows may justifiably induce the other to act or
refrain from acting in the transaction, but only if the nondis-
closing party was under a duty to the other to exercise reason-
able care to disclose the fact at issue. 52
[31,32] But even if we assume that, as a nonpartner, Sarah
was not a party to the business transaction for purposes of
48 deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).
49 Brief for appellants at 39.
50 Restatement (Second) of Torts § 551 (1977).
51 Palmer v. Maxwell, 11 Neb. 598, 10 N.W. 524 (1881).
52 deNourie & Yost Homes v. Frost, supra note 48, 289 Neb. at 148, 854
N.W.2d at 311.

- 446 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
liability under the Restatement (Second) of Torts § 551 and was
therefore not liable for fraudulent concealment, such fraudulent
concealment was not the only underlying claim for which the
court found Sarah jointly and severally liable. The damages
attributable to fraudulent concealment were also awarded under
other theories of recovery, such as fraudulent misrepresentation
and conversion. We note that while mere silence cannot con-
stitute fraudulent misrepresentation absent a duty to disclose,
half-truths can. 53 Under fraudulent misrepresentation, to reveal
some information on a subject triggers the duty to reveal all
known material facts. 54
[33] Nothing in § 67-425 precludes this liability, as noth-
ing in § 67-425 states that a partner cannot bring claims to
vindicate rights existing outside of the partnership agreement
or the Uniform Partnership Act of 1988, and statutes effect-
ing a change in the common law should be strictly con-
strued. 55 The court found Sarah jointly liable for the underlying
torts of fraudulent misrepresentation, negligent misrepresenta-
tion, conversion, breach of implied duties of loyalty and due
care, and breaches of contracts. Even if we assume breach
of the Liquidation Agreement is encompassed exclusively by
§ 67-425, § 67-425 does not, on its face, preclude joint and
several liability by a nonpartner for said breach under theories
of conspiracy or aiding and abetting, which are not separate
claims but acknowledge shared legal responsibility for the
underlying legal claim. 56
[34] In deNourie & Yost Homes, we also observed that “a
claim of civil conspiracy requires the plaintiff to establish that
the defendants had an expressed or implied agreement to com-
mit an unlawful or oppressive act that constitutes a tort against
53 See Knights of Columbus Council 3152 v. KFS BD, Inc., supra note 22.
54 See, id.; Restatement, supra note 50, § 527.
55 See Smith v. Meyring Cattle Co., 302 Neb. 116, 921 N.W.2d 820 (2019).
56 See Salem Grain Co. v. Consolidated Grain & Barge Co., supra note 44.

- 447 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
the plaintiff.” 57 Generally, a breach of contract is not an under-
lying wrong that can give rise to a civil conspiracy. 58 But the
question of when a claim is one for breach of contract and not
a tort is a bit more nuanced than that, dependent upon whether
the gravamen of the claim is a failure to perform a duty arising
out of an agreement between the parties as opposed to a duty
fixed by law independent of the contract. 59
[35] We do not decide in this appeal whether there was
an underlying tort supporting Sarah’s joint liability for those
damages falling solely under the court’s discussion of breach
of contract, however, because this was neither specifically
assigned nor specifically argued on appeal. Mere citation to a
case does not specifically argue every point of law discussed
therein. Rick and Sarah’s argument was marginally sufficient
for this court to understand that they relied on deNourie &
Yost Homes for the Restatement (Second) of Torts propositions
already discussed, but it would be overreaching for this court
to conclude that Rick and Sarah adequately challenged the
court’s judgment on the theory that some of the damages for
which Sarah was found liable lacked an underlying tort. 60 We
affirm the district court’s determination that Sarah was jointly
and severally liable.
7. Unjust Enrichment and
Election of Remedies
Rick and Sarah assert the district court erred by finding
that Brent could recover on an unjust enrichment theory in
57 deNourie & Yost Homes v. Frost, supra note 48, 289 Neb. at 157, 854
N.W.2d at 316 (emphasis supplied).
58 Joseph K. Leahy & Douglas K. Moll, The Revised Uniform Partnership
Act § 404 (2025) (general standards of partner’s conduct). See, also,
Restatement (Second) of Torts § 876 (1979).
59 See Fuchs v. Parsons Constr. Co., 166 Neb. 188, 88 N.W.2d 648 (1958).
60 See deNourie & Yost Homes v. Frost, supra note 48; Restatement, supra
note 50; Restatement, supra note 54; Restatement, supra note 58.

- 448 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
conjunction with his contractual claims for breach of contract
and breach of partnership duties of loyalty and fair dealing.
We disagree. The district court found Rick and Sarah liable
for unjust enrichment for Rick’s $488,000 Feed Ledger entry,
Rick’s diversion of distiller’s grain proceeds into his Liberty
National Bank account, Rick’s $900,000 withdrawal from the
joint FNBN account, and Rick’s diversion of $696,000 in pro-
ceeds from the sale of cattle under the Liquidation Agreement.
The court found the false ledger entries, distiller’s grain diver-
sion, and $900,000 damages were all additionally recoverable
under fraudulent misrepresentation, fraudulent concealment,
negligent misrepresentation, and conversion. The court found
Rick’s diversion of $696,000 recoverable under breach of con-
tract, in addition to under unjust enrichment.
[36-40] Pursuant to the doctrine of election of remedies,
a party pleading inconsistent theories of recovery may be
required to elect between them. 61 A remedy in equity is incon-
sistent with a remedy at law, because a suit in equity will
not lie when the plaintiff has a plain and adequate remedy at
law. 62 A theory of recovery premised upon the existence of a
contract is inconsistent with a theory premised on the lack of
a contract. 63 However, election of remedies does not preclude
a plaintiff from pursuing two causes of action where each
action arose out of different obligations and different opera-
tive facts. 64 Election of remedies ensures that a party does
not have double recovery for a single injury or is not made
more whole by compensation that exceeds the actual damages
sustained. Where several claims are asserted against several
61 See Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817
(1998).
62 See Southwest Trinity Constr. v. St. Paul Fire & Marine, 243 Neb. 55, 497
N.W.2d 366 (1993).
63 See deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669
(2017).
64 See id.

- 449 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
parties for redress of the same injury, only one satisfaction
can be had. 65
[41] Having found no merit to Rick and Sarah’s challenges
to the court’s judgment under other theories of recovery,
and there being no double recovery, we find that Rick and
Sarah have not been harmed by the court’s analysis of unjust
enrichment. An appellate court is not obligated to engage in
an analysis that is not necessary to adjudicate the case and
controversy before it. 66 We therefore decline to address this
assignment of error.
8. Real Estate Equalization
of $75,011.58
Rick argues the court erred by failing to order $75,011.58
payable by Brent to Rick pursuant to Rick’s counterclaim under
the Property Valuation and Division Agreement, because that
was the sum stated in the agreement and Rick testified it had
not been paid. We disagree. The district court found that there
was a failure of a condition precedent, namely, for Rick and
Brent to negotiate and complete a final sale of Brent’s own-
ership in the three limited liability companies, which barred
Rick’s entitlement to relief.
[42,43] A condition precedent includes a condition which
must be fulfilled before a duty to perform an existing con-
tract arises. 67 Whether language in a contract is a condition
precedent depends on the parties’ intent as gathered from the
language of the contract. 68 The Property Valuation and Division
Agreement provides: “The Equalization Payment will not be
made until the parties negotiate and complete a final sale of
65 Id.
66 In re Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).
67 Weber v. North Loup River Pub. Power, 288 Neb. 959, 854 N.W.2d 263
(2014).
68 Id.

- 450 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
SEBADE v. SEBADE
Cite as 320 Neb. 398
Brent’s ownership in Sebade Trucking, . . . Bancroft Grain, . . .
and Bancroft Custom Feeders.” The language of the agreement
shows a condition precedent that the district court found had
not occurred. Rick does not specifically address this finding,
but, in any event, we hold that the district court did not err by
denying Rick’s breach of contract counterclaim.
9. Motion to Alter and Amend
[44] Lastly, Rick and Sarah assign that the district court
erred by failing to sustain their motion to alter and amend the
judgment. Rick and Sarah’s brief does not argue this assign-
ment of error. In order to be considered by an appellate court,
the party asserting the alleged error must both specifically
assign and specifically argue it in the party’s initial brief. 69
Because Rick and Sarah’s appellate briefing does not argue
this assigned error, we do not consider it, though we note that
this assignment of error is duplicative of the errors already
discussed above.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Bergevin, J., not participating.
69 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).