Bierman v. Benjamin
943 N.W.2d 269
Neb.2020Background
- BD Construction, a Kearney, Neb. company, had three shareholders: Mark Benjamin (59%), Douglas S. Bierman (25%), and James A. Hoppenstedt (16%).
- The shareholders executed a buy‑sell agreement on September 29, 2009 addressing transfers on various events (including death).
- Mark died April 14, 2015; his widow Brenda was later appointed BD president and on April 20, 2016 terminated Doug and Jim’s employment.
- Doug and Jim sued Brenda and BD seeking specific performance of the buy‑sell agreement, removal of Brenda, an accounting, and damages for wrongful termination and breach of fiduciary duty.
- The district court granted partial summary judgment finding the buy‑sell agreement enforceable, held Brenda breached fiduciary duties, valued BD (as of Mark’s death) and awarded Brenda $1,703,197.79; Brenda appealed.
- The Nebraska Supreme Court reversed the partial summary judgment, finding the buy‑sell agreement ambiguous as to the pricing mechanism on a shareholder’s death, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability/pricing under the buy‑sell agreement (death of shareholder) | Agreement unambiguous; Article V pricing applies and is enforceable via summary judgment | Agreement ambiguous; death may be excluded from Article V pricing and extrinsic evidence needed | Court found plain error: agreement ambiguous as to pricing on death; reversed summary judgment and remanded for factual development |
| Breach of fiduciary duty & removal of Brenda | Doug & Jim: Brenda acted in bad faith and breached duties; removal and damages appropriate | Brenda: acted in good faith; challenged findings and remedies | Not reached on appeal due to reversal of summary judgment |
| Valuation date and treatment of life insurance proceeds | Doug & Jim sought valuation as of date of death and exclusion/inclusion positions per district court rulings | Brenda argued valuation date and exclusion of life insurance were improper | Not reached on appeal |
| Admissibility/qualification of witnesses and expert testimony | Plaintiffs: CPA testimony was permissible; district court rulings on bonuses and compensation valid | Brenda: her advisors’ testimony should have been admitted; CPA not qualified as expert | Not reached on appeal |
Key Cases Cited
- Merrick v. Fischer, Rounds & Assocs., 939 N.W.2d 795 (Neb. 2020) (contract interpretation and standard of review)
- DH‑1, LLC v. City of Falls City, 938 N.W.2d 319 (Neb. 2020) (contract interpretation is a question of law)
- Mays v. Midnite Dreams, 915 N.W.2d 71 (Neb. 2018) (plain‑error standard explained)
- Wintroub v. Nationstar Mortgage, 927 N.W.2d 19 (Neb. 2019) (contract ambiguity rules)
- Gibbons Ranches v. Bailey, 857 N.W.2d 808 (Neb. 2015) (plain meaning and ambiguity principles)
- David Fiala, Ltd. v. Harrison, 860 N.W.2d 391 (Neb. 2015) (when ambiguity exists, extrinsic evidence may be considered)