A-22-892, Herink v. Bluestem Energy Solutions, LLC (appellant)
Douglas County, District Court, Judge Timothy P. Burns
Attorneys for Appellant: William F. Hargens, Patrick D. Pepper, and Donald R. Rison (McGath North Mullin & Kratz, PC, LLO)
Attorney for Appellee: David A. Domina (Domina Law Group, PC, LLO)
Civil Action: Breach of Contract; Prejudgment and Postjudgment Interest
Action Taken by Trial Court: Adam Herink owned 12,150 membership units (11.9% of Bluestem Energy Solutions, LLC (Bluestem) at the time he received a letter notifying him that his employment with Bluestem was being terminated without cause. Pursuant to Bluestem’s “Second Amended and Restated Operating Agreement,” upon termination of Herink’s employment, with or without cause, Herink had to sell and Bluestem had to buy all of Herink’s membership units at a “price per Unit equal to the fair market value per Unit as determined by the Manager in his sole discretion, exercised in a commercially reasonable manner.” Bluestem’s manager, Jon Crane, determined the aggregate purchase price of Herink’s membership units to be $410,350, and tendered that amount to Herink in the form of a promissory note, as allowed under the operating agreement. Herink believed that Bluestem offered him an unreasonably low price for his membership units.
Herink brought a breach of contract action against Bluestem seeking a judgment for the commercially reasonable and fair market value of his membership units, prejudgment and postjudgment interest, and costs. In its counterclaim, Bluestem sought a declaratory judgment and an order for specific performance regarding its determined purchase price of $410,350.
During the jury trial, Bluestem motioned for a directed verdict, which was denied. The jury ultimately found Bluestem was in breach of contract and determined that the fair market value of Herink’s interest in Bluestem was $2 million. The Douglas County District Court entered judgment on the verdict. The court subsequently granted summary judgment in favor of Herink on Bluestem’s counterclaim. The court awarded Herink costs, along with prejudgment and postjudgment interest.
Assignments of Error on Appeal: Bluestem assigns that the district court erred in (1) denying Bluestem’s motion for directed verdict at the close of Herink’s case in chief and at the close of all the evidence, and (2) granting summary judgment in favor of Herink on Bluestem’s counterclaim.
On cross-appeal, Herink assigns that the district court erred when it determined (1) the prejudgment interest rate was 1.53% rather than 12% as provided by Neb. Rev. Stat. § 45-104 (Reissue 2021), and (2) the postjudgment interest rate was 1.53% (contract rate) rather than 5.981% (rate published on the website of the Nebraska Supreme Court effective at the time of judgment).