Berkshire v. Berkshire

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/09/2026 08:22 AM CDT - 477 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 Leslie J. Berkshire et al., on behalf of themselves and on behalf of Berkshire Partnership, LP, appellees, v. Richard N. Berkshire, appellant, and Andrew R. Berkshire et al., interested parties, appellees. ___ N.W.3d ___ Filed October 9, 2026. No. S-24-633. 1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 2. Motions to Dismiss: Appeal and Error. A district court’s denial of a motion to dismiss is reviewed de novo. 3. Evidence: Appeal and Error. A trial court has the discretion to deter- mine the relevancy and admissibility of evidence, and such determina- tions will not be disturbed on appeal unless they constitute an abuse of that discretion. 4. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 5. Torts: Equity. A breach of fiduciary duty is a tort claim that lies in equity. 6. Equity: Appeal and Error. On appeal from an equity action, an appel- late court decides factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion inde- pendent of the trial court’s determination. 7. Equity: Evidence: Appeal and Error. In an appeal of an equity action, where credible evidence is in conflict on a material question of fact, an appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and their manner of testifying and accepted one version of the facts rather than another.  - 478 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 8. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 9. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 10. Jurisdiction: Judgments: Final Orders: Appeal and Error. To deter- mine whether it has jurisdiction, an appellate court looks to Neb. Rev. Stat. §§ 25-1911 (Reissue 2016) and 25-1912 (Cum. Supp. 2024). Together, these statutes generally prescribe that for an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a judgment or decree rendered or from a final order. 11. Judgments: Final Orders: Words and Phrases. A “judgment rend­ ered,” as required by Neb. Rev. Stat § 25-1911 (Reissue 2016), is a final determination of the rights of the parties in an action, which is set forth by the court in a single, signed written document stating all of the relief granted or denied in an action. 12. Rules of the Supreme Court: Pleadings: Jurisdiction. A party may challenge the court’s subject matter jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1) (rev. 2025) by presenting either a facial challenge or a factual challenge. 13. ____: ____: ____. In a facial challenge under Neb. Ct. R. Pldg. § 6-1112(b)(1) (rev. 2025), the party asserts the allegations of the com- plaint are insufficient to establish the court’s jurisdiction over the sub- ject matter of the case. When a facial challenge is presented, the court will look only to the complaint to determine whether the plaintiff has sufficiently alleged a basis of subject matter jurisdiction. 14. ____: ____: ____. In a factual challenge under Neb. Ct. R. Pldg. § 6-1112(b)(1) (rev. 2025), the party asserts there is no jurisdiction over the subject matter of the case notwithstanding the allegations of the complaint. When a factual challenge is presented, the court may consider and weigh evidence outside of the pleadings to answer the jurisdictional question. 15. Trial: Evidence: Appeal and Error. To preserve a claimed error in admission of evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence. 16. Trial: Evidence. An objection to the admission of evidence is generally not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. 17. Limitations of Actions: Pleadings: Waiver. The statute of limitations is an affirmative defense that is waived if the defendant fails to plead it.  - 479 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 18. Partnerships: Records: Accounting. A managing partner having exclu- sive control of a partnership business not only controls production, sales, and distribution of products but is responsible for keeping all records and books of account, and he or she is required to account to the partnership for any benefit or profit derived from any transaction con- nected with the formation, operation, or liquidation of the partnership or from any use by him or her of its property. 19. Corporations: Accounting: Proof. Although the burden is ordinarily upon the party seeking an accounting to produce evidence to sustain the accounting, when another person is in control of the books and has man- aged the business, that other person is in the position of a trustee and must make a proper accounting. 20. Attorney Fees. Attorney fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees. Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed. Bradley A. Boyum, of Boyum Law Firm, for appellant. Brian S. Koerwitz and Eric W. Knutson, of Peetz Koerwitz & Lafleur, P.C., L.L.O., for appellees Leslie J. Berkshire et al. Funke, C.J., Cassel, Stacy, Papik, Freudenberg, Bergevin, and Vaughn, JJ. Funke, C.J. I. INTRODUCTION This appeal raises a number of questions regarding juris- diction, ownership interests in a partnership, damages for breach of fiduciary duty, and related matters. For the reasons set forth below, we conclude that we have jurisdiction over the appeal and all matters raised in it. We also conclude that the district court did not err in ruling that Richard N. Berkshire (Rick) no longer has an ownership interest in Berkshire Partnership, LP, in requiring Rick to pay damages for his breach of fiduciary duties while he was the managing  - 480 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 partner of Berkshire Partnership, or in other regards. As such, we affirm the order of the district court. II. BACKGROUND 1. Parties and Properties Involved Rick, Leslie J. Berkshire, and Laurie B. Meyers are all chil- dren of Joanne Berkshire and Robert H. Berkshire (Bob). Paul Meyers is Laurie’s husband. The other named parties are the grandchildren of Joanne and Bob. Berkshire Partnership was formed in 1988 and converted into a limited partnership in 2005. Its original general part- ners were Bob, Rick, Leslie, and Laurie. At least some of the partnership interests of Bob and Laurie were later transferred, and limited partners were added. However, this appeal centers primarily on Rick, Leslie, and Laurie. Rick was the managing partner of Berkshire Partnership from its inception, although Bob remained involved in the partnership’s operations until his death in February 2011. Before Bob died, the family would meet each year around Christmas to review financial matters. However, those meet- ings ceased after Bob’s death, and Leslie and Laurie would subsequently testify that they did not receive any “annual updates” or “year-end summaries” for the years between 2010 and 2015. They eventually received information covering the 2010 through 2015 period in 2016, and they received infor- mation about 2016 and 2017 in 2018. The information they ultimately received was, in their opinion, “disorganized” and incomplete. This factor, coupled with certain withdrawals that Rick made from Joanne’s accounts, over which he then had power of attorney, contributed to his removal as the managing partner in 2019. Rick was replaced by Paul, who was added as a general partner through an assignment and transfer of membership interest from Laurie, although Rick disputed the validity of the assignment and his replacement. Berkshire Partnership owned between 85 and 100 per- cent of Berkshire Family Building, LLC. Angela Burmeister  - 481 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 also owned an interest in Berkshire Family Building dur- ing the relevant time period. An operating agreement, dated December 31, 2009, stated that “[t]he initial [m]anager and [p]resident” of Berkshire Family Building “shall be [Rick] (who is [m]anaging [p]artner of . . . Berkshire Partnership).” Rick retained his role as the “the managing member” or the “represent[ive of] the managing member” of Berkshire Family Building until Paul replaced him in February 2019. However, subsequently, at the trial in the present matter, Rick would describe himself, Burmeister, and Laurie as “the management company” of Berkshire Family Building. As relevant here, Berkshire Family Building owned a com- mercial building and two residential buildings located in Omaha, Nebraska. The law firm of Berkshire & Burmeister, P.C., was a tenant of the commercial building. Bob, Rick, and Laurie were all partners in Berkshire & Burmeister at vari- ous times. Rick was also personally involved in other business ventures that invested in real estate. Those ventures included RBS, LLC; RBS Management, LLC; and RBS 3, LLC. Bill Rafael was Rick’s friend and partner in several ventures. Rafael owned and operated Great Deal, LLC. In addition, Rick was the trustee of the Robert H. Berkshire Trust (RHB Trust). As discussed below, on September 27, 2019, Joanne, Leslie, and Laurie filed a complaint against Rick in the county court for Douglas County, Nebraska, alleging that he had breached his fiduciary duties as the trustee of the RHB Trust. 2. Initial Complaint and Motion to Dismiss Several months later, on January 13, 2020, Leslie, Laurie, Paul, Joanne, Lauren K. Meyers, and Jacob Meyers (collec- tively the appellees) filed suit against Rick and four interested parties in the district court for Douglas County on behalf of themselves and Berkshire Partnership, alleging that Rick had breached his fiduciary duties as managing partner of the  - 482 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 partnership. Among other things, the appellees alleged that Rick had failed to keep and maintain complete records for the partnership, reduced his interest in the partnership by his undisclosed redemption of partnership shares for distributions that he made to himself, commingled partnership funds with his own funds or the funds of third parties, used partnership assets for his own pecuniary interests to the partnership’s detriment, and refused to provide an accounting or finan- cial records for the partnership and its assets. The appellees sought an accounting, monetary damages, and attorney fees, as well as a declaration that Paul is the duly elected manager of Berkshire Partnership. On May 15, 2020, Rick filed a motion to dismiss the present case due to the complaint that Joanne, Leslie, and Laurie had previously filed in county court regarding the RHB Trust. Rick claimed that as a result of the earlier filing, the county court had jurisdiction over the present matter because Berkshire Partnership was “part of the trust estate during the time frame” of the accountings requested in the complaint regarding the trust. On June 26, 2020, the district court issued an order over- ruling Rick’s motion to dismiss on the ground that the county court does not have jurisdiction “over all of the property poten- tially involved here.” The district court reasoned that “while some of the [RHB] Trust Estate may be involved in this case, there is likely other property involved that is not in the [RHB] Trust Estate.” As discussed below, Rick would later file other motions to dismiss on this basis, and he would renew his motion to dis- miss at the trial. 3. Amended Complaint, Rick’s “Response,” and His Subsequent “Answer” On July 27, 2020, with the leave of the court, the appellees filed an amended complaint adding Rick, in his capacity as trustee of the RHB Trust, as an interested party. Otherwise, the  - 483 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 amended complaint raised the same allegations and requested the same relief as the original complaint. Shortly thereafter, on September 1, 2020, Rick filed a “Response to Complaint,” in which he admitted or denied the allegations of “the [c]omplaint,” by which he apparently meant the original complaint. (The total number of paragraphs in the response corresponds to that in the original complaint, and not that in the amended complaint.) The response did not raise any affirmative defenses. The appellees then moved for partial summary judgment in their favor and against Rick on their claim that Paul was the duly elected managing partner of Berkshire Partnership. The district court ruled in the appellees’ favor, and Rick does not assign any error to that ruling on appeal. Subsequently, on September 30, 2022, apparently without seeking or obtaining leave from the district court or the con- sent of the appellees, Rick filed an “[a]nswer to Amended Complaint and Counterclaim.” In that “[a]nswer,” Rick admit- ted or denied the allegations in the appellees’ amended com- plaint but did not allege any affirmative defenses. In his counterclaim, Rick asked that Laurie’s power of attorney over Joanne’s affairs be revoked and that Laurie be surcharged for the “amount of extra [f]ederal [e]state [t]ax” to be paid due to her “careless actions.” Rick also sought an accounting for Laurie’s actions while she had power of attorney over Joanne’s estate, as well as an accounting for Berkshire Partnership since Paul took over as manager. 4. Discovery As relevant here, the appellees were ordered to “designate expert witnesses, if any, including curriculum vitae, and the subject matter about which each such expert [was] expected to testify” by December 7, 2022, unless otherwise agreed upon by the parties. All discovery on such experts, including depositions, was ordered to be completed by February 7, 2023. However, subsequently, on February 21, the court granted the  - 484 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 parties’ joint motion to continue deadlines and gave them 100 days from the date of the court’s order to “complete the dis- covery of expert witnesses, the identification of exhibits and witnesses, and filing of dispositive pre-trial motions.” The appellees disclosed their expert, Justin Korth, the tax director at Lutz and Company, by December 7, 2022. The dis- closure specifically stated: Korth will provide testimony concerning the financial records and record keeping of the Berkshire Partnership. He will provide testimony concerning his investigation of the accounting records, bank statements, distribu- tions, income, expenses, assets, liabilities, and debts for Berkshire Partnership and how those relate to the respec- tive interests or liabilities of partners of the Berkshire Partnership. He is expected to provide testimony con- cerning distributions or expenditures or other financial activity that are unrelated to Berkshire Partnership or for which no adequate explanation is available. One week later, on December 14, Rick moved to have the case dismissed in part due to the appellees’ alleged failure to comply with the Nebraska Court Rules of Discovery in Civil Cases. However, that motion did not reference any concerns about discovery as to Korth specifically, and the record on appeal reflects no hearing or order on the motion. The appel- lees would subsequently claim in their brief on appeal that Rick withdrew the motion. But that withdrawal is also lacking from the record before us. Korth did not “issue[]” the written report about which he would subsequently testify at the trial until August 30, 2023. Korth’s report was shared with Rick’s counsel on the next day. However, as noted below, that was less than 1 month before the trial. 5. Evidence and Events at Trial A bench trial was held from September 26 to 29, 2023. The resulting record is extensive. Insofar as Rick does not  - 485 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 challenge the district court’s conclusion that he breached his fiduciary duties, our discussion centers upon the evidence of Rick’s ownership interest in Berkshire Partnership and the damages for his breach of his fiduciary duties—both mat- ters that Rick does contest. We also highlight events at the trial relevant to the issues raised in this appeal. Additional information will be discussed later in the opinion as it relates to our analysis of the parties’ arguments. Our discussion of the evidence is informed by the parties’ briefs and by our own de novo review of the record on appeal. Insofar as there may be additional evidence in the record that supports Rick’s arguments, but that was not cited by him in his briefs, we would note that an appellate court ordinarily does not scour the record in search of facts that might support an appel- lant’s claim. 1 (a) Berkshire Partnership’s Capital Accounts The evidence showed that the partners in Berkshire Partnership had “capital accounts” that reflected “how many units of interest [they] had.” Under the heading “Capital: . . . Units of Partnership Interest,” the partnership agreement stated that “[o]n any given date, the value of a [u]nit of [p]artner- ship interest shall be determined by dividing the total net asset value of the [p]artnership by the number of all [g]eneral and [l]imited [p]artnership [u]nits of [i]nterest outstanding.” There was also evidence regarding Rick’s capital account, in particular, some of which was expressed in dollars and not units. Partnership tax returns prepared by a certified professional accountant showed that Rick’s “[e]nding capi- tal account” was between -$414,939 and -$758,178 in each year from 2011 to 2017, and there was evidence that in September 2017, the accountant told Rick that “distributions over the years from credit card charges reflected as draws . . . have created [a] significant negative capital balance.” Korth’s report similarly showed that Rick had “fully liquidated his 1 State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).  - 486 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 share of the partnership assets due to distributions leading up to and including 2005” and that his capital account was -$798,659 as of December 31, 2019. As such, Korth said that Rick was not entitled to any share in the partnership’s equity growth between 2005 and 2019, even though he had contin- ued to take distributions from the partnership. Korth also said that Rick had no ownership left in the partnership and owed it $798,659. Rick, in contrast, testified that the tax returns from 2011 to 2017 had all been mistaken and that he corrected the error when he prepared the partnership’s 2018 tax return. The 2018 partnership tax return showed that Rick had a “[b]eginning capital account” of $130,147 and an “[e]nding capital account” of $224,548. Rick testified similarly that Korth was mistaken in concluding that Rick “[went] negative in 2005,” as well as in other aspects of Korth’s analysis of the capital accounts. Instead, Rick pointed to “balance sheets” he had maintained that showed that as of 2019, he had 76 units of interest in Berkshire Partnership with a net value of $224,548. Rick also disputed the accountants’ treating his credit card charges and other money borrowed from the partnership’s margin account as distributions. Instead, Rick maintained that no distribution occurred until the shares of stock that were one of the primary assets of the partnership were sold to pay off the amounts owed on the margin account. (b) Rent and Other Debt Owed by Berkshire & Burmeister There was evidence of money owed to Berkshire Family Building by Berkshire & Burmeister that had not been paid. Korth’s report noted $334,869 in unpaid rent between the 2014 lease year and the 2018 lease year, based on a lease that Korth said showed that Berkshire & Burmeister owed Berkshire Family Building $10,000 per month in rent. However, Korth conceded that there were several versions of the lease agreement among the documents he reviewed. Korth  - 487 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 also noted a loan of $36,000 from Berkshire Family Building to Berkshire & Burmeister that he concluded had been for- given without authorization, because it was removed from the relevant tax returns without any documentation that it had been forgiven or paid. Paul testified similarly that based upon his review of the general ledger for Berkshire Family Building, Berkshire & Burmeister paid no rent between June 14, 2016, and February 27, 2018. Paul also noted that there were two versions of the 2015 lease. Both versions were signed by Rick as “[m]anager” of Berkshire Family Building and “[m]anaging [p]artner” of Berkshire & Burmeister and called for the law firm to pay Berkshire Family Building $10,000 per month in rent. However, one version of the lease gave Berkshire & Burmeister a credit of $2,000 per month for managing Berkshire Family Building’s commercial building, while the other version did not. The par- ties stipulated that Rick presented the version of the lease that did not include the $2,000 monthly credit to a bank when he took out a loan of $975,000 on behalf of Berkshire Family Building in 2015. Rick again disputed the accuracy of Korth’s report. As to the 2015 lease, Rick said that in practice, regardless of what the written documents specified, Berkshire & Burmeister paid $8,000 a month in rent and managed Berkshire Family Building’s commercial building. Rick also said that the unpaid rent in and after 2016 was due to Laurie’s decision to wind down her law practice. Rick maintained that as of result of that decision, the firm was “short . . . the amount that Laurie wasn’t bringing in” and “just didn’t pay the rent.” According to Rick, he discussed the matter with Burmeister and Laurie and concluded that it did not make sense to take money out of Berkshire Partnership to pay Berkshire & Burmeister on Laurie’s behalf so that the law firm could then pay the rent to Berkshire Family Building, because it was “just a big circle of money.”  - 488 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 (c) Cash and ATM Withdrawals From Berkshire Family Building The general ledger for Berkshire Family Building showed $199,793.26 in cash and ATM withdrawals during a 2½-year period between 2011 and 2014. Paul testified that he had talked to Rick about these withdrawals and learned that the withdrawals had been made by an individual whom Rick had hired to work on the buildings owned by Berkshire Family Building. According to Paul, Rick said that he gave one of Berkshire Family Building’s ATM cards to this individual and that “some” of the ATM withdrawals during that period were for “gambling at the casinos and things of that nature.” Rick did not dispute the amount of withdrawals or that those withdrawals had been made by an individual using an ATM card that Rick had given to him. However, Rick disputed that he “did not monitor [that individual’s] actions.” Rick said that he monitored those actions, but that his monitor- ing was not “enough to prevent this fraud.” Rick also main- tained that the individual had performed work on Berkshire Family Building’s properties. According to Rick, the indi- vidual “screwed [him],” but “[n]ot a dime of it ever came back to [him].” (d) Unreported Transfers From Berkshire Family Building Korth’s report identified $1,291,326.97 in “questionable transfers” from Berkshire Family Building between 2013 and 2017, many of which involved Rick’s “friends and busi- ness partners.” Leslie and Paul also testified about sev- eral such transfers. Leslie described a $975,000 loan taken out on behalf of Berkshire Family Building by Rick that “coincide[d] with” money transferred out to Rafael, Great Deal, and RBS “in large amounts.” Paul testified similarly about multiple transfers, ranging from $15,000 to $95,000 in amount, from Berkshire Family Building to Rafael, Great Deal, RBS Management, or unrecorded payees. Paul said  - 489 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 there were no documents showing the payees had performed work or received a loan from Berkshire Family Building, and the amounts involved exceeded that reasonably owed for work on the corporation’s commercial and residential proper- ties. Paul also noted that the items did not “show[] up” in the corporation’s general ledger, where one would expect to find the “costs and expenses of a business.” However, Paul con- ceded that several transfers noted in Korth’s report appeared to have been valid and were not being questioned by the appellees. Paul also conceded that it was “possible” the pay- ees had worked on the properties. On the other hand, Rick and a person who had assisted him in managing the properties owned by Berkshire Family Building said that some transfers reflected work that Rafael and others performed for which there had been no invoices. Rick also said that other transfers reflected loans that he made to Rafael or others which had been repaid, but for which there was no documentation. Rick and the person who had assisted him in managing the properties both stated that such documentation was not necessarily to be expected, and Rick, in particular, complained that the appellees kept asking ever more questions, including questions about transactions prior to Bob’s death. (e) Withdrawals From Berkshire Partnership Korth’s report also identified $270,932.95 in “unreported transfers” from Berkshire Partnership to other persons or entities, including Rafael and Berkshire & Burmeister. Laurie testified similarly regarding two such transactions, one of which involved Rafael, although the appellees stipulated that two other transactions totaling $8,643.67 were legitimate expenses. Korth testified that he used the term “unreported” to mean that there was no “‘explanation for these transfers, and they do not appear to be for amounts owed by Berkshire Partnership for business purposes.’” Korth also testified that he had relied on written documentation in preparing his  - 490 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 report and that he did not ask Rick or the appellees about specific transactions. Rick prepared an “[a]nalysis” of Korth’s report. In that analysis, Rick claimed that “many of the transfers” Korth noted here were “clearly . . . allocated as reductions to part- ners.” Rick also testified that the transfer to Berkshire & Burmeister could “possibly . . . have been paid back or offset back against something,” because “[he], Laurie, and [Bob] weren’t bringing in income in the amount that was probably necessary for [them], as partners of the firm.” Rick testified similarly regarding another transfer related to a timeshare that Joanne had extended, which he had “taken off the bal- ance sheet because it literally had no value.” However, Rick conceded that there was not a single transaction listed in this portion of Korth’s report that Rick could not have found on his own in the records of the financial institution at which Berkshire Partnership had accounts. (f) Other Relevant Events at Trial At the close of the appellees’ case in chief, Rick orally renewed his motion to dismiss for lack of subject matter jurisdiction. Rick argued, summarized, that the RHB Trust was intertwined with the present matter due to the nature of the appellees’ claims, the evidence presented, and the similar- ity in the relief sought. Rick also asserted that the matter did not have to be specifically tied to the RHB Trust insofar as it was tied to Bob’s estate and that “[t]he intent is to manage the [RHB] Trust according to the [e]state, according to [Bob’s] wishes.” Rick claimed that the appellees were straying from Bob’s wishes “with all of this.” In addition, Rick argued that the RHB Trust was involved because he had “even[ed] everything out in different ways, sometimes with the [t]rust.” The appellees countered that the claims and evidence in this case were limited to Berkshire Partnership. Rick’s motion was overruled.  - 491 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 6. Closing Arguments After the close of evidence, the parties submitted briefs to the district court setting forth their closing arguments. As relevant here, Rick again asserted that the district court lacked subject matter jurisdiction because of the complaint that Joanne, Leslie, and Laurie had previously filed in the county court regarding the RHB Trust. Rick also raised issues with the specificity of the appellees’ pleadings, the statute of limitations for an action in equity for an accounting, the district court’s jurisdiction over “matters relating to [f]ederal [t]ax issues,” and the fact that Berkshire Family Building and Berkshire & Burmeister were not parties to the lawsuit, among other things. Joanne died after briefs were filed and while the matter was under advisement. 7. January 18, 2024, Order and Parties’ Subsequent Filings On January 18, 2024, the district court issued an order that generally ruled in favor of the appellees and against Rick. The court began by rejecting Rick’s statute of limitations defense because the appellees’ complaint “is not barred by the statute of limitations on its face” and Rick did not “attempt to plead the statute of limitations as a defense.” The court then found that Rick had “repeatedly breached his fiduciary duties” and was liable to Berkshire Partnership for the following amounts: • $214,869 in uncollected rent from Berkshire & Burmeister; • $199,793.26 in improper cash and ATM withdrawals from Berkshire Family Building; • $1,014,960.18 in “unreported transfers” from Berkshire Family Building; and • $253,645.61 in direct withdrawals from Berkshire Partnership. The court also found that Rick had a capital account balance of -$798,659, which he must repay to Berkshire Partnership.  - 492 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 Further, the court found that “[b]y having a negative capi- tal account, Rick no longer own[ed] any interest” in the partnership. However, the court declined the appellees’ request for guid- ance on “whether and in what amount” alleged gifts that Joanne made while Rick had power of attorney over her accounts should be reported to the Internal Revenue Service (IRS). The court said that any guidance it might provide on that matter would amount to an advisory opinion because the court does not have jurisdiction over the matter. In concluding, the court expressly stated that its order was “not a final [o]rder for purposes of appeal” and that it retained jurisdiction of the case to determine whether the appellees were entitled to attorney fees. Subsequently, on January 29, 2024, the appellees filed a motion seeking $189,973.24 in attorney fees and costs. In the motion, the appellees alleged that Neb. Rev. Stat. § 67-425(1) (Reissue 2018) allows a partnership to maintain an action against a partner for breach of a partnership agreement or for violating a duty to the partnership. The appellees further alleged that claims under § 67-425(1) have been “deemed to be derivative in nature, giving rise to fees under” Neb. Rev. Stat. § 67-291 (Reissue 2018). Rick disputed that this was a derivative suit. Rick also argued that the appellees’ request for attorney fees failed to distinguish between work on successful claims and work on unsuccessful claims, as he maintained was required under a prior opinion of this court. Later still, on May 14, 2024, Rick requested specific find- ings of fact on 90 separate matters related to the January 18 order. 8. Orders of June 4 and July 26, 2024, and Rick’s Appeal The district court filed an order on June 4, 2024, in which it rejected Rick’s arguments and awarded the appellees the  - 493 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 full amount of attorney fees and costs they had sought. The June 4 order summarized the findings of the January 18 order but did not expressly purport to be a final order. Then, after a hearing, the district court filed an order on July 26, 2024, overruling Rick’s request for specific findings of fact. In so doing, the court stated that its January 18 order “had sufficient and specific findings of fact relevant to the entry of judgment.” The court also stated that to the extent Rick’s request for specific findings of fact is “construed as a motion to alter or amend, that is likewise overruled.” The court concluded: “Counsel for both parties have confirmed that there are no other matters for the [c]ourt to decide. This [o]rder, in addition to the [c]ourt’s [o]rder issued January 18, 2024, and the [c]ourt’s [o]rder on [the appellees’] Motion for Attorney Fees issued June 4, 2024, are hereby final, appeal- able orders.” Rick filed a notice of appeal on August 23, 2024, challeng- ing the district court’s orders of January 18, June 4, and July 26. While the appeal was pending, Rick filed a motion asking us to take judicial notice of an order that the county court filed first on April 24, 2025, and then again on October 24, 2025, in the proceedings regarding the RHB Trust. Rick claimed the order showed that “[t]he two cases [are] clear[ly] intertwined and should have been litigated together.” We deferred our decision on Rick’s motion for judicial notice until plenary sub- mission of the appeal. III. ASSIGNMENTS OF ERROR Rick assigns, summarized and reordered, that the district court erred in overruling his motion to dismiss for lack of sub- ject matter jurisdiction; admitting certain evidence; finding that he waived the statute of limitations; concluding that he had a negative capital account balance of $798,659, which he must repay to Berkshire Partnership; concluding that he has no fur- ther interest in the partnership; finding him liable to the part- nership for a total of $1,683,268.05 in damages for his breach  - 494 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports BERKSHIRE v. BERKSHIRE Cite as 322 Neb. 477 of his fiduciary duties; awarding attorney fees to the appellees; and overruling his motion for specific findings of fact. IV. STANDARD OF REVIEW [1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 2 [2] A district court’s denial of a motion to dismiss is reviewed de novo. 3 [3,4] A trial court has the discretion to determine the rel- evancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. 4 A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly unten- able, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 5 [5-7] We have previously opined that a breach of fiduciary duty is a tort claim that lies in equity. 6 On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to q