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www.nebraska.gov/apps-courts-epub/
06/30/2023 08:06 AM CDT
- 607 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
BCL Properties, Inc., appellee, v. Shawna L. Boyle,
appellant, and i3 bank, formerly known
as Bank of Bennington, appellee.
___ N.W.2d ___
Filed June 30, 2023. No. S-22-377.
1. Judgments: Motions for New Trial: Words and Phrases: Appeal and
Error. An appellate court reviews a denial of a motion for new trial or,
in the alternative, to alter or amend the judgment, for an abuse of discretion. An abuse of discretion occurs when a trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence.
2. Attorney Fees. When an attorney fee is authorized by statute or a uniform practice and procedure, the amount of the fee is addressed to the
discretion of the trial court.
3. ____. Whether a statute or a uniform course of procedure authorizes
attorney fees presents a question of law.
4. Prejudgment Interest: Appeal and Error. Awards of prejudgment
interest are reviewed de novo.
5. Trial: Evidence. A motion in limine is merely a procedural step by
which a court makes a preliminary determination on the admissibility
of evidence.
6. ____: ____. It is not the office of a motion in limine to obtain a final
ruling on the ultimate admissibility of evidence.
7. Trial: Evidence: Appeal and Error. Because a ruling on a motion in
limine is not a final ruling on admissibility, it does not present a question for appellate review.
8. Trial: Evidence: Proof: Appeal and Error. To be preserved for appellate review, the question of admissibility which was the subject of a
motion in limine must be raised during trial by an appropriate objection
or offer of proof.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
9. Courts: Juries. The decision whether to reply to questions from the
jury regarding the applicable law is entrusted to the discretion of
the trial court.
10. Courts: Juries: Jury Instructions. It is generally not an abuse of judicial discretion to respond to a jury’s questions by referring the jury to
written instructions already given.
11. Courts: Juries. A court can, in the exercise of its discretion, refuse to
reply to questions from the jury regarding the applicable law.
12. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2021) applies
to four types of judgments: (1) money due on any instrument in writing;
(2) settlement of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained without the
owner’s consent, express or implied, from the receipt thereof; and (4)
money loaned or due and withheld by unreasonable delay of payment.
13. Contracts: Prejudgment Interest: Words and Phrases. A construction
contract is an instrument in writing on which money was due within the
meaning of Neb. Rev. Stat. § 45-104 (Reissue 2021).
14. Prejudgment Interest. When a claim is of the types enumerated in
Neb.
Rev. Stat. § 45-104 (Reissue 2021), then prejudgment interest can be
recovered without regard to whether the claim is liquidated.
15. Attorney Fees. Attorney fees 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.
16. Liens: Foreclosure: Damages: Attorney Fees. Neb. Rev. Stat. § 52-157
(Reissue 2021) authorizes an award of damages, which may include
attorney fees, if a person is wrongfully deprived of benefits to which
he or she is entitled under the Nebraska Construction Lien Act. But
§ 52-157 does not authorize attorney fees in every action involving
foreclosure of a construction lien, nor does it authorize an attorney fee
award to every prevailing party in an action under the act.
17. Contractors and Subcontractors: Liens: Foreclosure: Damages:
Attorney Fees. A contractor who has successfully foreclosed a construction lien and received all the benefits to which he or she is
entitled under the Nebraska Construction Lien Act is not entitled to
an award of damages or attorney fees under Neb. Rev. Stat. § 52-157
(Reissue 2021).
Appeal from the District Court for Douglas County: Todd
O. Engleman, Judge. Affirmed in part, and in part vacated.
Brian T. McKernan and Lauren R. Goodman, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellant.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
Cathy S. Trent-Vilim and Craig F. Martin, of Lamson,
Dugan & Murray, L.L.P., for appellee BCL Properties, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This is an action between a general contractor and a property owner over claims related to a residential construction
project. The district court entered judgment in favor of the
general contractor, including an award of prejudgment interest
under
Neb. Rev. Stat. § 45-104 (Reissue 2021) and an award of
attorney fees under
Neb. Rev. Stat. § 52-157 (Reissue 2021).
The property owner appeals, primarily to challenge the award
of prejudgment interest and attorney fees. For reasons we will
explain, we vacate the award of attorney fees and otherwise
affirm the judgment.
I. BACKGROUND
Shawna L. Boyle hired BCL Properties, Inc. (BCL), to be
the general contractor for a demolition, remodeling, and construction project on residential property in Omaha, Nebraska.
The parties entered into a written contract for an original
amount of $475,516.41. As the work progressed, Boyle made
several payments and the parties made alterations to the scope
of the work and the materials to be used. Based on these alterations, BCL requested additional amounts from Boyle. Boyle
disputed the amounts due, and the parties’ disagreements escalated. Eventually, BCL ceased work on the property.
In January 2019, BCL filed a construction lien in the
amount of $194,037.75. BCL also emailed Boyle an invoice
and a spreadsheet breaking down the work completed, the
amounts paid, and the amount due. When Boyle failed to
pay the invoice, BCL filed this action in the district court for
Douglas County.
BCL’s complaint was filed in September 2019 and
requested damages from Boyle based on breach of contract,
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
unjust enrichment, and quantum meruit. The complaint also
sought to foreclose the construction lien. Boyle counterclaimed, alleging breach of contract, misrepresentation, and
violation of Nebraska’s Uniform Deceptive Trade Practices
Act (UDTPA).
A jury trial was held on most of the claims and counterclaims, and a simultaneous bench trial was held on the lien
foreclosure and UDTPA claim. We summarize the trial proceedings only to the extent necessary to address the assignments of error raised on appeal.
1. Proposed Exhibits
During trial and outside the presence of the jury, Boyle’s
counsel informed the court about “a couple of exhibits we
intend to introduce this morning that there’s not an agreement on, and we’d like to get some direction from the Court
before the jury comes in.” Boyle’s counsel described two
spreadsheets, referred to by the parties as “E319” and “E320,”
that were created by Boyle and intended as summaries of the
evidence regarding damages. This opinion will refer to these
as the “proposed exhibits.” BCL advised the court that it
intended to object to both proposed exhibits on grounds they
were inaccurate, misleading, and confusing summaries. After
reviewing the proposed exhibits and discussing them with
counsel, the court stated that it would allow Boyle to testify
about the evidence referenced in the summaries, but that it
would not admit either summary into evidence because they
were “entirely too confusing” and would allow the jurors to
“start looking at things they’re not supposed to be looking at.”
For the same reasons, the court said it would not allow the
proposed exhibits to be used for demonstrative purposes during closing argument. During trial, Boyle did not offer either
proposed exhibit into evidence or make an offer of proof; nor
did she attempt to use the proposed exhibits for demonstrative purposes.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
2. Jury’s Question
After the case was submitted to the jury for deliberation,
the jury submitted a written question asking how to calculate
damages if it decided to return a verdict in favor of BCL. The
court contacted the attorneys for both parties, and after discussing the jury’s question, counsel agreed the court should
respond by referring the jury to the written jury instructions
already given.
It is undisputed that before the court responded to the
jury’s question, the jury reached a unanimous verdict in favor
of BCL on all issues. The court accepted the verdict without
responding to the jury’s earlier question, and Boyle did not
object to this procedure or move for a mistrial after the verdict
was accepted.
3. Jury Verdict and Judgment
Pursuant to special verdict forms, the jury found in favor
of BCL on its breach of contract claim in the amount of
$193,037 and against Boyle on her counterclaims for breach
of contract and misrepresentation. The district court entered
judgment on the verdicts. In a separate order, the district court
foreclosed the construction lien and denied Boyle’s UDTPA
counterclaim.
4. Prejudgment Interest, Attorney
Fees, and Final Judgment
After the jury verdicts were accepted, BCL moved for an
award of prejudgment interest and attorney fees. An evidentiary
hearing was conducted, and the court sustained both requests.
As to prejudgment interest, the court determined the parties’ construction contract was an “instrument in writing”
on which money was due, within the meaning of § 45-104.
It thus awarded BCL prejudgment interest in the amount
of $49,946.34.
As to attorney fees, the court found they were authorized by § 52-157, a provision of the Nebraska Construction
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
Lien Act (the Act). The Act provides in relevant part that if
a person is “wrongfully deprived of benefits to which he or
she is entitled” under the Act, then damages awarded “may”
include “reasonable attorney’s fees.” 1 The district court generally reasoned that BCL was “wrongfully deprived” of benefits
under the Act because it had to foreclose on its construction
lien. It thus awarded BCL attorney fees of $115,473.90.
The court entered a final judgment in favor of BCL in the
amount of $193,037 plus costs, with prejudgment interest in
the amount of $49,946.34 and attorney fees in the amount
of $115,473.90.
5. Motion for New Trial
Boyle timely moved for a new trial or, in the alternative,
to alter or amend the judgment. She sought a new trial based
on the exclusion of proposed exhibits E319 and E320 and on
the court’s failure to respond to the jury’s written question
before accepting the verdict. Her motion to alter or amend the
judgment challenged the award of attorney fees and prejudgment interest.
The trial court overruled Boyle’s motion for new trial and
declined to amend the judgment. Boyle filed this timely appeal,
which we moved to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Boyle assigns, restated and consolidated, that the district
court erred in (1) refusing to admit proposed exhibits E319 and
E320 into evidence or allow them to be used for demonstrative
purposes at trial and denying her motion for new trial asserting
this issue, (2) failing to respond to the jury’s written question
before the jury announced its verdict and denying her motion
for new trial asserting this issue, (3) awarding BCL prejudgment interest, and (4) awarding BCL attorney fees.
1
§ 52-157(1) and (3).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
III. STANDARD OF REVIEW
[1] An appellate court reviews a denial of a motion for new
trial or, in the alternative, to alter or amend the judgment, for
an abuse of discretion. 2 An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 3
[2,3] When an attorney fee is authorized by statute or a uniform practice and procedure, the amount of the fee is addressed
to the discretion of the trial court. 4 However, whether a statute
or a uniform course of procedure authorizes attorney fees pre
sents a question of law. 5
[4] On appeal, awards of prejudgment interest are reviewed
de novo. 6
IV. ANALYSIS
1. Alleged Trial Errors Not Preserved
(a) Proposed Exhibits
Boyle’s first assignment of error asserts that the court abused
its discretion by excluding proposed exhibits E319 and E320.
As noted, during a conference outside the presence of the jury,
Boyle’s counsel requested “direction from the Court” regarding the admissibility of these proposed exhibits and the court
advised that it would not accept them into evidence but would
allow Boyle to testify about the information they contained.
Boyle’s arguments on appeal characterize this as a final ruling
on their admissibility. It was not.
2
Carson v. Steinke, ante p. 140, 989 N.W.2d 401 (2023).
3
Id.
4
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202,
959 N.W.2d
251 (2021); Seldin v. Estate of Silverman,
305 Neb. 185,
939 N.W.2d 768
(2020).
5
See Echo Group v. Tradesmen Internat., 312 Neb. 729,
980 N.W.2d 869
(2022).
6
Id.; Weyh v. Gottsch, 303 Neb. 280,
929 N.W.2d 40 (2019).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
It is apparent from the record that the purpose of the conference outside the presence of the jury was to request a preliminary ruling on the admissibility of the proposed exhibits
prepared by Boyle. The parties disagreed as to admissibility,
and although neither party filed a written motion in limine,
Boyle’s request for “some direction from the Court before the
jury comes in” was akin to an oral motion in limine and we
analyze it as such.
[5-8] Indeed, we have encouraged courts and counsel to
resolve questions regarding the prospective use of summary
exhibits during a pretrial conference. 7 But a motion in limine is
merely a procedural step by which a court makes a preliminary
determination on the admissibility of evidence. 8 It is not the
office of such motion to obtain a final ruling on the ultimate
admissibility of evidence. 9 And because a ruling on a motion in
limine is not a final ruling on admissibility, it does not present
a question for appellate review. 10 Instead, to be preserved for
appellate review, the question of admissibility which was the
subject of a motion in limine must be raised during trial by an
appropriate objection or offer of proof. 11
Here, Boyle did not offer either E319 or E320 during trial;
nor did she make an offer of proof or attempt to use either
one for demonstrative purposes during trial. She thus never
requested or obtained a final ruling on the admissibility of
these proposed exhibits during trial, and she cannot predicate
trial error on the court’s preliminary rulings. 12 Nor, under the
7
See Crowder v. Aurora Co-op Elev. Co., 223 Neb. 704, 720,
393 N.W.2d
250, 261 (1986) (“we encourage courts and counsel to resolve any
questions regarding prospective use of a summary [exhibit under Neb.
Evid. R. 1006] at a pretrial conference”).
8
See State v. Dady, 304 Neb. 649,
936 N.W.2d 486 (2019).
9
See O’Brien v. Cessna Aircraft Co., 298 Neb. 109,
903 N.W.2d 432
(2017).
10
See id.
11
See id. See, also, State v. Vaughn, ante p. 167,
989 N.W.2d 378 (2023).
12
See O’Brien, supra note 9.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
circumstances, can she rely on the court’s preliminary ruling to
support a motion for new trial. 13 Because Boyle never offered
the proposed exhibits at trial, she has not preserved their
admissibility for appellate review, and her first assignment of
error has no merit.
(b) Jury Question
For her second assignment of error, Boyle argues the court
abused its discretion by accepting the jury verdict without
first responding to the jury’s written question. As noted, while
deliberating, the jury sent a written question to the court asking how to calculate damages if it decided to return a verdict in
favor of BCL. After consultation with counsel for both parties,
the parties agreed the court should respond by referring the
jury back to the written instructions already given. But before
any such response was delivered to the jury, it reached a unanimous verdict, which the court accepted.
[9-11] The decision whether to reply to questions from the
jury regarding the applicable law is entrusted to the discretion
of the trial court. 14 It is generally not an abuse of discretion
to respond by referring the jury to written instructions already
given, 15 but we have also noted “[a] court can, in the exercise
of its discretion, refuse to reply to questions from the jury
regarding the applicable law.” 16
It appears from the record that the court planned to
respond to the jury’s question by referring it to the written
13
See, generally, Connor v. State, 175 Neb. 140,
120 N.W.2d 595 (1963)
(party seeking new trial on ground of erroneous admission of evidence
must have timely objected at trial). See, also, Smith v. Colorado Organ
Recovery Sys., 269 Neb. 578,
694 N.W.2d 610 (2005) (no abuse of
discretion to overrule motion for new trial based on errors alleged to have
occurred during trial but not objected to).
14
State v. Gutierrez, 272 Neb. 995,
726 N.W.2d 542 (2007), disapproved
on other grounds, State v. Britt, 293 Neb. 381,
881 N.W.2d 818 (2016).
Accord State v. Neujahr, 248 Neb. 965,
540 N.W.2d 566 (1995).
15
See State v. Neujahr, supra note 14.
16
Id. at 974,
540 N.W.2d at 573.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
instructions already given, but once the jury reached a unanimous verdict, the court exercised its discretion not to reply to
the question at all. The court’s reasoning in this regard is not
reflected in our record. But whatever its reasoning, Boyle did
not make a timely objection to the procedure followed by the
court in regard to the jury’s question, and she thus has waived
the right to challenge that procedure on appeal. 17 Moreover,
we cannot find it was an abuse of discretion for the court to
deny Boyle’s motion for new trial, which was premised on a
belated challenge to a discretionary trial procedure to which
Boyle never objected. 18 Boyle’s second assignment of error
has no merit.
2. Prejudgment Interest
In her third assignment of error, Boyle challenges the award
of prejudgment interest. The district court awarded prejudgment interest pursuant to § 45-104, which provides:
Unless otherwise agreed, interest shall be allowed
at the rate of twelve percent per annum on money due
on any instrument in writing, or on settlement of the
account from the day the balance shall be agreed upon,
on money received to the use of another and retained
without the owner’s consent, express or implied, from
the receipt thereof, and on money loaned or due and
withheld by unreasonable delay of payment. Unless otherwise agreed or provided by law, each charge with
respect to unsettled accounts between parties shall bear
interest from the date of billing unless paid within thirty
days from the date of billing.
[12] We have explained that this statute applies to four
types of judgments: (1) money due on any instrument in
writing; (2) settlement of the account from the day the balance shall be agreed upon; (3) money received to the use of
17
See Gutierrez, supra note 14.
18
See, Smith, supra note 13;
Connor, supra note 13.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
another and retained without the owner’s consent, express or
implied, from the receipt thereof; and (4) money loaned or
due and withheld by unreasonable delay of payment. 19 Here,
the district court determined the parties’ construction contract is an instrument in writing on which money was due.
We agree.
In Echo Group v. Tradesmen Internat., 20 we considered the
plain meaning of “any instrument in writing” for purposes of
§ 45-104. We noted that although “instrument” has several
common meanings, the definition, “specific to the legal realm,
is ‘[a] formal legal document entailing rights and obligations,
such as a contract, deed, legislative act, etc.; any document
formally drawn up so as to have legal effect.’” 21 This definition is consistent with prior Nebraska cases holding that contracts such as lease agreements 22 and escrow agreements 23 are
instruments in writing within the meaning of § 45-104, and it
supports the district court’s determination that the construction
contract between BCL and Boyle is an instrument in writing
under § 45-104.
[13] The construction contract is a formal legal document
entailing the parties’ rights and obligations, including Boyle’s
obligation to make payments to BCL. As such, we agree with
the district court that the construction contract is an instrument
in writing on which money was due, entitling BCL to an award
of prejudgment interest under § 45-104.
[14] On appeal, Boyle does not dispute that the construction
contract is an instrument in writing under § 45-104. Instead,
she argues there was no “money due” on the instrument
19
Echo Group, supra note 5; AVG Partners I v. Genesis Health Clubs,
307
Neb. 47,
948 N.W.2d 212 (2020).
20
Echo Group, supra note 5.
21
Id. at 747-48,
980 N.W.2d at 885.
22
Prudential Ins. Co. v. Greco, 211 Neb. 342,
318 N.W.2d 724 (1982).
23
Valley Cty. Sch. Dist. 88-0005 v. Ericson State Bank, 18 Neb. App. 624,
790 N.W.2d 462 (2010).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
because she disputed both the amount owed under the contract and BCL’s right to recover. But it is immaterial whether
Boyle disputed the amount or recoverability of money due
on the contract, because under § 45-104, there is no requirement that the claims described therein also be liquidated to
recover prejudgment interest. 24 In other words, money due on
an instrument in writing need not also be liquidated to support
prejudgment interest under § 45-104. 25 And given the jury’s
verdict in favor of BCL, we soundly reject Boyle’s contention
that the construction contract is not an instrument in writing
on which money was due.
The district court correctly concluded that BCL was entitled
to an award of prejudgment interest under § 45-104 because
the construction contract is an instrument in writing on which
money was due. Although the parties also advance other theories on appeal both supporting and opposing an award of prejudgment interest, we do not address such arguments because
an appellate court is not obligated to engage in analysis that
is not necessary to adjudicate the case and controversy before
it. 26 Nor do we address BCL’s arguments regarding the amount
of the prejudgment interest award, as it has not cross-appealed
on that issue.
3. Attorney Fees
For her final assignment of error, Boyle argues the court
erred in awarding attorney fees pursuant to § 52-157 of the
Nebraska Construction Lien Act. As we explain, this assignment has merit.
[15] As a general rule, attorney fees may be recovered in
a civil action only where provided for by statute or when a
24
See, Echo Group, supra note 5 (noting that when claim is of type
enumerated in § 45-104, prejudgment interest may be recovered without
regard to whether claim is also liquidated); Weyh v. Gottsch, supra note 6.
25
See id.
26
State v. Brown, 310 Neb. 318,
965 N.W.2d 388 (2021).
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314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
recognized and accepted uniform course of procedure has
been to allow recovery of attorney fees. 27 The district court
concluded that BCL was entitled to an award of attorney fees
under § 52-157. That statute provides, in relevant part, that if a
person is “wrongfully deprived of benefits to which he or she
is entitled” under the Act, then damages awarded may include
“reasonable attorney’s fees.” 28
[16] Section 52-157 thus authorizes an award of damages,
which may include attorney fees, if a person is wrongfully
deprived of benefits to which he or she is entitled under the
Act. But as we recently explained in Echo Group, § 52-157
does not authorize attorney fees in every action involving
foreclosure of a construction lien, nor does it authorize an
attorney fee award to every prevailing party in an action under
the Act. 29
At the time the district court awarded BCL attorney fees
under § 52-157, we had not yet released our opinion in Echo
Group, but the holding in that case is dispositive here. In
Echo Group, we construed the statutory requirement that a
person must be “wrongfully deprived” of benefits under the
Act to support an award of attorney fees under § 52-157(1).
We considered the purpose and intent of the Legislature as
ascertained from the plain language of the statute, and we
expressly held that § 52-157 does not authorize attorney
fees “in every action involving foreclosure of a construction
lien.” 30 Nor does it authorize an attorney fee award to every
prevailing party for any action under the Act. 31 Instead, we
held that “wrongful deprivation requires something more than
merely having to foreclose on a construction lien.” 32
27
See Echo Group, supra note 5.
28
§ 52-157(1) and (3).
29
Echo Group, supra note 5.
30
Id. at 750,
980 N.W.2d at 886.
31
Id.
32
Id. at 751,
980 N.W.2d at 887.
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BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
[17] In Echo Group, we quoted from a comment in the section of the Uniform Simplification of Land Transfers Act that
corresponds to § 52-157; that comment listed examples of the
type of “wrongful deprivation” that might support a claim for
damages under that section. 33 Those examples include a “false
or bad faith determination of damages from a prime contractor’s breach which reduces the owner’s lien liability,” or an
“owner or prime contractor [who] furnishes [an] incorrect
description of real estate with resultant mistaken recording
by [the] claimant.” 34 And all of the examples quoted in Echo
Group have in common some sort of wrongful conduct that
effectively prevents a claimant from successfully recording
or foreclosing a construction lien and renders the claimant
“wrongfully deprived of benefits to which he or she is entitled” under the Act. But as we recognized in Echo Group, a
contractor who has successfully foreclosed a construction lien
and received all the benefits to which he or she was entitled
under the Act is not entitled to an award of damages or attorney fees under § 52-157. 35 This is such a case.
BCL successfully foreclosed its construction lien and thereby
received all the benefits to which it was entitled under the Act.
Under our recent holding in Echo Group, neither the fact that
BCL had to sue Boyle to foreclose its construction lien, nor
the fact that Boyle disputed the amounts due, can establish the
type of wrongful deprivation required to support an award of
damages and attorney fees under § 52-157.
33
See Unif. Simplification of Land Transfers Act § 5-403, comment 1, 14
U.L.A. 564 (2021).
34
Id.
35
See Echo Group, supra note 5, citing Tilt-Up Concrete v. Star City/
Federal, 261 Neb. 64, 73,
621 N.W.2d 502, 510 (2001) (holding that
because contractor received “all of the benefits to which this court
determined it was entitled” under Act, contractor could not state claim for
damages under § 52-157).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
BCL PROPERTIES V. BOYLE
Cite as 314 Neb. 607
Wrongful deprivation under § 52-157 requires something
more than merely having to foreclose on a construction lien, 36
and BCL has not pointed us to anything else in the record to
establish wrongful deprivation and support an award of damages and attorney fees under the Act. Because there is no
statute or uniform course of procedure that allows recovery of
attorney fees on this record, we must vacate the district court’s
award of attorney fees.
V. CONCLUSION
For the foregoing reasons, we vacate the attorney fee award
of $115,473.90 and otherwise affirm the judgment of the district court.
Affirmed in part, and in part vacated.
36
Echo Group, supra note 5.
