Alpha Wealth Advisors v. Cook , 313 Neb. 237 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/13/2023 09:10 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237Alpha Wealth Advisors, LLC, a Nebraska limited
liability company, and Michael Hall, individually,
appellants, v. Jenna L. Cook, appellee.
___ N.W.2d ___
Filed January 13, 2023. No. S-21-972.
1. Actions: Parties: Standing. Whether a party who commences an action
has standing, and is therefore the real party in interest, presents a juris-
dictional issue.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, determination of the issue is
a matter of law which requires an appellate court to reach a conclusion
independent from the trial court.
3. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
4. Jurisdiction: Appeal and Error. Before reaching the merits of the legal
issue presented for review, an appellate court must determine whether it
has jurisdiction over the matter before it.
5. Standing: Jurisdiction: Parties. Standing refers to whether a party
had, at the commencement of the litigation, a personal stake in the out-
come of the litigation that would warrant a court’s exercise of its subject
matter jurisdiction and remedial powers on that party’s behalf.
6. Standing: Parties. To have standing, the plaintiff must have some
legal or equitable right, title, or interest in the subject matter of the
controversy.
7. ____: ____. A plaintiff does not generally have standing to bring a case
on behalf of a third party.
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 2378. Damages: Evidence. Evidence of damages must be sufficient to enable
the trier of fact to estimate actual damages with a reasonable degree of
certainty and exactness.
9. Damages: Proof. A claim for lost profits must be supported by some
financial data which permit an estimate of the actual loss to be made
with reasonable certitude and exactness.
10. Courts: Juries: Damages. While it is the jury’s duty to determine the
amount of damages, it is the duty of the trial court to refrain from sub-
mitting the issue of damages to the jury where the evidence is such that
a jury could not determine the issue without indulging in speculation
or conjecture.
11. Summary Judgment: Directed Verdict: Trial: Evidence. Evidence
offered in summary judgment proceedings, but not offered at trial, can-
not be considered in determining whether the evidence adduced at trial
is sufficient to preclude a directed verdict.
12. Trial: Witnesses: Proof. In order to predicate error upon a ruling of the
court’s refusing to permit a witness to testify, or to answer a specific
question, the record must show an offer to prove the facts sought to
be elicited.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Perry A. Pirsch, of Pirsch Legal Services, P.C., L.L.O., for
appellants.
Jane D. Hansen for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
Alpha Wealth Advisors, LLC (Alpha Wealth), and Michael
Hall (collectively the appellants) appeal the decision of the
district court for Lancaster County, Nebraska, which granted
directed verdicts against them. After a traffic accident, the
appellants sued Jenna L. Cook for negligence, alleging that
they lost commissions because the injuries that Hall received
in the accident kept him from meeting with clients for several
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237weeks. The district court found that there was insufficient
evidence to submit those claims to a jury and granted Cook’s
motion for a directed verdict against the appellants on those
claims. Finding no error, we affirm.
BACKGROUND
Hall and Cook were involved in a traffic accident in Lincoln,
Nebraska, in 2019. Cook admits that she was at fault. Hall is
a registered investment advisor and a partner in Alpha Wealth.
In suing Cook, the appellants sought damages because the
soft tissue injuries that Hall received in the accident kept him
from meeting with clients and potential clients for several
weeks. The appellants alleged that Hall worked primarily with
clients who have at least $500,000 to invest and that they
received commissions of 1.18 percent or 5 percent on invest-
ments, as well as an additional .5 percent on certain invest-
ments in subsequent years. Accordingly, the appellants claimed
that Hall’s inability to meet clients decreased his “earnings” in
the second quarter of 2019 by nearly $33,000. They similarly
claimed that Alpha Wealth “lost, conservatively, over $71,000
in gross compensation for 2019 and $19,000 each year going
forward.” They sought damages for those losses and for Hall’s
medical expenses and pain and suffering.
A jury trial was held. The appellants presented testimony
from Hall; Cassi Hillgren, operations manager for Alpha
Wealth; David Rosenbaum, a forensic economist; and Robert
Kallio, Hall’s chiropractor.
Hillgren’s Testimony
Hillgren testified that she knew of at least three potential
clients whom Hall was unable to meet after the accident. She
stated that Hall typically met with 5 to 10 clients or potential
clients per week, with “one or two out of ten” meetings result-
ing in new business. She indicated that she was familiar with
the appellants’ “gross revenue,” but was not asked to specify
their revenue or their expenses.
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237Hillgren also testified that Hall’s productivity and com-
missions dropped after the accident. She indicated that Alpha
Wealth’s expenses “are taken out” of the commissions of Hall
and another agent and that it was “really hard for [them]”
after the accident “because of the income that . . . was no
longer coming in.” She attributed that decrease in revenue to
the accident.
Hall’s Testimony
Hall testified that he was unable to meet with three or four
clients after the accident. According to Hall, over 90 percent of
the people he meets with become clients. Hall explained that
he and Alpha Wealth received a commission of between .5 and
3 percent on investments and, in certain cases, in subsequent
years. He stated that those commissions were “gross revenue
paid to Alpha Wealth” and that the company’s expenses “come
out of this gross revenue.” He also testified that he is “by
far” the “largest income producer for [his] firm.” When asked
how the accident “impacted the [company’s] revenue stream,”
Hall stated that it “basically cost [him] a full month of work
. . . that amounts to $40,000 of revenue coming in, by me not
being able to get out and see people.”
On cross-examination, Hall testified that he “personally
lost $32,000” after the accident and that “Alpha Wealth also
lost income.” He initially stated that the company’s claim
was “the same” as his, but later clarified that it was $71,000.
He stated that his concern as to Alpha Wealth “is the future
income from the people we would have got during that time
. . . . The trails on all that business . . . over the next five to
ten years . . . .”
Rosenbaum’s Testimony
Rosenbaum testified that he reviewed “Hall’s commission
statements” from 2018 and 2019 and found a “variance of
just over $32,000” between the commissions received in the
second quarter of 2019 and the commissions received in
other quarters. The appellants repeatedly attempted to elicit
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237testimony from Rosenbaum that the accident caused that
decrease. However, Cook objected on foundational grounds.
The district court agreed, but noted that the appellants could
make an offer of proof.
On cross-examination, Rosenbaum agreed that the commis-
sions in any given month can reflect work with clients in prior
months and that “whatever was going on in the second quarter
may have been a result of . . . the first quarter.”
Kallio’s Testimony
Kallio testified that he had been Hall’s chiropractor since
2011. The appellants repeatedly sought to have Kallio opine
that the accident caused Hall to lose productivity. However,
Cook objected to those questions on foundational grounds, and
her objections were sustained. Kallio did testify that Hall’s
diagnoses after the accident would have made it painful to sit
at a desk and work at a computer and that he advised Hall to
“take more breaks.”
On cross-examination, Kallio testified that Hall had a his-
tory of neck and back pain and was treated for such pain 3 days
before the accident. Kallio also testified that 3 days after the
accident, Hall stated on a medical form that he had been able
to work since the accident and that his pain was “moderate.”
At the conclusion of this testimony, the appellants rested
their case without making an offer of proof. Cook then moved
for a directed verdict against the appellants on their claims
for lost commissions. As to Alpha Wealth, Cook argued that
although the company is “listed as a plaintiff,” no evidence
had been submitted defining or explaining its claim. Similarly,
Cook argued that there was no evidence to support Hall’s claim
for “lost earnings, lost commissions”; “[i]t’s all speculation.”
Cook also indicated that she had initially understood Hall’s
claims to be his own, but that the appellants were now mak-
ing claims on behalf of Alpha Wealth that suggested they were
“asking for double damages.”
The appellants countered that there was testimony regarding
“gross revenue” lost by both of the appellants. They argued
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237that Alpha Wealth’s involvement had been clear from the start
given that Alpha Wealth was named as a plaintiff and argued
that it is a basic principle of agency law that the commissions
Hall received while working as “an agent for his company”
belong to the company. They also argued that Cook submitted
nothing to suggest another explanation for the decrease in com-
missions and argued that a jury could reasonably infer from
the testimony and evidence that Hall had suffered damages “in
excess of $32,000.”
Thereafter, the district court granted a directed verdict
against Alpha Wealth and dismissed it from the case because
“there was no evidence of any damages” to it. The district
court also granted a directed verdict against Hall on his claims
for lost commissions because the evidence submitted was
insufficient for a jury to decide the issue of damages under
Midlands Transp. Co. v. Apple Lines, Inc. 1 and inadequate to
support an award of lost profits under Evergreen Farms v. First
Nat. Bank & Trust. 2
Hall’s claims for medical expenses and pain and suffering
were then submitted to the jury, which returned a verdict in his
favor for $1,312. The district court accepted this verdict on the
record, and Hall moved for additur, arguing that the amount
awarded did not adequately compensate him. That motion
was denied.
The appellants sought review by the Nebraska Court of
Appeals, and we moved the matter to our docket.
ASSIGNMENTS OF ERROR
The appellants assign, restated, that the district court erred
in concluding that, as a matter of law, there was no evidence
of damages to Alpha Wealth or “lost income” to Hall and in
instructing the jury to “disregard” Rosenbaum’s testimony.
1
Midlands Transp. Co. v. Apple Lines, Inc., 188 Neb. 435, 197 N.W.2d 646(1972).
2
Evergreen Farms v. First Nat. Bank & Trust, 250 Neb. 860, 553 N.W.2d
728 (1996), distinguished on other grounds, ACI Worldwide Corp. v.
Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156 (2017).
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237STANDARD OF REVIEW
[1,2] Whether a party who commences an action has stand-
ing, and is therefore the real party in interest, presents a
jurisdictional issue. 3 When a jurisdictional question does not
involve a factual dispute, determination of the issue is a matter
of law which requires an appellate court to reach a conclusion
independent from the trial court. 4
[3] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. 5
ANALYSIS
Alpha Wealth’s Damages
The appellants argue that the district court erred in granting
a directed verdict against Alpha Wealth on its claim for dam-
ages because the testimony of “numerous witnesses” showed
that the company “sustained damages” due to Hall’s inability
to meet with clients following the accident. 6 They also argue
that as a basic matter of agency law, the “revenue” that Hall
produced while “working [as] an agent” for a limited liability
company belongs to the company. 7 Cook counters that the
appellants “presented no evidence . . . of any loss incurred by
Alpha Wealth.” 8
3
Millard Gutter Co. v. Shelter Mut. Ins. Co., 312 Neb. 606, 980 N.W.2d 420(2022).
4
Id.5
de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).
6
Brief for appellants at 30.
7
Id. at 29.
8
Brief for appellee at 11.
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237[4] Before reaching the merits of the legal issue pre-
sented for review, however, an appellate court must determine
whether it has jurisdiction over the matter before it. 9 A party
must have standing before a court can exercise jurisdiction,
and either a party or the court can raise a question of standing
at any time during the proceeding. 10 For the reasons discussed
below, we find that we lack jurisdiction over Alpha Wealth’s
claim for lost commissions because the company lacks stand-
ing to bring an action for lost income due to an employee’s
personal injuries.
[5-7] Standing refers to whether a party had, at the com-
mencement of the litigation, a personal stake in the outcome
of the litigation that would warrant a court’s exercise of its
subject matter jurisdiction and remedial powers on that party’s
behalf. 11 To have standing, the plaintiff must have some legal
or equitable right, title, or interest in the subject matter of the
controversy. 12 A plaintiff does not generally have standing to
bring a case on behalf of a third party. 13 The focus of the stand-
ing inquiry is not whether the claim the plaintiff advances has
merit; it is on whether the plaintiff is the proper party to assert
the claim. 14
At oral argument, the appellants agreed that this is a “personal
injury case.” However, they have not cited, nor have we been
able to identify, any principle that would allow an employer to
bring a claim for damages arising from an employee’s personal
injury. The term “personal injury” denotes a “harm caused to a
9
State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).
10
Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169(2019).
11
Equestrian Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953
N.W.2d 16 (2021).
12
Id.13
Id.14
See Millard Gutter Co., supra note 3.
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Cite as 313 Neb. 237person” or an “invasion of a personal right,” 15 and prior deci-
sions of this and other courts have recognized that an individual
who has suffered personal injuries may recover damages for
his or her medical expenses, loss of earnings, and mental and
physical pain. 16 Further, the injured individual may be able to
introduce evidence of the lost profits of a business in which
that individual has an interest to show his or her own loss of
earnings. 17 However, this does not mean that a business has its
own claim for lost profits when an individual who has an inter-
est in that business suffers personal injuries.
In this matter, Alpha Wealth purports to be a Nebraska
limited liability company. Under Neb. Rev. Stat. § 21-104(a)
(Reissue 2022), a limited liability company is an entity distinct
from its members. As such, any personal injuries alleged to
have been suffered by Hall are not personal injuries suffered
by Alpha Wealth.
The appellants suggested at oral argument that this case is
unique because Hall was the primary source of income and
revenue for Alpha Wealth. However, the record on appeal is
insufficient for us to distinguish the case on that basis even
if we were inclined to do so. For example, there is nothing
in the record that conclusively establishes that Alpha Wealth
existed as such at the time of the accident, how many mem-
bers it then had, or its sources of revenue.
15
Black’s Law Dictionary 939 (11th ed. 2019).
16
See, e.g., Gallion v. O’Connor, 242 Neb. 259, 494 N.W.2d 532 (1993);
Gray v. Wallace, 319 S.W.2d 582 (Mo. 1958); Fernwood Mining Co. v.
Pluna, 138 Ark. 459, 213 S.W. 397 (1919).
17
Kaufman v. Tripple, 180 Neb. 593, 604, 144 N.W.2d 201, 208 (1966),
quoting Osterode v. Almquist, 89 Cal. App. 2d 15, 200 P.2d 169 (1948)
(distinguishing between claims based on businesses where lost profits
“‘resulted from an inability to exercise personal efforts or skill’” and
those where lost profits are interwoven with “‘other factors, such as
invested capital, industry, and skill of others’”).
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Cite as 313 Neb. 237Hall’s Lost Income
The appellants argue that the directed verdict against Hall
was improper because witnesses other than Rosenbaum testi-
fied that Hall “lost revenue” after the accident. 18 They also
argue that the district court’s instruction to the jury to “dis-
regard Rosenbaum’s testimony” was erroneous. 19 Cook coun-
ters that Hall’s claim for “lost commissions/profits” was too
speculative to be submitted to the jury or, alternatively, that
there was no evidence that Cook’s negligence caused Hall’s
damages. 20 We agree with Cook. We find that the district court
properly determined there was insufficient evidence of dam-
ages to submit Hall’s claims for lost profits to the jury.
To prevail in an automobile negligence action, a plaintiff
must prove (1) that the defendant was negligent in one or more
of the ways alleged, (2) that this negligence was a proximate
cause of the collision, (3) that the collision was a proximate
cause of some damage to the plaintiff, and (4) the nature and
extent of that damage. 21 In this case, there is no dispute that
Cook’s negligence caused the collision. Instead, the parties
disagree as to whether that collision caused damage to Hall
and the extent of the damage.
[8,9] Damages, like any other element of a plaintiff’s cause
of action, must be pled and proved, and the burden is on the
plaintiff to offer evidence sufficient to prove the plaintiff’s
alleged damages. 22 Evidence of damages must be sufficient
to enable the trier of fact to estimate actual damages with
a reasonable degree of certainty and exactness. 23 Proof of
18
Brief for appellants at 29.
19
Id. at 37.
20
Brief for appellee at 12.
21
See Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018).
22
Dietzel Enters. v. J. A. Wever Constr., 312 Neb. 426, 979 N.W.2d 517(2022).
23
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237damages to a mathematical certainty is not required; however,
a plaintiff’s burden of offering evidence sufficient to prove
damages cannot be sustained by evidence which is speculative
and conjectural. 24 A claim for lost profits, in particular, must
be supported by some financial data which permit an estimate
of the actual loss to be made with reasonable certitude and
exactness. 25 Also, the plaintiff cannot present just evidence
of gross profits; there must also be evidence of the plaintiff’s
costs. 26 This is because only net profits are recoverable, and
the plaintiff’s net profits cannot be calculated where there is no
evidence of costs. 27
[10] While it is the jury’s duty to determine the amount of
damages, it is the duty of the trial court to refrain from sub-
mitting the issue of damages to the jury where the evidence is
such that a jury could not determine the issue without indulg-
ing in speculation or conjecture. 28 The opinions of this court
relied upon by the district court aptly illustrate this.
In Midlands Transp. Co., we affirmed a directed verdict
against the defendant on its cross-claim for breach of a cov-
enant not to compete even though there was oral testimony
from an official of the defendant that the loss of the customer
that the plaintiff allegedly poached reduced the defendant’s
gross income by “‘about $650 per week.’” 29 The defendant
did not produce any records or books along with that testi-
mony, and all amounts it cited involved gross income. 30 There
was no evidence of its expenses or the relationship between
24
Id.25
See id.26
See ACI Worldwide Corp., supra note 2.
27
Id.28
See Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67(2012).
29
Midlands Transp. Co., supra note 1, 188 Neb. at 439, 197 N.W.2d at 648.
30
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ALPHA WEALTH ADVISORS V. COOK
Cite as 313 Neb. 237its overhead and its gross revenue that could have been used
in determining its net profits. 31 As a result, we found that if
the issue of damages had been submitted to the jury, the jury
would have been left “‘to rove without guide or compass
through the limitless fields of conjecture and speculation.’” 32
Similarly, in Evergreen Farms, we found that the district
court erred in overruling the defendant’s motion for a directed
verdict even though a witness for the plantiff testified that
if the defendant had lent the money requested, the plaintiff
could have fed an additional 2,000 head of cattle for 2 years
and made a profit of 10 cents per head per day for that entire
period. 33 The plaintiff produced no business records to sup-
port that claim, and there was nothing in the record showing
its profits and losses on its cattle feeding operation. 34 As such,
we concluded that the plaintiff’s “proof regarding lost profits
[was] too speculative and conjectural” for the jury to decide
the issue. 35
In light of these decisions, we find that the district court
properly declined to submit Hall’s claims for lost commis-
sions to the jury. A claim for lost commissions is effec-
tively a claim for lost profits. 36 In support of their claim,
the appellants presented oral testimony from Hillgren, Hall,
and Rosenbaum that Hall’s commissions decreased after the
accident. Rosenbaum testified that there was a “variance of
just over $32,000” between Hall’s commissions in the sec-
ond quarter of 2019 and in the other quarters of 2018 and
31
Id.32
Id. at 440, 197 N.W.2d at 649.
33
Evergreen Farms, supra note 2.
34
Id.35
Id. at 869, 553 N.W.2d at 735.
36
Cf., Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 105 Cal. Rptr. 2d 88(2011); Equality Ins. Managers of Ill. v. McNichols, 324 Ill. App. 3d 830,
755 N.E.2d 75, 257 Ill. Dec. 973 (2001).
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Cite as 313 Neb. 2372019. However, Hillgren did not specify an amount, while
Hall gave two different amounts. Initially, he stated that the
accident “cost [him] a full month of work . . . that amounts
to $40,000 of revenue coming in,” but subsequently, he stated
that he “personally lost $32,000” after the accident. There
was nothing further. In particular, the appellants presented
no financial data through either oral testimony or business
records as to the total amount or sources of Hall’s commis-
sions by quarter or otherwise. 37 Moreover, all the appellants’
evidence involved gross revenue. They presented no evidence
from which their net profits could be calculated. There was
testimony that Hall’s commissions and Alpha Wealth’s rev-
enue were used to pay expenses, but there was no indication
of what or how much those expenses were.
[11] Neither the commissions statements referred to as
exhibits 25 and 26 in Rosenbaum’s testimony nor exhibit
13, mentioned in the appellants’ brief on appeal, can be seen
to provide the requisite financial data. None of those exhib-
its were offered and admitted into evidence at trial, as the
appellants acknowledged at oral argument. Exhibits 25 and
26 originated as attachments to exhibit 2, which was offered
and admitted into evidence at an earlier hearing on a motion
for summary judgment. As such, they are part of the record
on appeal. However, evidence offered in summary judgment
proceedings, but not offered at trial, cannot be considered in
determining whether the evidence adduced at trial is suffi-
cient to preclude a directed verdict. 38 In contrast, exhibit 13,
which purportedly showed Hall’s range of earnings in each
quarter of 2018 and 2019, is not part of the record on appeal.
37
Cf. ACI Worldwide Corp., supra note 2 (declining to opine on whether
business records are required to be submitted to support claim for lost
profits under prior decisions, but concluding that plaintiff in that case
had submitted such records, and its expert’s lost profits analysis was
supported by testimony of two other witnesses).
38
King v. Crowell Memorial Home, 261 Neb. 177, 622 N.W.2d 588 (2001).
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Cite as 313 Neb. 237Evidence which does not appear in the record cannot be con-
sidered by this court on appeal. 39
[12] The appellants’ argument that the district court erred
in directing the jury to disregard their expert’s testimony is
also not supported by the record on appeal. Nothing in the
record suggests that the district court gave such a direction
to the jury. The district court sustained Cook’s objections to
specific questions asked of Rosenbaum on direct examination,
and Rosenbaum was not allowed to opine that Hall’s alleged
injuries were the cause of the apparent decrease in his commis-
sions in the second quarter of 2019. However, the appellants
did not provide an offer of proof and have not appealed those
rulings. In order to predicate error upon a ruling of the court’s
refusing to permit a witness to testify, or to answer a specific
question, the record must show an offer to prove the facts
sought to be elicited. 40
CONCLUSION
The appellants’ arguments that the district court erred in
granting a directed verdict against them and instructing the jury
to disregard the testimony of their expert are without merit.
Accordingly, the judgment of the district court is affirmed.
Affirmed.
39
See Abboud v. Cutler, 238 Neb. 177, 469 N.W.2d 763 (1991).
40
O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).