Pierce v. Landmark Mgmt. Group ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/24/2016 09:09 AM CDT
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293 Nebraska R eports
PIERCE v. LANDMARK MGMT. GROUP
Cite as 293 Neb. 890Sybille Pierce, appellee, v.
Landmark M anagement Group,
Inc., et al., appellants.
___ N.W.2d ___
Filed June 24, 2016. No. S-14-867.
1. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
2. Trial: Appeal and Error. A general assignment that the court errone-
ously overruled objections, without supporting argument as to why the
rulings were erroneous or how they resulted in prejudice, is insufficient
to preserve the issue for appellate review.
3. Records: Appeal and Error. It is incumbent upon the appellant to
present a record supporting the errors assigned; absent such a record,
an appellate court will affirm the lower court’s decision regarding
those errors.
4. ____: ____. Rulings of the trial court which do not appear in the record
are not considered on appeal.
5. Motions for New Trial: Damages: Appeal and Error. A motion for
new trial is a prerequisite to obtaining appellate review of the issue of
excessive damages.
6. Employer and Employee: Federal Acts. Employers are covered by the
Family and Medical Leave Act of 1993 when they employ 50 or more
employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year.
7. ____: ____. Separate entities are deemed to be a single employer for
purposes of the Family and Medical Leave Act of 1993 if they meet the
integrated employer test.
8. ____: ____. When the integrated employer test is met, the employees of
all entities making up the integrated employer are counted to determine
employer coverage under the Family and Medical Leave Act of 1993.
9. Administrative Law: Employer and Employee: Federal Acts. The
regulations promulgated by the U.S. Department of Labor interpreting
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Cite as 293 Neb. 890the Family and Medical Leave Act of 1993 establish the test for deter-
mining whether legally distinct companies may be considered so inter-
related that they constitute a single employer for purposes of the act.
10. Employer and Employee. The integrated employer test involves con-
sideration of four factors: (1) common management, (2) interrelation
between operations, (3) centralized control of labor operations, and (4)
degree of common ownership/financial control.
11. ____. Under the integrated employer test, whether separate entities
are sufficiently integrated is not determined by any single factor, but,
rather, the entire relationship between the entities is to be reviewed in
its totality.
12. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
13. ____: ____. In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against whom the
judgment was granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
14. Trial: Juries: Evidence. Where the facts are undisputed or are such that
reasonable minds can draw but one conclusion therefrom, it is the duty
of the trial court to decide the question as a matter of law rather than
submit it to the jury for determination.
15. Summary Judgment: Evidence: Proof. A movant for summary judg-
ment makes a prima facie case by producing enough evidence to dem-
onstrate that the movant is entitled to a judgment if the evidence were
uncontroverted at trial. The burden of producing evidence then shifts to
the party opposing the motion, who must present evidence showing the
existence of a material fact that prevents summary judgment as a matter
of law.
16. Summary Judgment. If the movant for summary judgment establishes
a material fact, and that fact is not contradicted by the adverse party, the
court will determine that there is no issue as to that fact.
17. ____. Mere formal denials or general allegations which do not show the
facts in detail and with precision are insufficient to prevent an award of
summary judgment.
18. Summary Judgment: Affidavits. A party may not create an issue of
fact at the summary judgment stage by submitting an affidavit that con-
tradicts his or her earlier testimony.
19. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
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Cite as 293 Neb. 890discretion is involved only when the rules make discretion a factor in
determining admissibility.
20. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
21. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
22. Employment Security. Under Nebraska law, unemployment compen-
sation benefits are not a collateral source, because they are funded by
employer contributions. Generally, such benefits should be deducted
from a backpay award in employment cases.
23. Appeal and Error. A lower court cannot commit error in resolving an
issue never presented and submitted to it for disposition.
24. Rules of Evidence: Witnesses: Other Acts. The trial court has discre-
tion, pursuant to Neb. Evid. R. 608(2)(a), Neb. Rev. Stat. § 27-608(2)(a)
(Reissue 2008), to admit evidence of prior conduct to impeach a wit-
ness’ credibility, so long as the evidence is probative of the witness’
character for truthfulness.
25. Rules of Evidence: Taxes. Where evidence of omissions or inac-
curacies on tax returns does not necessarily suggest dishonesty, such
evidence is generally too tenuous to be probative of truthfulness or
untruthfulness.
26. ____: ____. Evidence that a witness did not report certain income on his
or her tax returns, without more, is not sufficiently probative of charac-
ter for truthfulness or untruthfulness to be admissible under Neb. Evid.
R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008).
27. Verdicts: Appeal and Error. In determining the sufficiency of the evi-
dence to sustain a verdict in a civil case, an appellate court considers the
evidence most favorably to the successful party and resolves evidential
conflicts in favor of such party, who is entitled to every reasonable
inference deducible from the evidence.
28. Trial: Evidence: Witnesses: Juries: Appeal and Error. All conflicts in
the evidence, expert or lay, and the credibility of the witnesses are for
the jury and not for the appellate court.
29. Federal Acts: Attorney Fees. Under the Family and Medical Leave
Act of 1993 and the ADA Amendments Act of 2008, the prevailing
party is entitled to an award of reasonable attorney fees.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
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PIERCE v. LANDMARK MGMT. GROUP
Cite as 293 Neb. 890Molly Adair-Pearson, of Adair Pearson Law, for appellants.
Craig F. Martin, Sarah F. Macdissi, and Sarah M. Smith, of
Lamson, Dugan & Murray, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Stacy, J.
I. NATURE OF CASE
Sybille Pierce sued her former employers claiming she was
terminated in violation of the Family and Medical Leave Act
of 1993 (FMLA)1 and the ADA Amendments Act of 2008
(ADAAA).2 The trial court granted partial summary judgment
in favor of Pierce on the issue of whether the employers were
“integrated” and met the threshold number of employees to
be covered by the FMLA. The case was then tried to a jury,
which returned a verdict for Pierce on both the FMLA and the
ADAAA claims. The employers timely appealed. Finding no
reversible error, we affirm.
II. FACTS
1. Pierce Work History
From 2004 through 2011, Pierce worked for two companies,
both of which were owned by David Paladino. From 2004
through 2008, Pierce was the operations manager for Landmark
Management Group, Inc. (Landmark), a property management
business. From 2008 to 2009, Pierce managed a storage facility
for Cornhusker Road LLC, doing business as Dino’s Storage
(Dino’s Storage). While managing the storage facility, Pierce
also rented moving trucks to customers, but it is unclear from
the record whether the truck rental business was operated at the
time through Dino’s Storage or through another of Paladino’s
companies, Dodge Street, LLC. From 2009 until February 22,
1
29 U.S.C. § 2601 et seq. (2012).
2
42 U.S.C. § 12101 et seq. (2012).
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Cite as 293 Neb. 8902011, Pierce worked as a legal assistant for Landmark and also
continued renting moving trucks. During this period, she was
paid by Landmark for her work as a legal assistant and was
paid by Dino’s Storage for her work renting trucks.
In 2010, Pierce was diagnosed with “Idiopathic
Thrombocytopenic Purpura,” which is a blood disorder that
causes abnormally low platelet counts and predisposes patients
to a high risk of spontaneous bleeding. Pierce’s treatment
included steroid injections, intravenous immunoglobin infu-
sions, and eventually a splenectomy surgery in November
2010, for which she took paid vacation time. After recover-
ing from surgery, Pierce returned to work at Landmark and
Dino’s Storage.
In January 2011, Pierce’s condition worsened and her doc-
tor recommended 4 weeks of infusion treatment using a
chemotherapy drug. After her first chemotherapy treatment,
Pierce sent her supervisor, Mary Anderson, an e-mail describ-
ing her reaction to the treatment. In the e-mail, Pierce advised
Anderson she was going to talk with her doctor about whether
she should take “medical leave” while undergoing the treat-
ment. In reply to Pierce’s e-mail, Anderson wrote: “We would
like you to come back when you are able to be here every
day and give 100% and not miss any days in the foreseeable
future.” To this, Pierce replied: “[O]k. I just want to make
sure I understand correctly. You want me to take off from
now until this treatment is over, which would be sometime in
February. And you would hold my position for me until then.”
Anderson responded: “Yes, we want you to take the time off
and when you are able to come back at 100% you will have
a job.” The following morning, Anderson sent an e-mail to
a group of Landmark and Dino’s Storage recipients advis-
ing, “FYI, [Pierce] is taking a medical leave until sometime
in February.”
By mid-February 2011, Pierce had finished her treatment
and her blood disorder was in remission. On February 21,
Pierce called Anderson and advised she was ready to return to
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Cite as 293 Neb. 890work. The next day, Pierce had a meeting with Paladino and
Anderson. The parties do not dispute that during this meeting,
Pierce was told her former position had been filled. However,
the parties disagree about whether Pierce was offered another
position during the meeting. They also disagree about whether
Pierce quit her employment or was terminated.
According to Pierce, during the meeting, they discussed
other possible jobs within the companies Paladino owned,
but Paladino wanted assurances that Pierce’s condition would
not result in significant absences. Pierce testified the meet-
ing ended without any job offer; Paladino and Anderson told
Pierce they wanted to talk things over and would call her later.
According to Pierce, Anderson called her later the same eve-
ning to advise, “[Paladino] and I talked it over and we’re going
to let you go.” The next day, Pierce’s immediate supervisor at
Dino’s Storage sent an e-mail to other Dino’s employees which
read: “I’m going to keep this short so I don’t say something I
will regret. [Paladino] fired [Pierce] yesterday because she and
her doctors couldn’t guarantee that her treatment will keep her
permanently healthy.”
Paladino and Anderson denied terminating Pierce’s employ-
ment. According to both Paladino and Anderson, Pierce was
offered two different positions during the meeting. Pierce told
them she wanted to go home and speak with her husband about
the job offers. Anderson testified that when she telephoned
later that evening to follow up, Pierce turned down both
job offers.
Pierce sued Landmark, Dino’s Storage, and Dodge Street,
claiming she had been unlawfully terminated. We refer to these
entities collectively as “the employers.”
2. The Employers
Landmark is a third-party management company. It is owned
by Paladino, and it manages various storage facilities, many
of which are also owned by Paladino. Landmark has sepa-
rate management agreements with each of the storage facili-
ties. Maintenance employees of Landmark generally report
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Cite as 293 Neb. 890to Landmark’s main office at 2702 Douglas Street in Omaha,
Nebraska, and from there, they are dispatched to the various
storage facilities. The parties stipulated that at all relevant
times, Landmark had 38 employees.
Dino’s Storage operates a storage facility in Omaha. Dino’s
Storage is a trade name used by the storage facility; the actual
entity is Cornhusker Road, and Paladino is the controlling
shareholder. Dino’s Storage operates out of the same space as
does Landmark—2702 Douglas Street in Omaha. The parties
stipulated that Dino’s Storage had 17 employees at all rel-
evant times.
Dodge Street owns the property at 2702 Douglas Street out
of which Landmark and Dino’s Storage operate. Paladino is
also a shareholder of Dodge Street. According to Paladino,
“[t]he primary role of Dodge Street, LLC, is [to] own and
operate [the] storage facility.” The parties stipulated that Dodge
Street had no employees during the relevant time period. The
role of Dodge Street in Pierce’s claims is not entirely clear
from the record, but no party suggests any error associated
with its inclusion in this lawsuit.
3. Procedural History
(a) Lawsuit
Pierce filed an employment discrimination suit in the district
court for Douglas County, alleging violations of the FMLA,
the ADAAA, and the Nebraska Fair Employment Practice Act.3
Only the FMLA and the ADAAA claims proceeded to trial.
In connection with the FMLA claim, Pierce claimed the
employers were “integrated” for purposes of meeting the
FMLA employee numerosity requirement,4 alleging:
[T]he [employers] share a common owner, . . . Paladino;
[the employers] operate out of shared office space located
at 2702 Douglas Street, Omaha, NE 68131; all billing
3
Neb. Rev. Stat. § 48-1101 et seq. (Reissue 2010).
4
See 29 U.S.C § 2611(4)(A)(i).
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Cite as 293 Neb. 890and accounting for the [employers] is run out of the same
office space located at 2702 Douglas Street; and [the
employers] share common employees, including common
maintenance, information technology, and bookkeeping
employees. In addition . . . Pierce was employed by both
Landmark and Dino’s.
In their answer, the employers generally denied the allegations
in Pierce’s complaint and raised the affirmative defense that
Pierce failed to mitigate her damages.
(b) Summary Judgment
Pierce moved for partial summary judgment, asking the court
to find as a matter of law that the employers were integrated
for purposes of the FMLA. The district court granted summary
judgment in favor of Pierce, finding “there is no genuine issue
of material fact as to the [employers’] being integrated . . . for
purposes of the [FMLA].”
(c) Motions in Limine
Before trial, Pierce filed three motions in limine. The first
motion sought to exclude evidence that Pierce had received
unemployment compensation benefits after leaving Landmark’s
employ. The second motion sought to exclude evidence that
Pierce did not report, on her state and federal tax returns,
income she earned working as a nanny. The third motion sought
to exclude an undated, unsigned, handwritten note the employ-
ers planned to offer in support of their claim that Pierce was
offered, and refused, alternative positions with the employers.
The trial court sustained all three of Pierce’s motions in limine,
over the employers’ objection. At trial, the employers were not
permitted to offer the excluded evidence, but made detailed
offers of proof outside the jury’s presence.
(d) Jury Trial and Posttrial Motions
Following a 3-day trial, the jury returned a verdict for Pierce
and awarded damages on both the FMLA and the ADAAA
claims. Pierce then filed a motion seeking liquidated damages
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Cite as 293 Neb. 890under the FMLA in an amount equal to the amount of compen-
satory damages awarded by the jury.5 The district court granted
Pierce’s motion and entered judgment for Pierce on the FMLA
claim in the amount of $19,281.36 in backpay, $19,281.36 in
liquidated damages, and prejudgment interest at the statutory
rate. On the ADAAA claim, judgment was entered for Pierce
in the amount of $2,500 in “Other” damages and $28,537.63 in
punitive damages.
Pierce then moved for an award of attorney fees and costs
under both the FMLA and the ADAAA.6 The court awarded
her $67,979.70 in attorney fees and $2,054.95 in costs.
Thereafter, the employers apparently filed a motion for new
trial which included a request that the trial judge recuse him-
self. The record shows a hearing was held on the motion, but
neither the employers’ motion nor the court’s order ruling on it
appear in the record.
The employers filed this appeal, and we moved the case
to our docket on our own motion pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state.7
III. ASSIGNMENTS OF ERROR
The employers assign, rephrased, that the trial court erred
in (1) granting partial summary judgment on the integrated
employer issue, (2) excluding evidence that Pierce received
unemployment benefits, (3) excluding evidence that Pierce
did not report nanny income on her tax returns, (4) exclud-
ing the unsigned handwritten note, (5) admitting testimony
and exhibits which lacked foundation and contained hearsay,
(6) refusing to give certain jury instructions requested by the
employers, (7) entering judgment on a verdict which was not
supported by sufficient evidence, (8) entering judgment on
a verdict which awarded excessive damages, (9) awarding
5
See 29 U.S.C. 2617(a)(1)(A)(iii).
6
See 29 U.S.C. § 2617(a)(3) and 42 U.S.C. § 12205.
7
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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Cite as 293 Neb. 890excessive attorney fees, and (10) overruling the employers’
motion for new trial.
IV. ANALYSIS
1. M atters Properly Before Us
[1,2] Four of the employers’ assignments of error are not
properly presented for appellate review. First, the employers
broadly assign that “[t]he trial court erred in overruling [the
employers’] objections and allowing testimony and receiving
exhibits containing hearsay and lacking in foundation.” Their
brief identifies 17 separate rulings relating to this assign-
ment of error, but other than referencing the page and line of
the rulings, the brief presents no argument. An alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by
an appellate court.8 A general assignment that the court erro-
neously overruled objections, without supporting argument
as to why the rulings were erroneous or how they resulted
in prejudice, is insufficient to preserve the issue for appel-
late review.9
[3] The employers also assign that “[t]he trial court erred
in refusing to give certain jury instructions requested by [the
employers].” Neither the instructions given by the court nor
those proposed by the parties were included in the record on
appeal. Although the jury instruction conference was included
in the bill of exceptions, we cannot glean from the discussion
therein the full text of the instructions given or those pro-
posed and rejected. As a general proposition, it is incumbent
upon the appellant to present a record supporting the errors
assigned; absent such a record, an appellate court will affirm
the lower court’s decision regarding those errors.10 Here, the
8
See Stekr v. Beecham, 291 Neb. 883, 869 N.W.2d 347 (2015).
9
See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008).
10
Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013);
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
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Cite as 293 Neb. 890record is insufficient to support any assigned error regarding
the jury instructions.
[4,5] Finally, the employers assign that the trial court erred
in overruling their motion for new trial, which included a
request to recuse the judge. Our appellate record includes the
hearing on the motion but does not contain the motion itself
or any order ruling on the same. Argument during the hear-
ing indicates there was a question about the timelines of the
motion. Rulings of the trial court which do not appear in the
record are not considered on appeal.11 We conclude the record
is insufficient to support the employers’ assignment related to
the motion for new trial. And because a motion for new trial
is a prerequisite to obtaining appellate review of the issue of
excessive damages,12 we likewise conclude the employers’
assignment of error relating to excessive damages is not prop-
erly before us.
2. Integrated Employer Under FMLA
[6-8] Employers are covered by the FMLA when they
employ 50 or more employees for each working day during
each of 20 or more calendar workweeks in the current or pre-
ceding calendar year.13 Separate entities are deemed to be a
single employer for purposes of the FMLA “if they meet the
integrated employer test.”14 When the integrated employer test
is met, the employees of all entities making up the integrated
employer are counted to determine employer coverage under
the FMLA.15
11
Durkan v. Vaughan, 259 Neb. 288, 609 N.W.2d 358 (2000).
12
See Neb. Rev. Stat. § 25-1912.01(2) (Reissue 2008) (stating that “[w]hen
an action has been tried before a jury . . . a motion for a new trial shall be
a prerequisite to obtaining appellate review of the issue of inadequate or
excessive damages”).
13
29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104(a) (2015).
14
29 C.F.R. § 825.104(c)(2).
15
Id.- 901 -
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Cite as 293 Neb. 890The parties stipulated that during the relevant period,
Landmark had 38 qualifying employees, Dino’s Storage had
17 qualifying employees, and Dodge Street had no employees.
Therefore, the FMLA’s numerosity requirement is met only if
Landmark and Dino’s Storage are deemed to be integrated for
purposes of the FMLA.
[9,10] The regulations promulgated by the U.S. Department
of Labor interpreting the FMLA establish the test for determin-
ing whether legally distinct companies may be considered so
interrelated that they constitute a single employer for purposes
of the FMLA.16 This integrated employer test involves con-
sideration of four factors: (1) common management, (2) inter-
relation between operations, (3) centralized control of labor
operations, and (4) degree of common ownership/­ financial
control.17 This test has been described as appreciating that
“small businesses—i.e. those with less than 50 employees—are
not subject to the FMLA’s ‘onerous requirement of keeping an
unproductive employee on the payroll,’ while simultaneously
preventing companies from structuring their business to avoid
labor laws.”18 The same four-factor test is applied in other
types of employment discrimination19 and labor cases.20
[11] The first factor focuses on the degree to which different
entities share common management and includes consideration
16
Id.17
Id.18
Grace v. USCAR, 521 F.3d 655, 664 (6th Cir. 2008), quoting Engelhardt v.
S.P. Richards Co., Inc., 472 F.3d 1 (1st Cir. 2006).
19
See, e.g., Sandoval v. American Bldg. Maintenance Industries, 578 F.3d
787 (8th Cir. 2009); Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th
Cir. 1977); Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d
791 (2002).
20
See, e.g., Hall Cty. Pub. Defenders v. County of Hall, 253 Neb. 763, 571
N.W.2d 789 (1998), disapproved on other grounds, Hyannis Ed. Assn. v.
Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005);
American Fed. S., C., & M. Emp., AFL-CIO v. County of Lancaster, 196
Neb. 89, 241 N.W.2d 523 (1976).
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Cite as 293 Neb. 890of whether the same individuals manage or supervise the differ-
ent entities and whether the entities have common officers and
boards of directors.21 The second factor examines the interrela-
tion of operations, including whether the entities share manag-
ers or personnel, payroll, insurance programs, office space, or
equipment.22 The third factor, centralized control, examines
the extent to which labor decisions involving the entities are
centralized, including oversight of personnel and decisions of
hiring, firing, and discipline.23 And the fourth factor, degree of
common ownership or financial control, focuses on the extent
to which entities share common owners, including whether one
entity owns shares of the other.24 Whether separate entities are
sufficiently integrated is not determined by any single factor,
but, rather, the entire relationship between the entities is to be
reviewed in its totality.25
The district court granted Pierce’s motion for partial sum-
mary judgment and found as a matter of law that the employ-
ers were “integrated” for purposes of the employee numerosity
requirement of the FMLA. The employers assign this as error
and argue there were material issues of fact which precluded
summary judgment.
[12-15] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.26 In reviewing a summary judgment, the court
views the evidence in the light most favorable to the party
21
Davis v. Ricketts, 765 F.3d 823 (8th Cir. 2014).
22
Id.23
Id. See, also, Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir. 1993); Baker
v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977).
24
Davis, supra note 21.
25
29 C.F.R. § 825.104(c)(2).
26
DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
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Cite as 293 Neb. 890against whom the judgment was granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence.27 Where the facts are undisputed or are such that rea-
sonable minds can draw but one conclusion therefrom, it is the
duty of the trial court to decide the question as a matter of law
rather than submit it to the jury for determination.28 A movant
for summary judgment makes a prima facie case by producing
enough evidence to demonstrate that the movant is entitled
to a judgment if the evidence were uncontroverted at trial. At
that point, the burden of producing evidence shifts to the party
opposing the motion,29 who must present evidence showing the
existence of a material fact that prevents summary judgment as
a matter of law.30
(a) Pierce’s Evidence on
Summary Judgment
We begin our summary judgment analysis by considering
whether Pierce produced enough evidence to make a prima
facie case demonstrating she was entitled to judgment on
the integrated employer issue if the evidence were uncontro-
verted at trial. In support of her summary judgment motion,
Pierce offered her own affidavit, the deposition testimony of
Anderson (the operations manager for Landmark), the deposi-
tion testimony of Paladino, and the employers’ written discov-
ery responses.
Regarding the common management factor, this evidence
showed that Paladino makes the high-level management deci-
sions for both Landmark and Dino’s Storage. Paladino explained
in his deposition that he has a manager who “handle[s] the
Dino’s Storage side of the business” and another who “handles
27
Id.28
Sweem v. American Fidelity Life Assurance Co., 274 Neb. 313, 739
N.W.2d 442 (2007).
29
Durkan, supra note 11.
30
See Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
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Cite as 293 Neb. 890the Landmark part of the business,” but “a lot of it was directed
by me [and] implemented by them.”
Regarding the interrelation of operations factor, this evi-
dence showed significant interrelation between Landmark and
Dino’s Storage. The two entities share office space and at
least some personnel. According to Paladino’s deposition tes-
timony, Landmark’s bookkeeper is also responsible for paying
the bills, preparing reports, and handling bank deposits and
reconciliation for Dino’s Storage. The same project man-
ager oversees construction projects for both Landmark and
Dino’s Storage and reports directly to Paladino. One indi-
vidual works as the “IT guy” for both Landmark and Dino’s
Storage. Paladino testified there is a common payroll process
under which all Dino’s Storage employees report their hours
to, and are paid through, Landmark. Paladino explained he
uses the combined payroll system as a “way to save money,”
because when each entity had its own payroll process “it
was very, very expensive to do it that way . . . . When you
start piling up those different entities, those fees add up.”
Pursuant to management agreements between Landmark and
Dino’s Storage, Landmark’s maintenance employees report
to work at Landmark, and from there they are dispatched to
various Dino’s Storage facilities to perform work as needed.
Finally, this evidence showed Pierce worked simultaneously
for Landmark and Dino’s Storage.
Regarding the centralized control of labor factor, the evi-
dence contained many examples of centralized staffing and
shared work processes between Landmark and Dino’s Storage.
In addition to the common payroll process, the centralized
accounting and bookkeeping process, and the centralized tech-
nical support about which Paladino testified, he testified to
several examples of moving employees between entities to
accommodate overall labor needs. Pursuant to a management
agreement, Landmark’s maintenance employees are dispatched
to perform a wide variety of work, including the maintenance
of Dino’s Storage facilities. But the evidence of centralized
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Cite as 293 Neb. 890labor decisions between Landmark and Dino’s Storage went
beyond the management agreements. For instance, Paladino
moved an employee from Landmark (where she made depos-
its for storage facilities and audited sales files) and “put her
in charge of one of the storage facilities,” after which he
“changed her role” again so “she was doing a little bit of work
for Landmark.” And Pierce was hired to work initially for
Landmark, was then moved to work as a manager for Dino’s
Storage, and then was moved back to Landmark while simul-
taneously working part time for Dino’s Storage. Paladino’s
active role in personnel decisions involving Landmark and
Dino’s Storage is also evidenced by his deposition testimony
that he was the one to hire Pierce, the one to move her between
Landmark and Dino’s Storage, and the one to offer her other
positions when she was ready to return to work.
Finally, regarding the common ownership factor, the evi-
dence was undisputed that Paladino owns 100 percent of
Landmark and is the primary shareholder of Dino’s Storage.
Considering this evidence in its totality, we conclude Pierce
made a prima facie case that the employers were integrated
under the four-factor test. The evidence Pierce produced was
sufficient to demonstrate she would prevail on this issue if the
evidence were uncontroverted at trial. The burden to produce
evidence showing a genuine issue of fact shifted to the par-
ties opposing the motion,31 and we now consider the evidence
adduced by the employers in response.
(b) The Employers’ Evidence
on Summary Judgment
At the summary judgment hearing, the employers submitted
only the affidavit of Paladino. Paladino averred generally that
Landmark, Dino’s Storage, and Dodge Street “are all separate
entities with different operations and lines of business. Each
company has separate bookkeeping, separate employees, and
separate policies.” We examine these statements to determine
31
See Durkan, supra note 11.
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Cite as 293 Neb. 890whether they created a genuine issue of material fact. In doing
so, we are guided by familiar principles.
[16,17] If the movant for summary judgment establishes a
material fact, and that fact is not contradicted by the adverse
party, the court will determine that there is no issue as to that
fact.32 Mere formal denials or general allegations which do not
show the facts in detail and with precision are insufficient to
prevent an award of summary judgment.33
[18] The affidavit submitted by Paladino did not create any
issue of material fact regarding whether the employers were
integrated. Paladino’s conclusions that Landmark and Dino’s
Storage had “separate bookkeeping” and “separate employ-
ees” were unsupported by any facts in the affidavit and were
inconsistent with his earlier deposition testimony about shared
bookkeeping and shared employees. A party may not create an
issue of fact at the summary judgment stage by submitting an
affidavit that contradicts his or her earlier testimony.34
As it regarded the material issue of whether the employers
were integrated, Paladino’s affidavit consisted of little more
than conclusions and did not create an issue of fact. As such,
the employers failed to meet their burden of presenting evi-
dence showing the existence of a material issue of fact prevent-
ing summary judgment.
On this record, we conclude the trial court did not err in
granting partial summary judgment and finding as a matter
of law that the employers are integrated for purposes of the
FMLA. In light of this conclusion, it is unnecessary to address
Pierce’s alternative argument that the employers are also “joint
employers” under the FMLA.35
32
See Battle Creek State Bank v. Preusker, 253 Neb. 502, 571 N.W.2d 294(1997).
33
See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).
34
See Popoalii v. Correctional Medical Services, 512 F.3d 488 (8th Cir.
2008).
35
Brief for appellants at 24, citing 29 C.F.R. § 825.106 (2015).
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Cite as 293 Neb. 8903. Rulings on Motions
in Limine
The employers assign error to the trial court’s rulings on
Pierce’s motions in limine. We address each motion in limine
separately, applying the following standards of review.
[19-21] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make discre-
tion a factor in determining admissibility.36 When the Nebraska
Evidence Rules commit the evidentiary question at issue to
the discretion of the trial court, an appellate court reviews the
admissibility of evidence for an abuse of discretion.37 Because
the exercise of judicial discretion is implicit in determina-
tions of admissibility under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), the trial court’s decision will not
be reversed absent an abuse of discretion.38 In a civil case,
the admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing party.39
(a) Unemployment Benefits
Pierce filed a motion in limine seeking to “exclude at trial
any mention of or reference to the fact that [she] may have
received unemployment benefits.” In support of excluding the
evidence, Pierce primarily argued that evidence of unemploy-
ment benefits should be excluded under the collateral source
rule, which provides generally that benefits received by a
plaintiff from a source wholly independent of and collateral
to the wrongdoer will not diminish the damages otherwise
36
See Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).
37
R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121(2011).
38
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
39
See, id.; Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
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Cite as 293 Neb. 890recoverable from the wrongdoer.40 Pierce also argued the evi-
dence, even if relevant, should be excluded under § 27-403,
because any probative value was substantially outweighed by
the danger of unfair prejudice. After a hearing, the trial court
granted the motion in limine without elaboration. During
trial, the employers were not allowed to offer evidence of
the amount of unemployment benefits Pierce received, but
made an offer of proof indicating she had been paid a total
of $7,615.30.
On appeal, the employers assign error only to the district
court’s decision to prohibit the jury from hearing evidence of
unemployment benefits. The employers argue that unemploy-
ment benefits are not a collateral source under Nebraska law
and further argue that they were prejudiced by the exclusion of
such evidence, because “the unemployment benefits received
should have been deducted from the damages award.”41
[22] The employers are correct that under Nebraska law,
unemployment compensation benefits are not considered a
collateral source for purposes of damages in employment
cases. In Airport Inn v. Nebraska Equal Opp. Comm.,42 we
held that unemployment compensation benefits are not a col-
lateral source, because they are funded by employer contri-
butions, and we concluded the district court was correct to
deduct unemployment benefits from a backpay award under
the Nebraska Fair Employment Practice Act. Several years
later, in IBP, inc. v. Sands,43 we reiterated and strengthened
our holding in Airport Inn, stating broadly that “unemploy-
ment compensation awards should be deducted from any back-
pay award.”
40
Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273(2013).
41
Brief for appellants at 30.
42
Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d
727 (1984).
43
IBP, inc. v. Sands, 252 Neb. 573, 582, 563 N.W.2d 353, 359 (1997).
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Cite as 293 Neb. 890Pierce directs us to cases from other jurisdictions which
hold that unemployment benefits are a collateral source.44 She
urges us to revisit our holdings in Airport Inn and IBP, inc. and
either adopt the rationale of those courts which prohibit such
deductions altogether45 or, alternatively, adopt the rationale of
those courts which conclude the deduction of unemployment
benefits from backpay awards is a matter properly left to the
sound discretion of the trial court.46 While we acknowledge the
split of authority on this issue, we see no principled reason in
the present case to revisit our holdings in Airport Inn and IBP,
inc. And because the issue is not presented on this record, we
leave for another day consideration of whether deductions from
backpay awards under our holdings in Airport Inn and IBP, inc.
are mandatory or discretionary.
In this appeal, the employers assign that the district court
erred in prohibiting them from presenting evidence to the jury
that Pierce received unemployment benefits. The employers
generally equate this evidentiary ruling to a legal finding that
they were not entitled to an offset from any backpay award due
to Pierce’s receipt of unemployment benefits.
[23] But this is incorrect. The district court’s decision not
to permit the jury to hear evidence of Pierce’s unemploy-
ment benefits did not determine whether the employers were
entitled to an offset of those benefits under our holdings in
Airport Inn and IBP, inc. Nor did the court’s evidentiary ruling
44
See, Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160 (6th Cir.
1996), amended on denial of rehearing 97 F.3d 833; Gaworski v. ITT
Commercial Finance Corp., 17 F.3d 1104 (8th Cir. 1994); Craig v. Y & Y
Snacks, Inc., 721 F.2d 77 (3d Cir. 1983).
45
See, e.g., Thurman, supra note 44; Gaworski, supra note 44; Craig, supra
note 44; Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549 (11th Cir. 1983);
Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir. 1982).
46
See, e.g., Dailey v. Societe Generale, 108 F.3d 451 (2d Cir. 1997); Lussier
v. Runyon, 50 F.3d 1103 (1st Cir. 1995); Cooper v. Asplundh Tree Expert
Co., 836 F.2d 1544 (10th Cir. 1988); Hunter v. Allis-Chalmers Corp.,
Engine Div., 797 F.2d 1417 (7th Cir. 1986).
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Cite as 293 Neb. 890preclude the employers from seeking such a deduction. To the
contrary, once the jury awarded backpay, the employers could
have asked the trial court to deduct as a matter of law the
unemployment benefits Pierce received.47 Several postaward
motions were filed in this case, including Pierce’s motion for
liquidated damages in an amount equal to the jury’s award of
compensatory damages under the FMLA. Yet, there is noth-
ing in the record or the briefing which suggests the employ-
ers presented a posttrial motion of any sort asking the trial
court to apply our holdings in Airport Inn and IBP, inc. and
deduct Pierce’s unemployment compensation benefits from
the jury’s backpay award. A lower court cannot commit error
in resolving an issue never presented and submitted to it for
disposition.48 We conclude the assignment of error relating
to whether the jury should have been permitted to hear evi-
dence of unemployment benefits did not properly preserve
the issue the employers attempt to raise on appeal—the issue
of whether a deduction from the jury’s award of backpay was
legally appropriate.
To the extent the employers’ briefing can fairly be construed
to suggest the trial court should have reduced the jury’s back-
pay award because it was excessive, the issue of excessive
damages is not before us. As discussed previously, a motion
for new trial is a prerequisite for a claim of excessive dam-
ages.49 Because no motion for new trial is properly before us,
the prerequisite for obtaining appellate review of an excessive
damages issue has not been met. This assignment of error does
not require reversal.
47
See, e.g., Dailey, supra note 46 (after jury award of backpay, employer
filed posttrial motion to deduct unemployment compensation benefits from
backpay award).
48
See In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803(2015).
49
See § 25-1912.01(2).
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Cite as 293 Neb. 890(b) Nanny Income
Pierce filed a motion in limine seeking to exclude evidence
that she did not include, on her state or federal income tax
returns, earnings received from working as a nanny. In support
of her motion, Pierce argued such evidence was not relevant
and was more prejudicial than probative. The court sustained
the motion and excluded the evidence. The employers assign
this as error, arguing the evidence was probative of Pierce’s
character for truthfulness or untruthfulness and should have
been received pursuant to Neb. Evid. R. 608(2)(a), Neb. Rev.
Stat. § 27-608(2)(a) (Reissue 2008).
Preliminarily, we note the jury heard considerable evidence
regarding the money Pierce earned working as a nanny for
various families. Evidence of these earnings was relevant to
Pierce’s claim for backpay. Testimony was offered regard-
ing the time periods during which Pierce worked as a nanny
and the amount of money she was paid by each family,
but the employers were not allowed to elicit testimony on
cross-examination that Pierce had not reported the “nanny-
ing” income on her tax returns. During trial, the employers
renewed their objection to the court’s ruling on the motion in
limine and made an offer of proof that, if permitted to ques-
tion Pierce on the issue, she would testify she “did not report
any of the income she earned from working as a nanny on
her state and federal income taxes.” On appeal, the employ-
ers argue it was prejudicial error to exclude such evidence
because it was probative of Pierce’s character for truthfulness
or untruthfulness.
[24] The trial court has discretion, pursuant to § 27-608(2)
(a), to admit evidence of prior conduct to impeach a witness’
credibility, so long as the evidence is probative of the witness’
character for truthfulness. Section 27-608(2) provides in rel-
evant part:
Specific instances of conduct of a witness, for the purpose
of attacking or supporting his credibility . . . may not
be proved by extrinsic evidence. They may, however, in
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Cite as 293 Neb. 890the discretion of the court, if probative of truthfulness or
untruthfulness be inquired into on cross-examination of
the witness . . . .
The central question regarding this assignment of error, and
one which we have not previously considered, is whether evi-
dence that a witness did not report certain income on her tax
returns is probative of her character for truthfulness or untruth-
fulness. Courts in other jurisdictions have reached different
conclusions, depending on the facts.
[25] Generally, evidence that a witness has knowingly pro-
vided false information on tax filings is considered probative
of the witness’ character for truthfulness or untruthfulness.50
Similarly, evidence that a witness intentionally failed to pay
taxes at all, particularly for multiple years, is often considered
probative of the witness’ character for truthfulness.51 But where
evidence of omissions or inaccuracies on tax returns does not
necessarily suggest dishonesty, such evidence is generally too
tenuous to be probative of truthfulness or untruthfulness.52 As
the Eighth Circuit has observed, not every civil tax problem is
indicative of a lack of truthfulness.53
[26] While there undoubtedly are circumstances under
which the failure to report certain income, or reporting false
income, on tax returns reflects on the taxpayer’s character for
truthfulness, the record here does not support such a conclu-
sion. Pierce’s tax returns were not offered, and there is noth-
ing in the record, or in the employers’ offer of proof, which
permits a reasonable inference regarding Pierce’s character for
truthfulness or untruthfulness. An admission from Pierce that
50
E.g., United States v. Sullivan, 803 F.2d 87 (3d Cir. 1986); United States v.
Zandi, 769 F.2d 229 (4th Cir. 1985); United States v. Lynch, 699 F.2d 839(7th Cir. 1982).
51
U.S. v. Hatchett, 918 F.2d 631 (6th Cir. 1990); Leaf v. Beihoffer, 338 P.3d
1136 (Colo. App. 2014).
52
United States v. Dennis, 625 F.2d 782 (8th Cir. 1980); Shafer v. American
Emp. Ins. Co., 535 F. Supp. 1067 (W.D. Ark. 1982).
53
Dennis, supra note 52.
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Cite as 293 Neb. 890she did not report nanny earnings on her tax returns, without
more, is not sufficiently probative of her character for truth-
fulness or untruthfulness to be admissible under § 27-608(2),
and any slight probative value is outweighed by the danger
of unfair prejudice. On this record, we cannot conclude the
trial court abused its discretion in granting Pierce’s motion in
limine to exclude such evidence.
(c) Handwritten Note
The trial judge sustained Pierce’s motion in limine to
exclude an unsigned, undated handwritten note. The employ-
ers sought to offer the note as evidence that Pierce had been
offered other positions during the meeting with Paladino and
Anderson. The note read, in pertinent part: “Initially, [Pierce]
took a medical leave because she was not able to perform her
daily duties. When her medical issues were under control—
Landmark Mgmt offered her 2 different job positions and she
turned them both down.”
The employers concede the handwritten note is an out-of-
court statement which they sought to offer for its truth, and
its admissibility is therefore governed by the hearsay rules.
The employers suggest the note was admissible as a business
record under Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27-803(5)
(Reissue 2008). But there is no evidence the note was made in
the course of a regularly conducted activity of the employers,
nor was there evidence the note was prepared at or near the
time of the meeting it purports to record. In fact, the employ-
ers’ offer of proof indicates the note was created 5 months
after the meeting by someone who did not attend the meeting
and, furthermore, was prepared under circumstances which
indicate a lack of trustworthiness. The offer of proof indicates
Paladino directed one of his employees to prepare the undated,
unsigned note after “giving her appropriate information to fill
it out.” Under these circumstances, we do not find the trial
court abused its discretion in granting Pierce’s motion in limine
regarding the unsigned note.
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Cite as 293 Neb. 8904. Sufficient Evidence
to Support Verdict
[27] The employers assign that the jury’s verdict was not
supported by sufficient evidence. A jury verdict will not be
set aside unless clearly wrong, and it is sufficient if any com-
petent evidence is presented to the jury upon which it could
find for the successful party.54 In determining the sufficiency
of the evidence to sustain a verdict in a civil case, an appellate
court considers the evidence most favorably to the successful
party and resolves evidential conflicts in favor of such party,
who is entitled to every reasonable inference deducible from
the evidence.55
For the most part, in arguing that the evidence was insuf-
ficient to support the verdict, the employers simply reiterate
their contention that they were not covered by the FMLA
because they were not integrated employers. For the same rea-
sons we rejected this assignment of error previously, we reject
it reframed as an assignment of insufficient evidence.
[28] The employers also argue there was insufficient evidence
showing that Pierce suffered an adverse employment decision.
In support of this argument, the employers point to the testi-
mony of Paladino and Anderson, both of whom testified that
they offered Pierce two equivalent positions with Paladino’s
companies and that Pierce rejected them both, choosing instead
to quit. The evidence, however, was in conflict on this issue.
Pierce testified the meeting with Paladino and Anderson ended
without any job offers, and when Anderson telephoned Pierce
later that evening, Anderson told her “we’re going to let you
go.” The jury resolved this conflict in the evidence in Pierce’s
favor. All conflicts in the evidence, expert or lay, and the cred-
ibility of the witnesses are for the jury and not for the appel-
late court.56
54
Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
55
Id.56
See Kniesche v. Thos, 203 Neb. 852, 280 N.W.2d 907 (1979).
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Cite as 293 Neb. 890Based on our review of the record, we conclude the evi-
dence was sufficient to support the jury’s verdict.
5. Attorney Fees
At the hearing on Pierce’s motion for attorney fees and
costs, her counsel submitted an affidavit which included a
detailed billing statement describing counsel’s legal work and
averments as to reasonableness. Using the lodestar method,
Pierce’s counsel calculated fees totaling $77,483. The court
awarded $67,979.70 in attorney fees.
[29] The employers concede that, as the prevailing party,
Pierce is entitled under the FMLA and the ADAAA to an award
of reasonable attorney fees. Here, the employers do not contest
the reasonableness of the hourly rates submitted, but argue the
fee award was unreasonable for two reasons. First, they argue
the number of hours claimed was excessive. Second, they
argue the fee award should have been capped by the contingent
fee agreement between Pierce and her attorneys.
Regarding their claim that the number of hours worked on
the case was excessive, the employers suggest the itemized
statement submitted by Pierce’s lawyer contained duplicative
entries, included charges for basic research when Pierce’s coun-
sel held themselves out as experienced attorneys in employ-
ment discrimination matters, and reflected too much time spent
on pleadings, discovery, briefing, and correspondence. The
employers’ brief suggests a fee reduction of 68 percent would
be appropriate to account for what they describe as exces-
sive billing.
We have reviewed the affidavit and conclude the request for
attorney fees and expenses is reasonable. On this record, we
find no abuse of discretion in the court’s conclusion that the
fees were reasonable.
Alternatively, the employers argue that any fee award
should not be based on the lodestar method, but instead should
be based on, and capped by, the contingent fee agreement
between Pierce and her attorneys. Pierce’s counsel concedes
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Cite as 293 Neb. 890the existence of a contingency fee arrangement with Pierce,
but the record on appeal does not include any fee agreement
between Pierce and her counsel, nor does it indicate fully the
terms of any such agreement.
As a general proposition, it is incumbent upon the appel-
lant to present a record supporting the errors assigned; absent
such a record, an appellate court will affirm the lower court’s
decision regarding those errors.57 Without the subject fee agree-
ment or its terms in the record, the record does not support this
assignment of error and we decline to consider it.
V. CONCLUSION
Having considered the assignments properly before us for
review and finding no reversible error, the judgment of the
trial court is affirmed.
A ffirmed.
57
Centurion Stone of Neb., supra note 10; InterCall, Inc., supra note 10.