Marr v. West Corporation , 310 Neb. 21 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21Kenneth Marr, appellee, v. West
Corporation, doing business as
West Customer Management
Group, LLC, a Delaware
corporation, appellant.
___ N.W.2d ___
Filed August 27, 2021. No. S-20-636.
1. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
2. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
3. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence.
4. Motions for New Trial: Appeal and Error. A motion for new trial is
addressed to the discretion of the trial court, whose discretion will be
upheld in the absence of an abuse of that discretion.
5. 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.
6. ____: ____: ____. The exclusion of evidence is ordinarily not prejudi-
cial where substantially similar evidence is admitted without objection.
7. Testimony: Evidence: Appeal and Error. Testimony objected to which
is substantially similar to evidence admitted without objection results in
no prejudicial error.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 218. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.
9. ____. To be relevant, the probative value of evidence need only be
something more than nothing.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed.
Kenneth M. Wentz III, Jessica Källström-Schreckengost, and
Nicholas B. McGrath, of Jackson Lewis, P.C., for appellant.
Patrick J. Barrett and Rhianna A. Kittrell, of Fraser Stryker,
P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
A jury found that West Corporation (West) breached con-
tracts with a former employee, Kenneth Marr, when it refused
to pay certain compensation to which Marr claimed he was
entitled upon his resignation. The jury returned a verdict in
favor of Marr of just over $400,000. West thereafter filed a
motion for judgment notwithstanding the verdict and a motion
for a new trial. The district court denied those motions, and
West appeals. We find no reversible error on the part of the
district court and therefore affirm.
I. BACKGROUND
1. Marr’s Contracts With West
Marr began his career with West in 1991. It was his first
job after college. He began working in a call center but earned
a number of promotions over the years. In 2009, he was pro-
moted to senior vice president of technical operations.
About the time Marr was promoted, West and Marr entered
into an “Alternative Employment Agreement” (Employment
Agreement). In the Employment Agreement, Marr agreed,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21among other things, that if he left employment at West, he
would not solicit business from West’s customers for 1 year
following his departure. In exchange, West agreed that if Marr
voluntarily terminated his employment “for Good Reason,”
he would be entitled to receive as severance pay an amount
equal to 1 year of his base salary, as well as his projected
annual bonus.
With respect to “Good Reason,” the Employment Agreement
provided as follows:
For purposes of this Agreement, Executive shall have
“Good Reason” to terminate this Agreement if one of the
following events occurs without the Executive’s express
written consent:
1. both (i) a reduction in any material respect in the
Executive’s position(s), duties or responsibilities with
the Company, and (ii) an adverse material change in
the Executive’s reporting responsibilities, titles or offices
with the Company . . . .
The Employment Agreement additionally provided that in
order to terminate for good reason, Marr was required to give
written notice to West “as to the details of the basis for such
Good Reason” within 30 days following the event giving rise
to such reason and West “must fail to provide a reasonable
cure” within 30 days after receiving such notice.
In September 2015, while Marr was still working as West’s
senior vice president of technical operations, Marr and West
entered into a “Restricted Stock Award Agreement” (Stock
Agreement). Under the Stock Agreement, Marr was awarded
certain restricted West stock. The Stock Agreement provided
that Marr’s unvested stock would fully vest and that he would
be entitled to dividends related to such stock in the event
of a “Qualifying CIC Termination,” which would encompass
Marr’s ending his employment within 2 years after a change in
control of West’s ownership for a “Good Reason.” The Stock
Agreement listed a number of events that would give Marr
“Good Reason” to resign, including
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21either (A) a reduction in any material respect in the
Grantee’s position(s), duties or responsibilities with the
Company, as in effect during the 90-day period immedi-
ately prior to such Change in Control, or (B) an adverse
material change in the Grantee’s reporting responsibili-
ties, titles or offices with the Company as in effect imme-
diately prior to such Change in Control.
The Stock Agreement also provided that in order to resign
for “Good Reason,” Marr was required to provide written
notice to West of the occurrence of any of the events which the
Stock Agreement stated would give Marr good reason to resign
within 90 days of his having “knowledge of the circumstances
constituting such event” and that West must have failed to
correct the “circumstances resulting” in any of those events
within 30 days after receiving such notice.
2. Changes at West
In October 2017, West was acquired by a company head-
quartered in New York. At that time, Marr was responsible
for technical operations in certain areas within West. The next
month, Marr’s role was changed; he was given responsibility
for technical strategy for West as a whole.
In February 2018, Marr’s role at West changed again. West
formed a new “Integration & Divestitures” team, which would
be led by Pam Mortenson, an executive vice president. Marr
was given the title of senior vice president of integration
management and reported to Mortenson. While reporting to
Mortenson, Marr worked exclusively on integrations. Marr
did not work on divestitures. As their names suggest, in an
integration, West would work to incorporate a company it had
acquired into its operations, while in a divestiture, West would
work to sell a company to another entity.
In the last week of April 2018, Mortenson provided notice
that she was leaving West. Upon Mortenson’s departure,
Marr began reporting to Erik Carlson. Carlson had been hired
a few weeks before as a vice president in West’s finance
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21department, and, unlike Marr, Carlson did not live or work in
Omaha, Nebraska. Marr had previously reported through West’s
operations department rather than the finance department.
After Marr began reporting to Carlson, Carlson removed
Marr from several integrations on which he was working and
assigned him to work on divestitures. Marr asked those work-
ing on divestitures how he could help, but he was told there
was nothing to be done at that point.
3. Marr’s Resignation From West
In January 2018, Marr applied for a position as chief tech-
nology officer at First National Technology Solutions (FNTS).
He completed several interviews for that position with rep-
resentatives of FNTS in February, March, and April. In May,
Marr negotiated with FNTS regarding the chief technology
officer position, and on May 18, FNTS offered him the posi-
tion. He accepted the offer on May 20.
On May 21, 2018, Marr sent Carlson an email stating that
changes that had taken place in the past few weeks “within our
Integration Management Organization structure and operating
model have resulted in a material reduction in my position’s
duties and responsibilities as well as a significant reduction in
my reporting responsibilities.” Marr stated that he was notify-
ing West that he was terminating his employment for good
reason under the Employment Agreement if no reasonable cure
could be reached.
Marr resigned his position at West effective June 21, 2018.
He began working for FNTS the next week.
4. Lawsuit
A few months after his resignation from West, Marr filed a
lawsuit against West. He alleged that he notified West on May
21, 2018, that he intended to voluntarily terminate his employ-
ment for good reason under the Employment Agreement and
the Stock Agreement if a reasonable cure could not be reached;
that West had failed to provide a reasonable cure; and that
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21he voluntarily terminated his employment on June 21, 2018.
Marr claimed that because he had resigned for good reason
under the Employment Agreement and the Stock Agreement,
Marr was contractually entitled to compensation, which West
had refused to pay.
The case proceeded to a 3-day trial before a jury. At trial,
Marr, an in-house counsel at West, Carlson, and Mortenson tes-
tified. Testimony that is relevant to the issues raised on appeal
is discussed in the analysis section below.
During the trial, the district court made several evidentiary
rulings that are at issue in this appeal. The district court sus-
tained Marr’s objections on relevancy and hearsay grounds to
certain exhibits showing Marr’s communications with FNTS
regarding his job application. The district court also over-
ruled West’s objections when Carlson was asked on cross-­
examination where certain West executives lived and worked
and how old he was.
5. Jury Verdict and Posttrial Motions
At the conclusion of the trial, the jury entered a verdict in
favor of Marr, finding West liable to Marr for damages in the
amount of $400,540.45.
After the verdict, West filed a motion for judgment notwith-
standing the verdict and a motion for new trial. The district
court denied both motions, and West appealed.
II. ASSIGNMENTS OF ERROR
West assigns on appeal that the district court erred (1) by
overruling West’s motion for judgment notwithstanding the
verdict and (2) by overruling West’s motion for a new trial.
West argues it was entitled to a new trial based on the eviden-
tiary rulings noted above. West also separately assigns error to
each of these evidentiary rulings.
III. STANDARD OF REVIEW
[1-3] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. Valley Boys
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856(2020). To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Id. On a motion for judg-
ment notwithstanding the verdict, the moving party is deemed
to have admitted as true all the relevant evidence admitted that
is favorable to the party against whom the motion is directed,
and, further, the party against whom the motion is directed is
entitled to the benefit of all proper inferences deducible from
the relevant evidence. Id.[4] A motion for new trial is addressed to the discretion of
the trial court, whose discretion will be upheld in the absence
of an abuse of that discretion. Martensen v. Rejda Bros., 283
Neb. 279, 808 N.W.2d 855 (2012).
IV. ANALYSIS
1. Judgment Notwithstanding Verdict
West’s primary assignment of error is that the district court
erred by denying its motion for judgment notwithstanding the
verdict. It contends that its motion should have been granted
for several reasons. First, West argues that Marr failed to prove
that he was eligible to resign for good reason under either
the Employment Agreement or the Stock Agreement. Second,
West contends that Marr’s actual motivation for resigning
was unrelated to any good reason, as defined by the agree-
ments. Finally, West claims that Marr failed to give sufficient
notice to West under both the Employment Agreement and the
Stock Agreement. In the sections below, we address each of
West’s arguments.
(a) Good Reason Resignation Under
Employment Agreement
As noted above, the Employment Agreement provided
that Marr could resign for good reason if the following
occurred: “(i) a reduction in any material respect in [Marr’s]
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21position(s), duties or responsibilities with [West], and (ii) an
adverse material change in [Marr’s] reporting responsibilities,
titles or offices with [West].” West contends that the jury could
not have reasonably concluded that Marr’s duties and respon-
sibilities were materially reduced or that his reporting obliga-
tions were adversely changed.
In support of its argument that Marr’s duties and responsibil-
ities were never materially reduced and that his reporting obli-
gations were not adversely changed, West largely highlights
testimony from Carlson and Mortenson. It points to testimony
from Mortenson that she understood when the “Integration
& Divestitures” team was formed that members of the team,
presumably including Marr, would be involved in divestitures
as well as integrations. It points to testimony from Carlson as
to the importance of the work on divestitures. He testified that
working on divestitures was similar to working on integra-
tions and that both required strategic thinking. He also testi-
fied that the economic value of the divestitures Marr worked
on exceeded the value of the integrations he worked on. With
respect to Marr’s reporting obligations, West directs us to tes-
timony from Carlson that he did not believe that Marr’s oppor-
tunities would be reduced by reporting through the finance
department rather than the operations department.
The evidence West points to was undoubtedly supportive
of its position that Marr’s duties and responsibilities had not
been materially reduced and that his reporting obligations had
not been materially altered. However, a party is not entitled to
judgment notwithstanding the verdict merely because there was
some evidence that supported its position. Instead, a court can
grant a motion for judgment notwithstanding the verdict when
the evidence would only allow a reasonable jury to find in
favor of the moving party. See Valley Boys v. American Family
Ins. Co., 306 Neb. 928, 947 N.W.2d 856 (2020). That is not
the case here. While there was some evidence that supported
West’s position, other evidence supported Marr’s.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21After Marr began reporting to Carlson, Marr was removed
from several integration projects on which he had been work-
ing and assigned to work on divestitures. Marr testified at
trial that working on integrations required him to understand
the products, services, sales, marketing, employees, and tech-
nology of the acquired companies and develop strategies to
integrate their operations into West’s. He testified that he had
not previously worked on divestitures; that working on dives-
titures did not require him to make the same type of strategic
decisions he had to make while working on integrations; and
that after he was assigned to work on divestitures, individuals
who were responsible for divestitures told him there was no
work for him to do. Marr testified that he did not want to be
assigned to divestitures, because it did not allow him to use the
experience he had developed to help West succeed. Although
there was evidence to support West’s contrary position, based
on Marr’s testimony, the jury could have reasonably found that
Marr’s duties and responsibilities were materially reduced after
he was removed from several integrations and assigned to work
on divestitures.
We believe a reasonable jury also could have concluded that
Marr’s reporting obligations were adversely and materially
changed after Mortenson departed and he began reporting to
Carlson. Mortenson was an executive vice president at West;
Carlson was a vice president. Marr testified that as a vice pres-
ident, Carlson was actually lower in West’s corporate structure
than Marr was as a senior vice president. Marr also testified
that once he began reporting to Carlson, he no longer reported
through West’s operations department as he had during his
career, but reported through West’s finance department despite
his lack of a finance degree and never having worked in the
finance department. Finally, Marr also testified that the people
to whom he reported in the finance department did not work
in Omaha and that he believed this would have an adverse
effect on his ability to advance in a new department. Based on
this evidence, the jury could have reasonably concluded that
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Nebraska Supreme Court Advance Sheets
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MARR v. WEST CORPORATION
Cite as 310 Neb. 21Marr’s reporting obligations were adversely changed when he
began reporting to Carlson.
(b) Good Reason Resignation
Under Stock Agreement
West also argues that the jury could not reasonably have
concluded that Marr could resign for good reason under the
Stock Agreement. Under the Stock Agreement, Marr could
resign for good reason if there was a change in control of the
organization and either a material reduction of his position,
duties, or responsibilities in effect during the 90 days prior to
the change in control or an adverse material change in Marr’s
reporting responsibilities, titles, or offices that were in effect
immediately prior to the change in control.
The jury could have reasonably found that Marr was eli-
gible to resign for good reason under the Stock Agreement.
West does not dispute that a change in control took place in
October 2017 when a New York company purchased West.
In addition, we believe the jury could have reasonably found
when Marr started reporting to Carlson, there was an adverse
material change in Marr’s reporting responsibilities from what
they were immediately prior to the change in control. There
was evidence admitted at trial that before the change in control,
Marr was not reporting through the finance department, not
reporting to individuals outside of Omaha, and not reporting to
a person lower in West’s corporate structure, as he was after he
began reporting to Carlson. And because the Stock Agreement
provided that Marr could resign for good reason based upon a
material reduction in his duties or an adverse material change
to his reporting responsibilities, it is not necessary for us to
consider whether the jury could also have found that there
was a material reduction in Marr’s duties after the change
in control.
(c) Marr’s Actual Reason for Resignation
Next, West argues that the district court should have granted
its motion for judgment notwithstanding the verdict, because
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21the jury could only have reasonably concluded that Marr did
not actually resign for a good reason. Here, West contends that
the evidence shows that Marr’s motivation for resigning from
West was not a reduction in his duties or an adverse change in
his reporting responsibilities, but, rather, his decision to pursue
and accept employment with FNTS. West claims that if Marr’s
stated reasons were pretextual, he did not resign for good rea-
son under the agreements. Marr argues otherwise, contending
that the agreements gave him the right to receive the compen-
sation at issue if he resigned after the occurrence of the events
identified in the agreements and that his subjective reasons for
resigning are irrelevant.
It is not clear to us that Marr’s right to resign for good
reason under either the Employment Agreement or the Stock
Agreement depended on his motivation for resigning. We find,
however, that we need not resolve that question. Even if we
assume that Marr’s subjective motivation was relevant, we find
that West was not entitled to judgment notwithstanding the ver-
dict. Marr testified that he did not want to leave West and that
even after he sent the email to Carlson on May 21, 2018, he
hoped that West could find him a role within the company that
allowed him to use the expertise he had developed there. Marr
further testified that if West had found such a role for him, he
would have stayed.
West points to the evidence of Marr’s efforts in pursuing
and accepting a job at FNTS and argues that “it is blatantly
apparent that [Marr] was not actually asking West to cure the
perceived adverse changes to his role identified in his resigna-
tion notice” but that his true motivation was “to increase his
severance compensation by hundreds of thousands of dollars
as he transitioned into his new position with [FNTS].” Brief
for appellant at 20. West appears to contend that given his
pursuit and acceptance of a job at FNTS, Marr’s testimony that
he would have stayed at West if it had addressed the issues
he raised regarding his duties and reporting obligations is not
credible. West cannot, however, challenge the credibility of
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Nebraska Supreme Court Advance Sheets
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MARR v. WEST CORPORATION
Cite as 310 Neb. 21Marr’s testimony through a motion for judgment notwithstand-
ing the verdict.
In a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the rel-
evant evidence admitted that is favorable to the party against
whom the motion is directed. See Valley Boys v. American
Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856 (2020). Marr’s
testimony that he would have stayed at West if it had addressed
his concerns was favorable to Marr and thus must be treated as
true for purposes of West’s motion for judgment notwithstand-
ing the verdict. This testimony, if believed, provided a basis
upon which a reasonable jury could have concluded that Marr
resigned because of the changes to his duties and responsibili-
ties and reporting obligations at West.
(d) Notice Under Employment Agreement
West next argues that it was entitled to judgment notwith-
standing the verdict, because Marr failed to comply with the
notice provisions of the Employment Agreement. Again, we
are not persuaded.
West argues that Marr’s May 21, 2018, email to Carlson
was a “bare bones resignation notice that failed to adequately
identify the alleged bases of his Good Reason claim.” Brief for
appellant at 23. We disagree that Marr’s email failed to pro-
vide adequate notice as a matter of law. Marr’s email informed
Carlson that he believed his duties and responsibilities and
reporting obligations had been adversely changed. The email
also provided notice that Marr believed that was the case as
a result of changes that had taken place in the last few weeks
within the “Integration Management Organization structure
and operating model.” Marr’s email did not provide exhaustive
detail as to why he believed the recent changes had reduced his
duties and adversely altered his reporting obligations, but the
Employment Agreement does not specify that Marr was obli-
gated to provide exhaustive detail.
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MARR v. WEST CORPORATION
Cite as 310 Neb. 21(e) Notice Under Stock Agreement
Finally, West argues that it was entitled to judgment notwith-
standing the verdict, because Marr provided inadequate notice
under the Stock Agreement. West argues that Marr failed to
provide any written notice under the Stock Agreement and that
even if he did provide such notice, it was not provided within
90 days after he had knowledge of the factual basis for his
claim that he could resign for good reason. We find these argu-
ments meritless as well.
We disagree that Marr failed to comply with the notice pro-
vision of the Stock Agreement as a matter of law. Although
his May 21, 2018, email to Carlson did not expressly mention
the Stock Agreement, Marr did inform Carlson in the email
that Marr believed the recent changes at West had resulted
in a material reduction in his duties and responsibilities, as
well as an adverse change in his reporting obligations. Marr
thereby provided notice of the occurrence of events which
the Stock Agreement listed as grounds for a good reason
resignation, which is what the notice provision of the Stock
Agreement required.
We also disagree with West’s argument that the jury could
not have reasonably concluded that Marr provided notice within
90 days after he had knowledge of the basis for his claim that
he could resign for good reason under the Stock Agreement.
We find that the jury could have reasonably concluded that
Marr first had knowledge of the basis for his claim that his
reporting obligations had been adversely changed from what
they were prior to the change in control when he began report-
ing to Carlson in April 2018.
2. Motion for New Trial
As an alternative to its argument that the district court
should have granted its motion for judgment notwithstanding
the verdict, West argues that the district court erred by deny-
ing its motion for a new trial. West contends that the district
court should have granted it a new trial because it made several
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21erroneous evidentiary rulings that prejudiced West. In the sec-
tions below, we consider West’s arguments as to each of these
evidentiary rulings.
(a) Exclusion of Some of Marr’s
Communication With FNTS
West first argues that the district court erred by excluding
on relevancy and hearsay grounds various exhibits regarding
Marr’s application for and eventual acceptance of a position
at FNTS. The district court sustained Marr’s objections to
the admission of a job application Marr submitted to FNTS
in January 2018 in which he indicated he would be avail-
able to start work on February 12. It also sustained Marr’s
objections to various emails in which Marr scheduled and
discussed job interviews with representatives of FNTS, an
email in which a representative of West updated Marr on the
status of his application, and emails in which FNTS offered
Marr the position and Marr accepted. During a discussion
with counsel explaining the basis for excluding exhibits on
hearsay grounds, the district court stated that it was its view
that “none of these scheduling matters constitutes statements
against any interest.”
[5,6] We find it unnecessary to determine whether the dis-
trict court erred by excluding this evidence. In a civil case,
the admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the com-
plaining party. Steinhausen v. HomeServices of Neb., 289 Neb.
927, 857 N.W.2d 816 (2015). The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection. Id. In particular, where the infor-
mation contained in an exhibit is, for the most part, already in
evidence from the testimony of witnesses, the exclusion of the
exhibit is not prejudicial. Id. As we will explain, under these
principles, we do not believe the exclusion of the evidence
regarding Marr’s pursuit of a job at FNTS, even if erroneous,
would amount to reversible error.
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MARR v. WEST CORPORATION
Cite as 310 Neb. 21Although the district court sustained Marr’s objections to
certain exhibits showing that Marr pursued and accepted a job
at FNTS, other evidence of the same was admitted. In par-
ticular, evidence was admitted that Marr applied for the chief
technology officer position at FNTS in January 2018; that he
completed many interviews with FNTS personnel regarding
that position in February, March, and April; that he thereafter
negotiated with FNTS regarding employment terms for the
position; that FNTS offered him the position on May 18; that
he communicated his acceptance on May 20 and informed
FNTS he would resign from West in the next few days; and
that after accepting the job, he informed FNTS he intended to
start on June 25, completed preemployment screening and drug
testing, and arranged for parking at FNTS.
We do not believe the exhibits the district court excluded
contained any information material to Marr’s pursuit of a job at
FNTS that the jury did not receive through other evidence. The
jury received evidence that even before Marr began reporting
to Carlson, he was pursuing employment outside of West. It
also received evidence that Marr accepted the position at FNTS
shortly before he emailed Carlson about his intent to resign
from West and that he took steps to begin employment at
FNTS even after giving West the opportunity to cure the issues
he raised regarding his position at West. Because the jury
received evidence that was substantially similar to the excluded
exhibits, West’s substantial rights were not unfairly prejudiced.
See Steinhausen, supra.
West also contends that it was prejudiced by the district
court’s explanation of its hearsay ruling that it did not consider
“these scheduling matters” to be “statements against any inter-
est.” It contends that this comment was made in front of the
jury and would have led the jury to believe that in the district
court’s view, Marr’s pursuit of a job at FNTS was irrelevant
to whether he resigned for good reason under the agree-
ments. We disagree that the district court’s comment prejudiced
West. The district court’s comment was limited to “scheduling
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21matters,” a great deal of evidence regarding Marr’s pursuit of
a job at FNTS was received into evidence, and the jury was
instructed that it was not to consider the reasons for the district
court’s evidentiary rulings.
(b) Admission of Evidence of
Residence of West Executives
West next argues that the district court erred by allowing
Marr to elicit testimony that several members of West’s execu-
tive team lived and worked outside of Omaha. West argues that
the residence and working location of West’s executives was
irrelevant and was introduced “solely in order to inflame the
Omaha jury’s animus towards West’s New York-based own-
ers.” Brief for appellant at 31. Marr counters that the evidence
was relevant to the question of whether his reporting respon-
sibilities at West had been adversely changed. He testified at
trial and argues now that not being able to work directly with
individuals to whom he reported negatively impacted his stand-
ing within West.
[7] Again, we find it unnecessary to determine whether the
district court’s evidentiary ruling was erroneous, because even
assuming it was, no prejudicial error resulted. Although West
made relevance objections when Carlson was asked on cross-
examination where a few members of West’s executive team
lived and worked, it did not object when he was asked the
same question about several other West executives. Neither did
West object when testimony was elicited from other witnesses
that certain West executives did not live and work in Omaha.
Testimony objected to which is substantially similar to evi-
dence admitted without objection results in no prejudicial error.
Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566
N.W.2d 750 (1997).
(c) Admission of Evidence of Carlson’s Age
West also argues that the district court abused its dis-
cretion by overruling West’s relevance objection when Marr
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21asked Carlson about his age. Carlson testified that he was 28
years old. West argues that Carlson’s age was not relevant
to whether Marr’s reporting responsibilities were adversely
changed when he began reporting to Carlson.
[8,9] Although evidence that is irrelevant is inadmissible,
Neb. Rev. Stat. § 27-402 (Reissue 2016), the bar for estab-
lishing evidentiary relevance is not a high one. See Lindsay
Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d
133 (2018). Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Neb. Rev. Stat. § 27-401
(Reissue 2016). To be relevant, the probative value of evi-
dence need only be “something more than nothing.” State v.
Lavalleur, 289 Neb. 102, 115, 853 N.W.2d 203, 214 (2014).
Furthermore, we have recognized that the exercise of judicial
discretion is implicit in determining the relevance of evidence,
and therefore a trial court’s decision regarding relevance will
not be reversed absent an abuse of discretion. See Richardson v.
Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).
We do not believe the district court abused its discre-
tion by concluding that evidence of Carlson’s age cleared the
relatively low relevance threshold. Carlson was asked his age
immediately before testimony was elicited from him, without
objection, that he graduated from college in 2013 and about
his subsequent employment history. In our view, it is not
unreasonable to conclude that the fact that Marr was report-
ing to someone who—because of his relatively young age and
relatively recent completion of his college education—likely
did not have extensive experience has at least some tendency to
suggest that Marr’s reporting responsibilities had been materi-
ally altered. We acknowledge the probative value of Carlson’s
age may have been slight, but neither do we believe the district
court abused its discretion by finding that it had some probative
value. We therefore find that the district court did not abuse its
discretion in overruling West’s objection.
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310 Nebraska Reports
MARR v. WEST CORPORATION
Cite as 310 Neb. 21Because West has not demonstrated any prejudicial error in
the district court’s evidentiary rulings and its argument that it
was entitled to a new trial depends wholly on the existence of
such error, we find that the district court did not abuse its dis-
cretion in overruling West’s motion for a new trial.
3. Marr’s Request for Attorney
Fees and Costs
Before concluding, we note that Marr argues in his brief that
West’s appeal is frivolous and that he should therefore receive
an award of attorney fees and costs under Neb. Rev. Stat.
§ 25-824(2) (Reissue 2016). Our rules of appellate procedure
require those seeking the award of such relief to file a motion
supported by an affidavit justifying the amount sought “no later
than 10 days after the release of the opinion of the court or the
entry of the order of the court disposing of the appeal, unless
otherwise provided by statute.” Neb. Ct. R. App. P. § 2-109(F)
(rev. 2021). If Marr wishes to pursue an award of attorney
fees and costs under § 25-824(2), he may file such a motion in
accordance with the rule set forth above.
V. CONCLUSION
Because we find no reversible error on the part of the dis-
trict court, we affirm.
Affirmed.