First Express Servs. Group v. Easter ( 2013 )

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912 286 NEBRASKA REPORTS
We find Farmland Foods helpful to our disposition here.
The department’s order, while somewhat unclear, made the
correct findings of fact to support a change in ownership under
rule 3-C-1(a)(2), discussed that section, and essentially con-
cluded that it had been met. The order simply failed to note
that finding in its conclusions of law section of the order.
We therefore conclude that in addition to the change in own-
ership under rule 3-C-1(a)(4), there was a change in ownership
under rule 3-C-1(a)(2) due to the asset sale and taking over
of the business operations of Omaha Beef, LLC, by Gridiron.
While this was not a basis for the department’s decision, it is
supported by the findings made by the department.
Gridiron’s second assignment of error is without merit.
VI. CONCLUSION
The decision of the district court is affirmed.
Affirmed.
First Express Services Group, Inc., appellee, v. Arlene
A. Easter and Mark T. Easter, appellants,
and M iller Services Agency, I nc., doing
business as Davidson I nsurance and
R eal Estate, appellee.
___ N.W.2d ___
Filed November 22, 2013. No. S-12-304.
1. Summary Judgment: Moot Question: Appeal and Error. The denial of a sum-
mary judgment motion generally becomes a moot issue on appeal after a final
trial on the merits.
2. Judgments: Verdicts: Appeal and Error. In reviewing rulings on motions for
directed verdict and judgments notwithstanding the verdict, an appellate court
gives the nonmoving party the benefit of all evidence and reasonable inferences
in his or her favor, and the question is whether a party is entitled to judgment as
a matter of law.
3. New Trial: Appeal and Error. Regarding motions for new trial, an appellate
court will uphold a trial court’s ruling on such a motion absent an abuse of
discretion.
4. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
Nebraska Advance Sheets
FIRST EXPRESS SERVS. GROUP v. EASTER 913
Cite as 286 Neb. 9125. ____. Generally, an appellate court disposes of a case on the theory presented in
the trial court.
6. ____. When a party raises an issue for the first time on appeal, an appellate court
will disregard it because a lower court cannot commit error in resolving an issue
never presented and submitted to it for disposition.
7. Trade Secrets: Restrictive Covenants. Courts are reluctant to protect customer
lists to the extent that they embody information that is readily ascertainable
through public sources. Only where time and effort have been expended to
identify particular customers with particular needs or characteristics will a list
be protected. Such lists are distinguishable from mere identities and locations of
customers that anyone could easily identify as possible customers.
8. Breach of Contract: Unjust Enrichment. A party cannot be liable for both
breach of contract and unjust enrichment for the same conduct.
9. ____: ____. There is no question regarding the priority of a claim for breach
of contract and a claim for unjust enrichment flowing from the same conduct;
liability under a contract displaces liability under an unjust enrichment theory.
Appeal from the District Court for Otoe County: Randall
L. R ehmeier, Judge. Affirmed in part as modified, and in part
reversed.
Matthew D. Hammes, of Locher, Pavelka, Dostal, Braddy &
Hammes, L.L.C., for appellant Arlene A. Easter.
Abbie J. Widger and Cameron E. Guenzel, of Johnson,
Flodman, Guenzel & Widger, for appellant Mark T. Easter.
Heather Voegele-Andersen and David A. Yudelson, of
Koley Jessen, P.C., L.L.O., for appellee First Express Services
Group, Inc.
Heavican, C.J., Wright, Connolly, and McCormack, JJ., and
Moore, Riedmann, and Bishop, Judges.
Connolly, J.
I. SUMMARY
Arlene A. Easter sold crop insurance for First Express
Services Group, Inc. (First Express). In 2009, however, Arlene
resigned from First Express and went to work for her son,
Mark T. Easter, a part owner of a competing agency. When
she resigned, Arlene took a First Express customer list and
transferred many of First Express’ customers to Mark’s agency.
When First Express discovered this, it sued Arlene for breach
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of contract and it sued Arlene, Mark, and Mark’s agency for
misappropriation of trade secrets and unjust enrichment. A
jury found for First Express on all claims. Arlene and Mark
(but not Mark’s agency) appealed. The primary issues are (1)
whether Arlene preserved for review her arguments challeng-
ing the enforceability of the underlying contract, (2) whether
the customer list was a trade secret, and (3) whether the theory
of unjust enrichment applied.
We will explain our holding with specificity in the following
pages, but, briefly stated, it is as follows:
•  rlene did not challenge the enforceability of the underlying
A
contract in the district court, so she cannot do so now for the
first time on appeal.
•  he customer list was not a trade secret, because the custom-
T
ers’ identities and contact information were ascertainable
from public sources and because the other information on the
list was also ascertainable by proper means.
•  he theory of unjust enrichment could not apply to either
T
Arlene or Mark. Arlene is already liable for breach of con-
tract, and the corporate veil protects Mark.
Therefore, Arlene is liable only for the portion of the judg-
ment attributed by the district court to the breach of contract
claim, which is $360,121.72 (after applying the setoff of
$5,759.28). We modify the judgment against her accordingly.
And because Mark is not liable for either misappropriation of
trade secrets or unjust enrichment, we reverse the judgment
against Mark.
II. BACKGROUND
In 1979, Arlene began selling crop insurance, on her own.
In 1986, she began working full time at the Otoe County
National Bank in Nebraska City, Nebraska, but continued sell-
ing crop insurance independently as Arlene Easter Insurance.
In 1990, Grant Gregory purchased the bank (through a hold-
ing company) and kept Arlene on as a bank employee.
Gregory also hired her as an independent crop insurance
agent for First Express, which opened an office in the bank.
Arlene brought her crop insurance customers with her to
First Express.
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FIRST EXPRESS SERVS. GROUP v. EASTER 915
Cite as 286 Neb. 9121. Arlene’s Agreement
With First Express
Arlene and Gregory negotiated the terms of her business
relationship with First Express, which they reduced to a writ-
ten agreement. The agreement contained several notable provi-
sions. In paragraph 7, Arlene agreed that “[a]ll renewals and
goodwill arising out of the conduct of the insurance agency
business shall be and remain the property of [First Express];
provided, however, that [Arlene] shall be entitled to retain the
customers listed on Exhibit ‘A’.” It is undisputed, however,
that there was no exhibit A attached to the agreement, though
Arlene claimed that exhibit A existed. Throughout these pro-
ceedings, no one could produce a copy of exhibit A, although
Arlene did attempt to recreate it.
In paragraph 8, Arlene acknowledged that she would be
handling (and adding to) “confidential information of a spe-
cial and unique nature and value relating to [First Express’]
trade secrets, and customer lists, as well as the nature and
type of products used and preferred by [First Express’] cus-
tomers.” Arlene agreed that she would not, “at any time,
during or following the term of this Agreement, directly or
indirectly divulge or disclose any of the confidential informa-
tion that [had] been obtained by [Arlene] as a result of the
services provided.”
Finally, in paragraph 9, Arlene agreed to a covenant not
to compete, among other things. But the parties, during trial,
agreed to redact the covenant not to compete from the agree-
ment, presumably because it was unenforceable and because
First Express abandoned its claim based on the covenant. The
pertinent remaining portions of paragraph 9 provided that dur-
ing the term of the agreement and for 5 years after, Arlene
would not “divulge, directly or indirectly, to any other insur-
ance company, broker, or agency any information or lists or
records with respect to business of [First Express], and [Arlene
would], upon termination of this Agreement, properly return to
[First Express] all records, lists and prospect cards.”
Paragraph 9 also prohibited Arlene from allowing “any-
one to see or copy any of the cards or records, which [were]
acquired, made or used while [Arlene] was retained by [First
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916 286 NEBRASKA REPORTS
Express], or in any other way do any act contrary to the
interest of [First Express].” It acknowledged, however, that
“the customer’s [sic] listed on Exhibit ‘A’ were customers of
[Arlene] prior to [Arlene’s] retainer by [First Express]” and
that, were the agreement terminated, Arlene would be “entitled
to continue to write insurance for the customers listed on
Exhibit ‘A’.” The jury based its finding that Arlene breached
her contract on her taking and using the customer list in vio-
lation of the provisions in paragraphs 8 and 9 (excluding the
covenant not to compete).
2. Arlene R esigns and
Takes Customer List
Arlene worked for both the bank and First Express for many
years. But in separate letters dated November 30, 2009, she
resigned from both positions effective December 31, “[d]ue to
health reasons.” She personally delivered the bank resignation
letter to the bank president, but the letter to First Express did
not reach Gregory until sometime in January 2010.
When she resigned, Arlene took with her a First Express
customer list. The list was an “Agency Commission Statement”
from one of the companies for which First Express wrote crop
insurance. This list apparently was available only by logging
in using First Express identification and a password. The
document listed all of First Express’ customers with that com-
pany and contained other significant information about each
customer. The document included customers’ names and their
2009 information: what crops the farmers had, what counties
the crops were located in, what insurance plan the farmers
bought, what percentage of coverage each farmer had, and
what commission First Express had earned. First Express con-
sidered this information both confidential and valuable.
3. Arlene Transfers Customers
to M ark’s Agency and
First Express Sues
Shortly after her resignation, Arlene started transferring
First Express’ customers to her at Mark’s agency. In late
January 2010, First Express began receiving transfer notices
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FIRST EXPRESS SERVS. GROUP v. EASTER 917
Cite as 286 Neb. 912from those customers. By March 15, the critical deadline in
crop insurance, 90 percent of Arlene’s customers had trans-
ferred to Mark’s agency. Upon discovering this, First Express
sued Arlene for breach of contract and sued Arlene, Mark, and
Mark’s agency for misappropriation of trade secrets and unjust
enrichment. First Express based all of its claims on Arlene’s
alleged use of the customer list to transfer her customers.
4. Evidence and Testimony
at Trial
Evidence at trial showed that because the federal govern-
ment sets all the rates, different insurance agencies cannot offer
different rates on crop insurance. Farmers generally choose a
crop insurance agency based on the agent. A farmer must have
crop coverage by March 15, and if no transfer has occurred, the
policy from the previous year automatically renews with the
agency from the previous year. A farmer can transfer his or her
crop insurance coverage from one agency to another by filling
out and signing a transfer form. A transfer form has blanks for
the customer’s basic information such as name, address, Social
Security number, and spouse. It also has blanks regarding the
crop insurance the customer wants, including the county the
crops are in, the type of crops, the insurance coverage level,
and the type of insurance plan.
Testimony at trial indicated that the information on the
customer list would have been helpful, though not necessary,
to fill out the transfer form. Much of the information on the
customer list was obtainable from other sources. Moreover, the
transfer form did not need to be filled out completely to actu-
ally transfer the customer; rather, only the customer’s signature
and possibly a few other pieces of information were necessary.
The rest of the information could be added or changed later, if
done before March 15. And once the insurance carrier received
a customer’s transfer form, the customer’s prior crop insurance
information became available to the new agent on the carrier’s
Web site.
Arlene testified that when she submitted her resignations,
she intended to continue selling crop insurance from her
home. But then her son, Mark, a part owner of an insurance
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918 286 NEBRASKA REPORTS
agency, asked her to come work for him. On January 12,
2010, Arlene became an agent for Mark’s agency. On or
about January 15, Arlene sent a letter to former First Express
customers, informing them of her resignation and soliciting
their business.
Arlene testified further that she took the list only because
she was concerned First Express would not pay her all the
commissions due her after her resignation. She testified that
with the list, she could prove what First Express owed her. She
acknowledged that the information on the list could have been
used in filling out transfer forms, but she claimed she used the
list only for the names of her customers. She insisted that addi-
tional information was needed to transfer a customer and that
all the information on the list could be obtained in other ways,
including by simply talking to the farmer. Arlene apparently
had excellent relationships with her customers; several testi-
fied that Arlene was an exceptional agent and that they would
have followed her wherever she went.
Arlene did admit to making handwritten notes on the list,
including notations that she sent solicitation letters to or called
the customers. She also admitted that she filled out the transfer
forms for many of her customers and then later obtained the
customer’s signature. Arlene testified that she never gave the
information from the customer list to Mark.
Mark testified that although Arlene mentioned leaving First
Express in 2008 and 2009, he did not specifically discuss
her future plans with her until after she resigned from First
Express. He had reviewed her contract with First Express in
2008 or 2009. He testified that although he knew she wanted
to transfer her former First Express customers to his agency,
he did not know she had taken the customer list. He was
aware of the letters Arlene sent to her former customers and
testified that Arlene brought significant new business into his
agency. According to him, when his company makes more
money, he makes more money as a shareholder. Mark also
testified that all of the information on the customer list could
be acquired either through Internet searches or by interview-
ing the farmers.
Nebraska Advance Sheets
FIRST EXPRESS SERVS. GROUP v. EASTER 919
Cite as 286 Neb. 9125. Verdicts and Judgments
for First Express
A jury found for First Express on the breach of contract
claim and awarded $506,035 against Arlene. It found for First
Express on the Trade Secrets claim and awarded $280,320
against Arlene, $84,093 against Mark, and $56,061 against
Mark’s agency. The jury also found for First Express on its
unjust enrichment claim and awarded $280,320 against Arlene,
$84,093 against Mark, and $56,061 against Mark’s agency.
The district court later entered judgment against Arlene
for $506,035, against Mark for $84,093, and against Mark’s
agency for $56,061. The court specifically noted that Arlene
was individually liable for $365,881 and jointly and sever-
ally liable with Mark for $84,093 and with Mark’s agency
for $56,061. Later, the court reduced the judgment against
Arlene to $500,275.72 based on a setoff agreed to by the par-
ties. We granted Mark’s petition to bypass the Nebraska Court
of Appeals.
III. ASSIGNMENTS OF ERROR
Arlene assigns, restated, that the district court erred in
denying her motions for summary judgment, directed verdict,
judgment notwithstanding the verdict, and new trial as to First
Express’ claims because (1) there was no meeting of the minds
as to exhibit A, rendering the agreement unenforceable; (2)
the noncompete, nonsolicitation, and confidentiality provisions
were overly broad and unreasonable, rendering the agreement
unenforceable; (3) the customer list was, as a matter of law,
not a trade secret; and (4) First Express could not sue for both
breach of contract and unjust enrichment. Arlene also assigns,
restated, that the court erred in (1) failing to instruct the jury
that it was First Express’ burden to prove the terms of the writ-
ten agreement by the greater weight of the evidence and (2)
failing to properly instruct the jury on the recoverable damages
for First Express’ claims of misappropriation of trade secrets
and unjust enrichment.
Mark assigns, restated and consolidated, that the court
erred in (1) denying his motions for summary judgment,
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directed verdict, and judgment notwithstanding the verdict as
to First Express’ unjust enrichment claim because there was
no evidence that he engaged in wrongful conduct and the
claim improperly sought profits protected by the corporate
veil; (2) denying his motions for directed verdict and judg-
ment notwithstanding the verdict as to First Express’ misap-
propriation of trade secrets claim because the information on
the customer list was not, as a matter of law, a trade secret,
and because there was no evidence Mark engaged in wrong-
ful conduct; (3) denying his motion for new trial because the
court improperly instructed the jury on unjust enrichment and
recoverable damages, there was no evidence to support pierc-
ing the corporate veil, and the award against him was exces-
sive; and (4) denying Arlene’s motions for summary judg-
ment, directed verdict, judgment notwithstanding the verdict,
and new trial because there was no evidence that she misap-
propriated First Express’ trade secrets and because her actions
did not proximately cause harm to First Express.
IV. STANDARD OF REVIEW
[1-3] Arlene’s and Mark’s assigned errors generally relate to
the same issues at different stages of the proceedings, includ-
ing denials of summary judgment, directed verdict, judgment
notwithstanding the verdict, and new trial. The denial of a
summary judgment motion generally becomes a moot issue on
appeal after a final trial on the merits.1 In reviewing rulings
on motions for directed verdict and judgments notwithstand-
ing the verdict, we give the nonmoving party the benefit of
all evidence and reasonable inferences in his or her favor,
and the question is whether a party is entitled to judgment
as a matter of law.2 Regarding motions for new trial, we will
1
See, e.g., Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d
67 (2012); Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226(2006).
2
See, e.g., Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013);
Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012); Snyder
v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782(2000).
Nebraska Advance Sheets
FIRST EXPRESS SERVS. GROUP v. EASTER 921
Cite as 286 Neb. 912uphold a trial court’s ruling on such a motion absent an abuse
of discretion.3
V. ANALYSIS
We pause to mention what is not at issue in this appeal. At
no point in her brief did Arlene challenge whether her conduct
proximately caused damage to First Express. Mark raised the
issue in his brief in the context of First Express’ claims against
him, but, as will be seen below, we resolve his appeal on dif-
ferent grounds. Furthermore, to the extent Mark attempted to
raise the issue for Arlene, he has no standing to do so because
Mark and Arlene are separate parties with separate representa-
tion on appeal.
We will first address Arlene’s arguments on appeal, followed
by Mark’s arguments. Because the jury returned multiple ver-
dicts against Arlene and Mark, and because the district court
imposed joint and several liability, we will address the validity
of each individual verdict. Following that, we will address the
specific judgments against Arlene and Mark.
1. Arlene’s Appeal
(a) Breach of Contract
Arlene argues that there was no valid, legally enforceable
contract and that, therefore, she cannot be liable for breach
of contract. Specifically, Arlene argues that the contract was
unenforceable because (1) there was no “meeting of the minds”
between the parties on exhibit A and (2) the contract’s noncom-
pete provisions were unenforceable. At oral argument, Arlene
also argued that the contract was incomplete and therefore
unenforceable, which, from her brief, we understand to be an
extension of her “meeting of the minds” argument. But First
Express argues that Arlene failed to preserve these arguments
for our review. We agree.
[4] It is a longstanding rule that “[w]e will not consider
an issue on appeal that was not presented to or passed upon
3
See, e.g., Bowley v. W.S.A., Inc., 264 Neb. 6, 645 N.W.2d 512 (2002).
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by the trial court.”4 At no time during the proceedings on her
motions for summary judgment, directed verdict, judgment
notwithstanding the verdict, or new trial, did Arlene argue to
the court that the underlying contract was unenforceable. To
the contrary, she proceeded on the theory that the contract was
enforceable but contested only the elements of breach, causa-
tion, and damages.
And the record provides ample support for this conclu-
sion. For example, the court instructed the jury that “[t]his
case involve[d] a contract” between Arlene and First Express
and that Arlene “admit[ted] the existence of the contract but
denie[d] that she breached the contract, and further denie[d]
that [First Express] suffered any damage as a result of any
alleged breach.” Arlene did not object to these statements.
Notably, too, Arlene herself counterclaimed for breach of con-
tract (and that claim went to the jury), based on the same con-
tract that she now argues was unenforceable. The record also
reflects many instances where, had Arlene been challenging the
enforceability of the contract, she would have made objections
or arguments, but she did not.
Still, Arlene argues that she preserved her arguments for
review. In her reply brief, Arlene argues that she “has consist­
ently asserted in both her pleadings and sworn testimony that
the alleged contract that First Express attempts to enforce is
void and unenforceable.”5 She points to specific portions of
the pleadings, language in the court’s order on a motion for a
temporary restraining order, and evidence indicating that the
parties disagreed on the existence of exhibit A.
A review of those portions of the record, however, dem-
onstrates that Arlene did not challenge the enforceability of
the contract. The parties contested whether exhibit A existed
and whether the parties had agreed to exhibit A. But Arlene
did not argue that because there had been no “meeting of the
4
See, e.g., Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 962, 831 N.W.2d 696,
703 (2013). See, also, Tolbert v. Jamison, 281 Neb. 206, 794 N.W.2d 877(2011).
5
Reply brief for appellant Arlene at 1.
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FIRST EXPRESS SERVS. GROUP v. EASTER 923
Cite as 286 Neb. 912minds” on exhibit A, the contract was therefore unenforce-
able. And while Arlene challenged the enforceability of the
covenant not to compete, she did not claim that the entire
contract was unenforceable because of the covenant. We also
note that to the extent Arlene’s challenge to the enforceability
of the contract is based on other allegedly unenforceable pro-
visions, the record shows that Arlene proposed the redaction
to the contract and proceeded to trial with those provisions
included. We do not review alleged errors which the assigning
party invited.6
[5,6] Generally, an appellate court disposes of a case on
the theory presented in the trial court.7 Arlene defended the
breach of contract claim at all material times on the theory
that the contract was valid (contesting only the elements of
breach, causation, and damages), and she cannot now assert
for the first time on appeal that the contract was unenforce-
able.8 When a party raises an issue for the first time on appeal,
we will disregard it because a lower court cannot commit
error in resolving an issue never presented and submitted to
it for disposition.9 Because Arlene did not preserve her argu-
ments for review on the breach of contract claim, we do not
address them.
We note briefly that Arlene also argues that the court
improperly instructed the jury on the breach of contract claim.
Specifically, Arlene argues that the court did not instruct the
jury that it was First Express’ burden to prove, by the greater
weight of the evidence, the “‘terms of the contract.’”10 From
her brief, she premises this argument on her earlier argument
regarding the lack of a meeting of the minds on exhibit A, an
issue which Arlene cannot raise for the first time on appeal.
6
See, e.g., Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991).
7
See, e.g., Wise v. Omaha Public Schools, 271 Neb. 635, 714 N.W.2d 19(2006).
8
See Tolbert, supra note 4.
9
See, Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011); Ways v.
Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).
10
Brief for appellant Arlene at 26.
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924 286 NEBRASKA REPORTS
Furthermore, Arlene did not object to the breach of contract
instruction on that basis, which is an additional reason she has
not preserved her argument for review.11 Because Arlene did
not preserve for review her arguments challenging the breach
of contract verdict, we affirm the jury’s finding against her on
that claim.
(b) Misappropriation
of Trade Secrets
Arlene argues that the customer list was not a trade secret
because it was “nothing more than each crop insurance client’s
own insurance information, which was and is ascertainable
by proper means and could never constitute a trade secret as
a matter of law.”12 Not surprisingly, First Express argues that
the information was proprietary and valuable and that it was a
trade secret. We conclude, however, that because the custom-
ers’ identities and contact information were ascertainable from
public sources, and because the other information on the list
was also ascertainable by proper means, the customer list was
not a trade secret.
Nebraska’s Trade Secrets Act13 (the Act) defines a trade
secret as
information, including, but not limited to, a drawing,
formula, pattern, compilation, program, device, method,
technique, code, or process that:
(a) Derives independent economic value, actual or
potential, from not being known to, and not being ascer-
tainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under
the circumstances to maintain its secrecy.14
There is no dispute that the customer list was a “compila-
tion,” and Arlene does not argue that there were not reasonable
11
See, State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013); Robinson v.
Dustrol, Inc., 281 Neb. 45, 793 N.W.2d 338 (2011).
12
Brief for appellant Arlene at 28.
13
Neb. Rev. Stat. §§ 87-501 through 87-507 (Reissue 2008).
14
§ 87-502(4).
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FIRST EXPRESS SERVS. GROUP v. EASTER 925
Cite as 286 Neb. 912efforts to maintain its secrecy. Instead, Arlene contends that
the customer list cannot be a trade secret as a matter of law
because it does not derive economic value from “not being
ascertainable by proper means by . . . other persons.”
Although the Act is based on the Uniform Trade Secrets
Act,15 the Act’s definition of a trade secret differs signifi-
cantly from the uniform act. Under the uniform act, a trade
secret is something that derives independent economic value
“‘from not being [generally] known to, and not being [readily]
ascertainable by proper means by, other persons . . . .’”16 The
Legislature, however, deleted the qualifiers “generally” and
“readily” from the statutory definition.17 And as one commen-
tator noted, Nebraska’s statute greatly narrows the definition of
a trade secret: “[U]nder the literal terms of the . . . language,
if an alleged trade secret is ascertainable at all by any means
that are not ‘improper,’ the would-be secret is peremptorily
excluded from coverage under the [Act].”18 The question, then,
is whether the information on the list here was ascertainable
by proper means.
We give statutory language its plain and ordinary mean-
ing.19 Applying the language here, the customer list does not
qualify as a trade secret under § 87-502(4) because all of the
information on the list was ascertainable by proper means.
Mark testified, and no one disputed, that simple Internet
searches could identify which farmers farmed what land and
could provide contact information for those farmers. Arlene
also demonstrated that she could recite most of her customers’
information from memory.20 The rest of the information on
the list essentially reflected the farmers’ previous insurance
15
See Gerald B. Buechler, Jr., Revealing Nebraska’s Trade Secrets Act, 23
Creighton L. Rev. 323 (1989-90).
16
Id. at 328 n.28.
17
See § 87-502(4)(a).
18
Buechler, supra note 15 at 339 (emphasis in original).
19
See, e.g., Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829
N.W.2d 652 (2013).
20
See Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010).
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926 286 NEBRASKA REPORTS
coverage on their crops. It is undisputed that the individual
farmers had all of that information and that Arlene could
have obtained the information from them through a simple
telephone call.21 Also, once a customer changed agencies, all
of the customer’s prior insurance information became avail-
able from the insurance carrier’s Web site. Though the exact
information required to transfer a customer is a bit unclear,
the record shows that, at most, all that is required is the cus-
tomer’s name, address, type of crops, and signature, all of
which are ascertainable by proper means.
[7] Concluding that this particular customer list is not a
trade secret conforms with our decision in Home Pride Foods
v. Johnson.22 In that case, we noted that “[c]ourts are reluctant
to protect customer lists to the extent that they embody infor-
mation that is readily ascertainable through public sources.”23
We noted further that only “where time and effort have
been expended to identify particular customers with particular
needs or characteristics” will a list be protected.24 And we
noted that “[s]uch lists are distinguishable from mere identi-
ties and locations of customers that anyone could easily iden-
tify as possible customers.”25
In holding that the customer list in Home Pride Foods was
a trade secret, we affirmed the lower court’s finding that the
information on the list was not ascertainable through proper
means. We noted that the record showed that “the customer
list contained information not available from publicly available
lists,”26 such as which customers had previously placed food
orders, along with the amount of those orders. We stated that
“[w]ith such information, a competitor could undercut Home
Pride [Food’s] pricing.”27 And we emphasized that “if the
21
See Harvest Life Ins. Co. v. Getche, 701 N.E.2d 871 (Ind. App. 1998).
22
Home Pride Foods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001).
23
Id. at 709, 634 N.W.2d at 782.
24
Id.25
Id.26
Id.27
Id.Nebraska Advance Sheets
FIRST EXPRESS SERVS. GROUP v. EASTER 927
Cite as 286 Neb. 912information was readily available, why did the appellants pay
$800 for a stolen list?”28
Those same considerations are not present here. Critically,
unlike the facts in Home Pride Foods, the identities and
contact information for the customers were publicly avail-
able. Moreover, once the customer changed agencies (which
required minimal information), all of the customer’s prior
insurance information became available via the insurance car-
rier’s Web site. Furthermore, unlike in Home Pride Foods, the
information on the list did not provide a competitive advan-
tage to Arlene. The record shows that the federal government
sets the prices on crop insurance and that she already knew
(or could find out) the farmers who purchased crop insurance.
And while the appellants in Home Pride Foods had no expla-
nation for why they had paid for a stolen list (if the informa-
tion on it were actually ascertainable through proper means),
here Arlene explained she took the list to track her commis-
sions. A witness for First Express testified to having used such
lists in the past for the same reason. Because the information
on the customer list was ascertainable through proper means,
we conclude that, as a matter of law, it was not a trade secret.
We reverse the jury’s finding against Arlene on the misappro-
priation of trade secrets claim.
(c) Unjust Enrichment
Arlene argues that the court erred in denying her motions for
summary judgment, directed verdict, judgment notwithstand-
ing the verdict, and new trial regarding First Express’ unjust
enrichment claim. Arlene argues that “Nebraska law does not
allow a party to seek unjustment [sic] enrichment damages at
the same time it seeks actual damages for breach of an express
contract.”29 First Express argues that it was simply maintain-
ing alternate theories of recovery, which is acceptable under
Nebraska law.
28
Id.29
Brief for appellant Arlene at 33.
Nebraska Advance Sheets
928 286 NEBRASKA REPORTS
[8,9] Regardless whether the court properly allowed both
claims to go to the jury, Arlene cannot be liable for both
breach of contract and unjust enrichment for the same con-
duct.30 Counsel for First Express conceded this at oral argu-
ment. Furthermore, there is no question regarding the prior-
ity of a claim for breach of contract and a claim for unjust
enrichment flowing from the same conduct; liability under a
contract displaces liability under an unjust enrichment theory.31
Considering that the jury found her liable for breach of con-
tract, it is as if the unjust enrichment verdict did not exist. That
being the case, we need not address this assigned error because
it is not necessary to the disposition of this appeal.32
Similarly, we need not address Arlene’s argument that the
court erred in instructing the jury regarding damages for the
misappropriation of trade secrets claim and the unjust enrich-
ment claim. Arlene cannot be liable for misappropriation of a
trade secret (the customer list was not a trade secret) or unjust
enrichment (she is already liable for breach of contract).
(d) Summation
We affirm the jury’s finding against Arlene on the breach of
contract claim. Arlene failed to preserve for review her argu-
ments challenging the enforceability of the underlying contract.
We reverse the jury’s finding against her on the misappropria-
tion of trade secrets claim. The customer list was not a trade
secret under § 87-502(4). And because the jury found against
Arlene on the breach of contract claim, and because liability
under a contract displaces liability under an unjust enrichment
theory, Arlene is not liable for unjust enrichment.
2. Mark’s Appeal
Mark takes issue with the jury’s verdicts against him for
misappropriation of trade secrets and unjust enrichment. As
discussed earlier, the customer list was not a trade secret,
30
See Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 (1996).
31
See City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011).
32
See, e.g., Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
Nebraska Advance Sheets
FIRST EXPRESS SERVS. GROUP v. EASTER 929
Cite as 286 Neb. 912so we reverse the jury’s verdict against Mark on the misap-
propriation of trade secrets claim. Regarding the jury’s ver-
dict against Mark for unjust enrichment, Mark makes several
arguments as to why we must also reverse that verdict. These
include, restated, that the record failed to show that he engaged
in wrongful or unjust conduct, that his conduct proximately
caused damage to First Express, or that piercing the corpo-
rate veil was appropriate. Alternatively, Mark also argues that
the court should have granted a new trial for several of the
same reasons and, in addition, because of alleged errors in the
jury instructions.
We address only Mark’s corporate veil argument because it
is dispositive. Mark argues that the only benefit he received
from the alleged use of the customer list “was from his owner-
ship share of [the agency], a corporation.”33 And Mark argues
that as an owner of the corporation, his corporate profits can-
not be the subject of a lawsuit without piercing the corporate
veil. First Express disagrees and argues that, regardless, Mark
personally benefited because “he personally gained additional
ownership in the company and in accomplishing a payoff to”
another shareholder.34
Mark cites to cases in other jurisdictions for the propo-
sition that “[u]njust enrichment cannot be used to recover
benefits obtained as an owner of a corporation unless the
pleadings and evidence warrant piercing the corporate veil.”35
Our research reveals other cases which support that position.36
33
Brief for appellant Mark at 33.
34
Brief for appellee First Express in response to brief of appellant Mark
at 19.
35
Brief for appellant Mark at 33 (citing U.S. ex rel. Purcell v. MWI Corp.,
520 F. Supp. 2d 158 (D.D.C. 2007); Howard v. Turnbull, 316 S.W.3d 431(Mo. App. 2010); and Levin v. Kitsis, 82 A.D.3d 1051, 920 N.Y.S.2d 131(2011)).
36
See, Bigio v. Coca-Cola Co., 675 F.3d 163 (2d Cir. 2012), cert. denied
___ U.S. ___, 133 S. Ct. 952, 184 L. Ed. 2d 752 (2013); United States v.
Dean Van Lines, Inc., 531 F.2d 289 (5th Cir. 1976); Usov v. Lazar, No. 13
Civ. 818 (RWS), 2013 U.S. Dist. LEXIS 89257 (S.D.N.Y. June 25, 2013);
Metalmeccanica Del Tiberina v. Kelleher, No. 04-2467, 2005 U.S. App.
LEXIS 23946 (4th Cir. Nov. 4, 2005) (unpublished opinion).
Nebraska Advance Sheets
930 286 NEBRASKA REPORTS
First Express has not provided us with any cases to the con-
trary, and we have not found any. Instead, courts seem to
allow unjust enrichment claims against a shareholder for
benefits obtained from the corporation only where piercing
the corporate veil is appropriate.37 Neither First Express’
pleadings nor the evidence in this case support piercing the
corporate veil.38
First Express argues, however, that Mark obtained a per-
sonal benefit (outside of his corporate profits) because he
gained additional ownership interest in the company due to the
use of the customer list. A jury verdict will not be set aside
unless clearly wrong, and it is sufficient if any competent evi-
dence is presented to the jury upon which it could find for the
successful party.39 But even viewed through this highly defer-
ential lens, the record does not support First Express’ assertion.
Mark testified that he previously had an agreement to purchase
up to a 20-percent ownership of the business. He specifically
noted that the agreement required him to make set payments
which could not be accelerated based on increased profits. He
further testified that he “capped out” his ownership interest, in
that he obtained the maximum 20-percent ownership, in late
December 2009 or early 2010.
The record fails to show that Mark made any gains in
his personal capacity or that he was unjustly enriched in his
personal capacity. Any unjust benefit went to the corpora-
tion, not to Mark individually. The fact that Mark personally
earned more money if his business earned more money is
not sufficient to impose personal liability on Mark for unjust
enrichment.40
So First Express’ claim of unjust enrichment against Mark
fails as a matter of law; he did not receive a personal benefit,
37
See, e.g., Sea-Land Services, Inc. v. Pepper Source, 993 F.2d 1309 (7th
Cir. 1993).
38
See Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995).
39
Wulf, supra note 2; Orduna v. Total Constr. Servs., 271 Neb. 557, 713
N.W.2d 471 (2006).
40
See cases cited supra notes 35-36.
Nebraska Advance Sheets
FIRST EXPRESS SERVS. GROUP v. EASTER 931
Cite as 286 Neb. 912in that he acted in his corporate capacity and received benefits
only because of his status as a shareholder. And because there
is no allegation or apparent reason to pierce the corporate veil,
he is protected. No claim for unjust enrichment will lie against
Mark. Thus, there is no need to address Mark’s other assigned
errors regarding the unjust enrichment claim. From the above
analysis, we reverse both verdicts against Mark.
3. Modifying and R eversing
Judgments
Recall that the jury found for First Express on the breach
of contract claim against Arlene and awarded $506,035. It
found for First Express on the trade secrets claim and awarded
$280,320 against Arlene, $84,093 against Mark, and $56,061
against Mark’s agency. And it also found for First Express on the
unjust enrichment claim and awarded $280,320 against Arlene,
$84,093 against Mark, and $56,061 against Mark’s agency. The
court entered judgment against Arlene for $506,035, against
Mark for $84,093, and against Mark’s agency for $56,061. But
the court specifically noted that Arlene was individually liable
for $365,881 and jointly and severally liable with Mark for
$84,093 and with Mark’s agency for $56,061. The court later
reduced the judgment against Arlene to $500,275.72 based on
a setoff agreed to by the parties.
By setting Arlene’s individual liability at $365,881 and joint
and several liability at $140,154, the court essentially appor-
tioned Arlene’s liability between the various claims—$365,881
for breach of contract and the remaining $140,154 for misap-
propriation of trade secrets and unjust enrichment. This is
because neither Mark nor Mark’s agency had a contract with
First Express, so joint and several liability could only have
been based on the claims of misappropriation of trade secrets
and unjust enrichment. Because we conclude that Arlene is
not liable for either misappropriation of trade secrets or unjust
enrichment, we vacate the latter portion of the judgment
($140,154). We therefore modify the judgment against Arlene
so that she is liable for $360,121.72 (after applying the setoff
of $5,759.28). And, as stated earlier, we reverse the judgment
against Mark in total.
Nebraska Advance Sheets
932 286 NEBRASKA REPORTS
VI. CONCLUSION
We conclude that Arlene is liable for breach of contract
but not for misappropriation of trade secrets or unjust enrich-
ment. We modify the judgment against Arlene accordingly. We
also conclude that Mark is not liable for misappropriation of
trade secrets or unjust enrichment. We reverse the judgment
against Mark.
Affirmed in part as modified,
and in part reversed.
Stephan, Miller-Lerman, and Cassel, JJ., not participating.
State of Nebraska, appellee, v.
Antwan L. Jones, appellant.
___ N.W.2d ___
Filed November 22, 2013. No. S-12-1208.
1. Identification Procedures: Due Process: Appeal and Error. A trial court’s
conclusion whether an identification is consistent with due process is reviewed
de novo, but the court’s findings of historical fact are reviewed for clear error.
2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a
motion to suppress is denied pretrial and again during trial on renewed objection,
an appellate court considers all the evidence, both from trial and from the hear-
ings on the motion to suppress.
3. Motions to Suppress: Courts: Records. District courts shall articulate in writing
or from the bench their general findings when denying or granting a motion to
suppress. The degree of specificity required will vary from case to case.
4. Constitutional Law: Identification Procedures: Due Process. An identification
procedure is constitutionally invalid only when it is so unnecessarily suggestive
and conducive to an irreparably mistaken identification that a defendant is denied
due process of law.
5. Trial: Identification Procedures: Police Officers and Sheriffs: Evidence. In
determining the admissibility of an out-of-court identification, the trial court
must first decide whether the police used an unnecessarily suggestive iden-
tification procedure. If they did, the court must next consider whether that
procedure so tainted the resulting identification as to render it unreliable and
thus inadmissible.
6. Criminal Law: Identification Procedures: Witnesses: Words and Phrases. A
showup is usually defined as a one-on-one confrontation where the witness views
only the suspect, and it is commonly conducted at the scene of the crime, shortly
after the arrest or detention of a suspect and while the incident is still fresh in the
witness’ mind.