Summit Restoration v. Keller , 29 Neb. Ct. App. 243 ( 2020 )

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SUMMIT RESTORATION v. KELLER
Cite as 29 Neb. App. 243Summit Restoration, Inc., appellant
and cross-appellee, v. Larry G.
Keller et al., appellees
and cross-appellants.
___ N.W.2d ___
Filed December 8, 2020. No. A-19-1111.
1. Judgments: Verdicts: Directed Verdict. A motion for judgment not-
withstanding the verdict may be granted when the movant’s previous
motion for directed verdict, made at the conclusion of all the evidence,
should have been sustained.
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. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
5. Torts: Intent: Proof. To succeed on a claim for tortious interference
with a business relationship or expectancy, a plaintiff must prove (1) the
existence of a valid business relationship or expectancy, (2) knowledge
by the interferer of the relationship or expectancy, (3) an unjustified
intentional act of interference on the part of the interferer, (4) proof that
the interference caused the harm sustained, and (5) damage to the party
whose relationship or expectancy was disrupted.
6. Torts: Employer and Employee. Factors to consider in determining
whether interference with a business relationship is improper include:
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Cite as 29 Neb. App. 243(1) the nature of the actor’s conduct, (2) the actor’s motive, (3) the
interests of the other with which the actor’s conduct interferes, (4) the
interests sought to be advanced by the actor, (5) the social interests in
protecting the freedom of action of the actor and the contractual interests
of the other, (6) the proximity or remoteness of the actor’s conduct to
the interference, and (7) the relations between the parties.
7. Torts: Employer and Employee: Conspiracy: Liability: Proof. In
proving conspiracy to tortiously interfere with a business relationship, a
claim of civil conspiracy is not actionable in itself, but serves to impose
vicarious liability for the underlying tort of those who are a party to
the conspiracy.
8. Conspiracy: Liability. By establishing a civil conspiracy, a plaintiff
extends liability for the wrongful acts underlying the conspiracy to
those actors who did not actively engage in the acts, but conspired in
their commission.
9. Appeal and Error. An appellate court is not obligated to engage in
an analysis that is not needed to adjudicate the case and controversy
before it.
10. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
11. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
12. Damages: Evidence: Proof. Damages, like any other element of the
plaintiff’s case, must be pled and proved, and the burden is on the plain-
tiff to offer evidence sufficient to prove the plaintiff’s alleged damages.
13. Damages: Proof. A claim for lost profits must be supported by some
financial data which permit an estimate of the actual loss to be made
with reasonable certitude and exactness.
Appeal from the District Court for Sarpy County: Michael
A. Smith, Judge. Affirmed as modified.
Eric R. Chandler and Cory J. Rooney, of Law Office of Eric
R. Chandler, P.C., L.L.O., for appellant.
Adam R. Feeney and Brian J. Brislen, of Lamson, Dugan &
Murray, L.L.P., for appellee Larry G. Keller.
Jeffrey A. Nix, of Pansing, Hogan, Ernst & Bachman, L.L.P.,
for appellees Aspen Contracting, Inc., et al.
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SUMMIT RESTORATION v. KELLER
Cite as 29 Neb. App. 243Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
Summit Restoration, Inc. (Summit), appeals the order of the
district court for Sarpy County which reduced the amount of
a jury’s damages award in Summit’s favor. Larry G. Keller,
Patrick M. Nussbeck, and Aspen Contracting, Inc., doing busi-
ness as ASI Contracting, Inc. (Aspen), cross-appeal the denial
of various posttrial motions. As explained below, we affirm
as modified.
BACKGROUND
Summit is a Colorado corporation with a headquarters in
Sarpy County, Nebraska. It does business as a general contrac-
tor, including storm restoration work and roofing work. Aspen
is a Kansas corporation doing business in Sarpy County and is
a competitor of Summit, also doing work as a general contrac-
tor and performing roofing work. Nussbeck is the president
and chief executive officer of Aspen. Keller began working
for Summit in June 2013, and in June 2014, he left Summit to
begin working for Aspen.
In February 2015, Summit filed a complaint against Keller,
Nussbeck, Aspen, and another former Summit employee who
was later dismissed as a defendant. An amended complaint was
filed, and the causes of action alleged in the amended com-
plaint that are relevant to this appeal include tortious interfer-
ence with a business expectancy, civil conspiracy, and breach
of fiduciary duty and duty of loyalty.
A jury trial was held over the course of several days in May
2019. The evidence revealed that Aaron Kantor, president of
Summit, started the company in 2009. In June 2013, Kantor
hired Keller as chief operating officer, but according to Kantor,
shortly thereafter, Keller’s title was changed to chief execu-
tive officer. There is a dispute among the parties as to whether
Keller was actually the chief executive officer of Summit, but
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Cite as 29 Neb. App. 243it was uncontroverted that he ran the day-to-day operations of
Summit, with testimony that he “ran the business.” Keller was
paid an annual salary of $120,000. Despite all of this, Keller
never had a written employment contract with Summit, nor did
he sign a confidentiality agreement, noncompetition agreement,
or nonsolicitation agreement.
The Omaha, Nebraska, area experienced a major hailstorm
on June 3, 2014. Keller and Summit’s sales representatives
made contact with homeowners who had suffered damage from
the storm in an effort to obtain business for Summit. Keller
explained that his practice while he was with Summit was to
knock on doors and meet with the homeowner, do an inspec-
tion of the property, and then create an estimate report. He
would try to meet the insurance adjuster, if possible, and then
he would get a scope of work from the insurance company and
compare it with his estimate. Once he knew what work was
going to be done, he would talk to the homeowner and discuss
what he or she wanted and then draft a contingency agreement.
The purpose of doing an estimate prior to having a homeowner
sign a contingency agreement with Summit was to gain the
homeowner’s confidence and build a relationship.
During this time, Keller began communicating with
Nussbeck at Aspen. On June 13, 2014, Keller sent Nussbeck
an email, informing him that Summit had “over [$]500,000
sold over the last week and seven inspections to do with five
others to work up.” Keller indicated that Summit had the
potential for $5 to $8 million in sales that year. On June 16,
Nussbeck responded to Keller with information detailing how
general managers are compensated at Aspen because, accord-
ing to Nussbeck, hiring Keller as a general manager “sounded
like a good opportunity.” Keller interpreted the June 16 email
as a job offer and replied on June 20, asking if the offer was
still “on the table.” Keller met with Nussbeck on June 21 and
finalized the details of his employment with Aspen by June 22.
At the same time, several sales representatives who had been
working with Summit also left and went to work with Aspen.
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Cite as 29 Neb. App. 243Keller’s compensation at Aspen was 50 percent of the profits
of the jobs he sold and 50 percent of the profits of the location
that he managed.
The evidence at trial revealed that there were 17 homeown-
ers Summit had contacted after the June 3, 2014, storm who
ultimately had Aspen complete their repair work. All 17 of
the jobs were insurance claim jobs, and according to Kantor,
Summit had client relationships with all 17 homeowners. For
these jobs, Summit anticipated earning a profit margin between
30 and 45 percent. Kantor acknowledged that Summit did not
have written contingency agreements with all 17 homeowners
and that Summit had not prepared estimates for all 17 of them.
He explained, however, that even without a signed contingency
agreement or estimate with these homeowners, Summit had
performed work outside of just knocking on the door and meet-
ing with the homeowner one time.
Keller admitted that after he left Summit and was hired by
Aspen, he had additional contact with those 17 homeowners.
He also acknowledged that he asked the other Summit rep-
resentatives who converted to Aspen to talk to the customers
with whom they had worked while at Summit. Kantor testified
that Summit’s database of customers was not a secret; however,
it was not public knowledge either. Summit stored its customer
files in an online storage system called Dropbox. Keller knew
the names and addresses of the homeowners who had been
contacted by Summit and that Summit’s customer files were
stored in Dropbox. Kantor testified that through Dropbox, he
was able to “watch Summit jobs becoming Aspen jobs” after
Keller left Summit because Keller did not log out of Summit’s
Dropbox account when he left. An employee of Summit also
testified that she observed the movement of Summit’s customer
files in Keller’s Dropbox on her computer after he left Summit
and went to Aspen.
Adam Johnson testified as an expert witness for Summit. He
testified that he owned a roofing company since 2013 and that
approximately 95 percent of his company’s work came from
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Cite as 29 Neb. App. 243residential insurance claims. He testified that in his experience,
it would be “[v]ery rare” to have a situation where a customer
signed a contingency agreement and then did not end up hav-
ing that company complete the work. He said that when he has
a signed contingency agreement from a customer, he “certainly
expect[s]” to do the job.
Johnson also described software that is used for repair
estimates. Named “Xactimate,” the software is a program
utilized by the insurance industry, roofing companies, and
contractors to manage and price out property damage claims,
and theoretically, it ensures that multiple adjusters provide the
same pricing for a loss. Its purpose is to make a uniform sys-
tem of adjusting and pricing insurance claims. Both Summit
and Aspen use Xactimate to complete repair estimates for
their customers.
After Summit rested at trial, Keller, Nussbeck, and Aspen
moved for a directed verdict as to all claims. The district court
denied the motions. All three defendants then rested without
presenting any witnesses or evidence. Keller, Nussbeck, and
Aspen renewed their motions for directed verdict at the conclu-
sion of all evidence, and the motions were again denied.
After deliberating, the jury found in Summit’s favor on the
tortious interference claim against “some or all Defendants,”
in Summit’s favor as to breach of fiduciary duty and duty of
loyalty against Keller, and in Summit’s favor on the civil con-
spiracy claim against all three defendants. The jury calculated
damages in the amount of $396,172.
Keller, Nussbeck, and Aspen filed motions for judgment
notwithstanding the verdict (JNOV) and a new trial. The
district court denied the motions for JNOV. With regard to
the motions for new trial, the court found that the evidence
adduced at trial showed that the profit margin for an insurance
repair job was a minimum of 30 percent but that there was no
evidence as to what factors could be used to calculate a higher
profit margin, whether a higher profit could be expected on
the 17 jobs at issue here, or to what extent the profit could
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Cite as 29 Neb. App. 243be greater than 30 percent. The court therefore concluded that
the jury engaged in speculation and conjecture in awarding
profits above 30 percent. Accordingly, the court determined
that the highest possible award for damages with a 30-percent
profit margin was $284,911.29, the amount that was shown
on a demonstrative exhibit Summit utilized during its clos-
ing argument. The district court further reduced the damages
award by $13,713.93 because one homeowner declined to
repair outbuildings on his property; thus, the court found that
the jury engaged in speculation in awarding a loss of profit for
work that was not performed. Finally, the damages award was
reduced an additional $10,013.11 as a result of a downpayment
Summit collected and retained from one of the 17 homeowners.
The court’s order therefore indicates that it partially granted
the motions for new trial and reduced the award of damages
to $261,184.25. Summit appeals, and Keller, Nussbeck, and
Aspen cross-appeal.
ASSIGNMENTS OF ERROR
On appeal, Summit assigns, restated, that the district court
erred in (1) finding that there was insufficient evidence to sup-
port a damages calculation using a profit margin greater than
30 percent and (2) determining that evidence of repair by a
homeowner as to a specific job was necessary.
On cross-appeal, Keller assigns that the district court erred
in (1) denying his motion for JNOV, (2) denying his motion for
directed verdict, (3) denying his motion for new trial, and (4)
refusing a proffered jury instruction.
On cross-appeal, Nussbeck and Aspen assign, renumbered,
that the district court erred in (1) denying their motion for
JNOV, (2) denying their motion for directed verdict, (3) deny-
ing their motion for new trial, and (4) submitting jury instruc-
tions and a verdict form to the jury concerning Nussbeck and
Aspen regarding breach of loyalty, breach of fiduciary duty,
and civil conspiracy.
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Cite as 29 Neb. App. 243ANALYSIS
Because of the nature of the assigned errors on appeal and
cross-appeal, we address the issues raised in the cross-appeals
first and then proceed to those raised by Summit on appeal.
Motions for JNOV and
Directed Verdict.
In their respective cross-appeals, Keller, Nussbeck, and
Aspen assign that the district court erred in denying their
motions for JNOV and directed verdict as to all claims. They
generally argue that Summit failed to present sufficient evi-
dence to support its claims and that thus, the matters should not
have been submitted to the jury. We disagree.
[1-4] A motion for JNOV may be granted when the mov-
ant’s previous motion for directed verdict, made at the conclu-
sion of all the evidence, should have been sustained. Facilities
Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906
N.W.2d 1 (2018). To sustain a motion for JNOV, 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 JNOV, 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 relevant evidence. Id. A motion
for JNOV asks the trial court to revisit whether the movant’s
prior motion for directed verdict should have been granted as
a matter of law. See id. The standard for a motion for directed
verdict is the same. See Anderson v. Babbe, 304 Neb. 186,
933 N.W.2d 813 (2019). Review of a ruling on a motion for
JNOV is de novo on the record. LeRette v. Howard, 300 Neb.
128, 912 N.W.2d 706 (2018). The question here, therefore, is
whether after admitting as true all of the relevant evidence
that is favorable to Summit and giving Summit the benefit of
all proper inferences deducible from the relevant evidence,
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Cite as 29 Neb. App. 243reasonable minds could draw but one conclusion such that the
issues should have been resolved as a matter of law.
[5] To succeed on a claim for tortious interference with a
business relationship or expectancy, a plaintiff must prove (1)
the existence of a valid business relationship or expectancy,
(2) knowledge by the interferer of the relationship or expect­
ancy, (3) an unjustified intentional act of interference on the
part of the interferer, (4) proof that the interference caused the
harm sustained, and (5) damage to the party whose relation-
ship or expectancy was disrupted. Thompson v. Johnson, 299
Neb. 819, 910 N.W.2d 800 (2018). On cross-appeal, Keller,
Nussbeck, and Aspen challenge only the first and third fac-
tors listed above. We therefore limit our review to whether
Summit adduced sufficient evidence to submit those matters
to the jury.
With respect to the first factor, a business expectancy was
defined in the jury instructions in the instant case. The instruc-
tions provided that a written or oral contract is not necessary
to establish a valid business relationship or expectancy; rather,
a business expectancy may include a prospective contractual
relationship if it was reasonably probable that the parties would
have entered into a business relationship but for the unjustified
interference. Neither party objected to that definition.
Upon our de novo review of the record, we conclude that
there was sufficient evidence presented creating a factual ques-
tion for the jury as to the existence of a valid business expect­
ancy, so the court properly declined to resolve the issue as a
matter of law. Stated differently, the cross-appellants argue
that there was insufficient evidence from which the jury could
decide that it was reasonably probable that the 17 homeowners
at issue would have entered into business relationships with
Summit but for the interference; we do not agree.
Several of the 17 homeowners signed contingency agree-
ments with Summit, evidencing their intention that Summit
complete the repair work. Although we recognize that the
agreements did not bind the homeowners to utilizing Summit’s
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Cite as 29 Neb. App. 243services, the jury could find that the agreements memorialized
the homeowners’ intentions to do so and that they would have
done so but for the interference. To this point, Johnson testi-
fied that in his experience, it would be “[v]ery rare” to have
a situation where a customer signed a contingency agreement
and then did not end up having that company complete the
work. He explained that when he has a signed contingency
agreement from a customer, he “certainly expect[s]” to do
the job.
A lack of a signed agreement does not mandate the con-
clusion that there was no expectation of business, however.
According to Johnson, frequently an agreement is not signed
until after the insurance adjuster has been to the house to
assess the damage. Even Keller acknowledged that signing a
contingency agreement is not one of the first things that occurs
when contacting a homeowner. He explained that his practice
while at Summit was to knock on the door of a home and meet
with the homeowner, do an inspection of the property, create
an estimate, speak with the insurance adjuster, and then talk
to the homeowner again to finalize the work to be performed
before writing up a contract. Keller explained that the purpose
of doing an estimate prior to having a homeowner sign a con-
tingency agreement was to gain the confidence of and build a
relationship with the homeowner: In other words, to create a
business expectancy.
In addition, Summit had created estimates for several of the
17 jobs, and according to Kantor, Summit had an expectation
of business with the homeowners after creating an estimate for
them. Kantor further testified that even in the instances where
there were no signed agreements or estimates yet created,
Summit had expended efforts with the homeowners beyond
knocking on the door and meeting with the homeowner one
time. According to Kantor, Summit had “client relationships”
with all 17 homeowners.
Moreover, Keller testified that between June 6 and 13,
2014, Summit had sold over $500,000 worth of roofing jobs,
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Cite as 29 Neb. App. 243demonstrating that he considered the homeowners Summit
spoke with during that timeframe to be a “sale” for which
Summit would complete the repair work and earn a profit,
regardless of whether there was a signed contingency agree-
ment, creation of an estimate, or neither. Mirroring his testi-
mony, Keller’s June 13 email to Nussbeck, informing him that
Summit had “over [$]500,000 sold over the last week” and
expressing concern about Summit’s ability to complete all of
the work, again, indicates that he expected that Summit would
complete the $500,000 in repair jobs despite the fact that not
all of these “sales” had a signed contingency agreement or
completed estimate. Giving Summit the benefit of all of the
inferences from the above-recited relevant evidence, we con-
clude that the evidence was sufficient to submit the question of
valid business expectancies for all 17 homes to the jury.
The third factor for establishing tortious interference with
a business expectancy requires proof of an unjustified inten-
tional act of interference on the part of the interferer. Keller,
Nussbeck, and Aspen argue that the evidence was insufficient
to show that any interference was unjustified.
[6] To assist in determining whether interference is unjusti-
fied, Nebraska has adopted the seven-factor balancing test of
the Restatement (Second) of Torts § 767 (1979). See Sulu v.
Magana, 293 Neb. 148, 879 N.W.2d 674 (2016). Under the
Restatement’s general test, factors to consider in determining
whether interference with a business relationship is improper
include: (1) the nature of the actor’s conduct, (2) the actor’s
motive, (3) the interests of the other with which the actor’s
conduct interferes, (4) the interests sought to be advanced by
the actor, (5) the social interests in protecting the freedom of
action of the actor and the contractual interests of the other,
(6) the proximity or remoteness of the actor’s conduct to the
interference, and (7) the relations between the parties. Sulu v.
Magana, supra.The Nebraska Supreme Court has recognized that § 767
of the Restatement provides that in making its analysis, the
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Cite as 29 Neb. App. 243fact finder is to engage in a balancing process and that the
determination of whether an interference is improper depends
upon a comparative appraisal of these factors. See Huff v.
Swartz, 258 Neb. 820, 606 N.W.2d 461 (2000). Further, the
decision is whether it was improper under the circumstances—
that is, under the particular facts of the individual case, not in
terms of rules of law or generalizations. Id. The Supreme Court
additionally observed:
“The issue in each case is whether the interference is
improper or not under the circumstances; whether, upon
a consideration of the relative significance of the fac-
tors involved, the conduct should be permitted without
liability, despite its effect of harm to another. The deci-
sion therefore depends upon a judgment and choice of
values in each situation. This Section states the important
factors to be weighed against each other and balanced in
arriving at a judgment; but it does not exhaust the list of
possible factors.”
Id. at 829, 606 N.W.2d at 468, quoting Restatement, supra,
§ 767, comment b. Accordingly, balancing and weighing
the evidence relating to the seven factors of § 767 of the
Restatement, and any other relevant factors, under the facts of
this particular case in order to determine whether the interfer-
ence was unjustified or improper is a factual determination to
be left to the jury. Thus, the district court properly declined to
decide the issue as a matter of law.
Keller, Nussbeck, and Aspen do not argue that the jury
improperly assessed the relevant factors; instead, they claim
that their actions amounted to permissible competition and cite
to the Restatement (Second) of Torts § 768 (1979), which has
been adopted in Nebraska. See, Lamar Co. v. City of Fremont,
278 Neb. 485, 771 N.W.2d 894 (2009); Recio v. Evers, 278
Neb. 405, 771 N.W.2d 121 (2009); Miller Chemical Co.,
Inc. v. Tams, 211 Neb. 837, 320 N.W.2d 759 (1982), disap-
proved on other grounds, Matheson v. Stork, 239 Neb. 547,
477 N.W.2d 156 (1991). This so-called competitor’s privilege
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Cite as 29 Neb. App. 243provides that one who intentionally causes a third person not
to enter into a prospective contractual relation with another
who is his competitor or not to continue an existing contract
terminable at will does not interfere improperly with the
other’s relation if
(a) the relation concerns a matter involved in the com-
petition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful
restraint of trade and
(d) his purpose is at least in part to advance his interest
in competing with the other.
Restatement, supra, § 768 at 39. The question here is whether
“wrongful means” were used in the interference. If the actor
employs wrongful means, he is not justified under the rule
stated in § 768. See Restatement, supra, § 768, comment e.
The court in the present case instructed the jury on the
definition of “unjustified” by listing the factors of §§ 767 and
768 of the Restatement. Neither party objected to that defini-
tion. According to the Restatement, supra, § 768, comment e.,
wrongful means include physical violence, fraud, civil suits,
and criminal prosecutions, but the jury was not provided this
or any definition of “wrongful means.” Thus, determining what
constitutes wrongful means was left for the jury’s determina-
tion. We find that there was evidence from which the jury
could determine that the interference was accomplished by
wrongful means and was thereby unjustified.
Kantor admitted that Summit’s database of customers was
not a secret; however, it was not public knowledge either.
Keller knew the names and addresses of the homeowners who
had been contacted by Summit and that Summit’s customer
files were stored in Dropbox. Kantor testified that through
Dropbox, he was able to “watch Summit jobs becoming Aspen
jobs” after Keller left Summit. An employee of Summit also
testified that she observed on her computer the movement
of Summit’s customer files in Keller’s Dropbox after he left
Summit and went to Aspen.
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Cite as 29 Neb. App. 243Furthermore, a photograph of one of the 17 residences,
which had been taken by an independent contractor working on
behalf of Summit, was included in an Aspen proposal. A June
19, 2014, proposal for windows for one of the 17 homes lists
the customer as Aspen with Keller’s phone number, but the
project/delivery address is listed as Summit. On that same day,
Keller released a lien that Summit had on a property, which
typically would not be filed until payment had been made. On
June 22, Keller, using his Summit email address, emailed a
work order for one of the 17 homeowners to Nussbeck.
Keller acknowledged that after he left Summit, he had addi-
tional contact with the 17 homeowners and that he asked the
other Summit representatives who converted to Aspen to talk
to the customers with whom they had worked while at Summit.
For one of the 17 homeowners, Keller told Kantor that he would
inform her that he was leaving Summit but that she would be in
“good hands” with Kantor and Summit; instead, Keller spoke
with that homeowner and persuaded her to go with Aspen. In
a June 24, 2014, text message, Keller informed Nussbeck that
“Garth is flipped,” and Nussbeck replied, “Awesome.” At trial,
Nussbeck denied knowing who “Garth” referred to, but it was
the first name of one of the 17 homeowners.
It was clear that Keller stood to earn a significantly higher
income through his employment with Aspen. He was paid an
annual salary of $120,000 by Summit, but at Aspen, he stood
to earn 50 percent of the profits from his job location (Omaha)
and 50 percent of the profits of any specific job he sold. Given
the amount of just the 17 properties involved in this case, it is
apparent that Keller’s compensation at Aspen would be signifi-
cantly greater than his salary at Summit.
We understand that Keller had the ability to terminate his
employment with Summit at any time and begin working for
Aspen and thereafter to engage in competition with Summit.
However, the question before us is whether, after admitting as
true all of the relevant evidence that is favorable to Summit
and giving Summit the benefit of all proper inferences deduc-
ible from the relevant evidence, reasonable minds could draw
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Cite as 29 Neb. App. 243but one conclusion. We conclude that based on the evidence
outlined above, the jury could have found that it was wrongful
and unjustified for Keller to transfer and utilize information
obtained while working at Summit for the benefit of Aspen and
himself. The district court therefore properly submitted to the
jury the issues of whether Keller employed “wrongful means”
and whether the interference was unjustified. As a result, the
court did not err in denying the motions for directed verdict
and JNOV as to the tortious interference claim.
We recognize that most of the evidence and actions cited
above were taken by Keller, and to this point, Nussbeck and
Aspen argue that there was insufficient evidence to submit to
the jury the question of their liability for tortious interference
with a business expectancy. The jury, however, also found in
Summit’s favor on the civil conspiracy claim against Keller,
Nussbeck, and Aspen.
[7,8] In proving conspiracy to tortiously interfere with a
business relationship, a claim of civil conspiracy is not action-
able in itself, but serves to impose vicarious liability for the
underlying tort of those who are a party to the conspiracy.
Koster v. P & P Enters., 248 Neb. 759, 539 N.W.2d 274 (1995).
By establishing a civil conspiracy, a plaintiff extends liability
for the wrongful acts underlying the conspiracy to those actors
who did not actively engage in the acts, but conspired in their
commission. United Gen. Title Ins. Co. v. Malone, 289 Neb.
1006, 858 N.W.2d 196 (2015).
In the present case, the jury’s finding of a civil conspiracy
extends liability for tortious interference to Nussbeck and
Aspen. And with respect to the civil conspiracy claim, Keller,
Nussbeck, and Aspen argue only that that claim fails because
the underlying tort should fail. Having upheld liability on the
tortious interference with a business expectancy claim, we
affirm liability on behalf of all three cross-appellants as a result
of the jury’s finding of a civil conspiracy.
[9] We note that the cross-appellants also challenge the
denial of their motions for JNOV and directed verdict as to
the claims for breach of fiduciary duty and breach of loyalty.
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Cite as 29 Neb. App. 243Because we find no error in the jury’s decision on the tortious
interference claim against all three cross-appellants, we need
not address whether it was error to submit the additional two
causes of action to the jury. An appellate court is not obligated
to engage in an analysis that is not needed to adjudicate the
case and controversy before it. City of Lincoln v. County of
Lancaster, 297 Neb. 256, 898 N.W.2d 374 (2017).
Motion for New Trial.
Keller argues that the district court erred in denying his
motion for new trial. He claims that a new trial was warranted
because the court erred in denying his proffered jury instruc-
tion, allowing Summit to rely upon Aspen estimates to prove
its damages, and failing to further reduce the damages award
based on Summit’s failure to present evidence to support liabil-
ity against Keller for some or all of the 17 repair jobs.
We can quickly dispose of Keller’s first and third claims. As
Keller explains in his brief, the jury instruction he offered at
trial would have clarified that Keller was not an actual officer
of Summit and therefore owed no fiduciary duty to the com-
pany. This claim and jury instruction were relevant only to the
claims of breach of fiduciary duty and duty of loyalty. Because
we have affirmed the jury’s finding in Summit’s favor as to
the tortious interference with a business expectancy and civil
conspiracy claims, we need not consider errors relating to the
additional causes of action.
Similarly, in Keller’s third claim in the context of his argu-
ment relating to his motion for new trial, Keller relies on his
previous assertion that Summit failed to establish his liability
relating to all 17 repair jobs, and therefore, Summit was not
entitled to the damages resulting therefrom. Having already
addressed and rejected those arguments above based on our
finding that the evidence was sufficient for the jury to find
Keller liable as to all 17 homeowners, we also reject his claim
that the court should have further reduced the damages award.
With respect to Keller’s second claim, he asserts that his
motion for new trial should have been granted because the
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Cite as 29 Neb. App. 243court committed prejudicial error by allowing Summit to rely
upon Aspen estimates to prove its lost profits. We disagree.
[10] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion. Anderson v. Babbe, 304 Neb.
186, 933 N.W.2d 813 (2019). We find no abuse of discretion
here. Xactimate is an estimating software application used
by roofing companies, contractors, and insurance companies
to give an estimate for the amount of damages found. Both
Summit and Aspen use it. As long as similar information is
input into the software, whether an operator is working for
Summit or Aspen, it should give the same estimate. As Johnson
explained, the software’s purpose is to make a uniform system
of adjusting and pricing insurance claims.
Summit had not yet had the opportunity to create estimates
for all 17 of the homeowners at issue here; however, Aspen not
only prepared estimates for the customers, but it completed the
repairs. Thus, its records were relevant to the profit Summit
could have earned from those repair jobs. Because Summit
and Aspen use the same software to create estimated costs for
their customers, we find no abuse of discretion in denying the
motion for new trial based on Summit’s reliance on Aspen’s
estimates to prove the profits it would have earned but for the
tortious interference.
[11] Although Nussbeck and Aspen also assigned as error
the district court’s denial of their motion for new trial, this
error is not argued in their brief. To be considered by an appel-
late court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error. Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).
To the extent the denial of their motion for new trial is incorpo-
rated into their argument relating to damages, we address those
issues separately below.
Damages.
On appeal, Summit argues that the district court erred in
reducing the jury’s damages award for two reasons. Although
we disagree with the procedure by which the court reduced
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Cite as 29 Neb. App. 243the damages, we affirm the court’s decision to do so but mod-
ify the amount.
Before addressing the merits of Summit’s arguments, we
note the procedure by which the district court reduced the jury’s
damages award. Keller, Nussbeck, and Aspen filed posttrial
motions for JNOV and new trial. The court’s order indicates
that it denied the motions for JNOV but granted the motions
for new trial in part and then reduced the damages award
on its own. In doing so, the court relied upon law regarding
remit­titur, which provides that where the damages awarded are
excessive, and the excessive amount is distinguishable and sub-
ject to exact determination, the defect may be remedied by a
remittitur of the excess. See Nelson-Holst v. Iverson, 239 Neb.
911, 479 N.W.2d 759 (1992). On these grounds, the district
court reduced the jury’s damages award.
However, a request for remittitur is generally made in lieu
of a request for a new trial. Jacobs Engr. Group v. ConAgra
Foods, 301 Neb. 38, 917 N.W.2d 435 (2018). See, also, R & D
Properties v. Altech Constr. Co., 279 Neb. 74, 776 N.W.2d
493 (2009) (holding that trial court should have granted remit-
titur, rather than new trial); Barbour v. Jenson Commercial
Distributing Co., 212 Neb. 512, 323 N.W.2d 824 (1982) (dis-
cussing where trial court has ordered reduction of verdict as
condition of denying new trial); McMillan Co. v. Nebraska E.
G. & T. Coop., Inc., 192 Neb. 744, 224 N.W.2d 184 (1974)
(affirming trial court’s decision granting new trial upon plain-
tiff’s refusal to file remittitur). But see LeRette v. Howard, 300
Neb. 128, 912 N.W.2d 706 (2018) (upholding trial court’s par-
tial grant of motion for JNOV and reduction of jury’s award of
damages, albeit in modified amount).
Here, the district court purportedly granted the motion for
new trial on the issue of damages and also reduced the dam-
ages award. If a jury’s award is excessive and the amount
of excess can be estimated with reasonable certainty, the
better practice is to deny a new trial on the condition that
the plaintiff accept the lower amount of damages, and if the
plaintiff rejects the remittitur, then order a new trial. See John
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Cite as 29 Neb. App. 243P. Lenich, Nebraska Civil Procedure § 31:14 (2020). As we
explain below, we conclude that the amount of damages should
have been determined as a matter of law, and thus, the district
court should have granted the motions for JNOV and reduced
the jury award accordingly. See Facilities Cost Mgmt. Group
v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018)
(to sustain motion for JNOV, court resolves controversy as
matter of law and may do so only when facts are such that
reasonable minds can draw but one conclusion). We therefore
affirm the court’s conclusion that the jury award was not sup-
ported by the evidence adduced at trial and its reduction of the
award, but modify the amount to that which is supported by
the evidence.
The district court found that the evidence established that
Summit’s profit margin on insurance jobs such as these 17
jobs was at least 30 percent but that there was no evidence
as to what factors could be used to calculate a higher profit
margin, whether a higher profit could be expected on the 17
jobs present here, or to what extent the profit could be greater
than 30 percent. As a result, the court determined that the jury
engaged in speculation and conjecture in awarding profits
above 30 percent.
[12] Damages, like any other element of the plaintiff’s case,
must be pled and proved, and the burden is on the plaintiff to
offer evidence sufficient to prove the plaintiff’s alleged dam-
ages. See Pan v. IOC Realty Specialist, 301 Neb. 256, 918
N.W.2d 273 (2018). Evidence of damages must be sufficient
to enable the trier of fact to estimate actual damages with a
reasonable degree of certainty and exactness. Id. Proof of dam-
ages to a mathematical certainty is not required; however, a
plaintiff’s burden of offering evidence sufficient to prove dam-
ages cannot be sustained by evidence which is speculative and
conjectural. Id.[13] A claim for lost profits must be supported by some
financial data which permit an estimate of the actual loss to
be made with reasonable certitude and exactness. Bedore v.
Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). The
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Cite as 29 Neb. App. 243Supreme Court has previously held that the claimant of dam-
ages must furnish appropriate data to enable the trier of fact to
find such damages with reasonable certainty without resorting
to conjecture or speculation. See K & R, Inc. v. Crete Storage
Corp., 194 Neb. 138, 231 N.W.2d 110 (1975). The court
observed that where a plaintiff, in attempting to prove loss
of profits, fails to produce available records relevant to such
question, the plaintiff does not fulfill his or her obligation of
proving damages with reasonable certainty. See id.In the instant case, the only evidence of Summit’s expected
profit margin was adduced through Kantor’s testimony. He
explained that jobs covered by insurance, such as the 17 repair
jobs at issue here, “will be fairly profitable, on the low end 30
percent, all the way up to 45 [percent]. You know, it goes—it
goes up from there.” He was asked, “You’re saying the rough
profit would be 30 percent on up for insurance work,” and
he responded, “Yes.” Kantor expected to make “[a]t least
30 percent” profit on these jobs and repeatedly referred to a
30-percent profit margin as a “conservative” estimate. Kantor
explained that overhead and profit could also be factored in
and would be an additional 20-percent profit on top of the
30-­percent profit margin included in the base cost of a job.
The Summit estimates that were received into evidence pre-
sumably include a certain profit margin but do not specify an
exact percentage. The demonstrative exhibit Summit utilized
in its closing argument contained figures from the Summit
estimates, where available, and Summit informed the jury that
the calculations on the exhibit represented a 30-percent profit
margin, which was the jury’s “starting point” for calculating
damages. There was no evidence, however, as to where these
17 jobs would fall in the range of a 30- to 45-percent profit
or what factors determine the profit margin on any given
job. Further, there were no financial records or documentary
evidence offered to support Summit’s claim of a profit mar-
gin above 30 percent. Given the evidence that was presented
at trial, we cannot conclude that the district court erred in
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Cite as 29 Neb. App. 243finding that the evidence of any profit margin greater than 30
percent was speculative and not supported by the evidence.
In order to recalculate damages, the court started with
the figures shown on Summit’s demonstrative exhibit, which
was a compilation of Aspen’s estimates, where available, and
Summit’s estimates where Aspen had none. The total of these
estimates was shown as $607,645.21. From that, Summit cal-
culated a 30-percent profit of $182,293.56 ($607,645.21 × .30).
Where applicable, it also added a 20-percent “Overhead and
Profit” for an additional $102,617.73. Adding the profit and
“Overhead and Profit,” Summit argued that the starting point
for damages was $284,911.29 ($182,293.56 + $102,617.73).
The court determined that this amount was the maximum
amount to which Summit was entitled. We agree.
We note that for the properties for which there was an
Aspen estimate available, Summit utilized those figures on its
exhibit; otherwise, the figures included on the exhibit were
from Summit estimates. None of the parties object to the
base figures included on the demonstrative exhibit; rather,
they argue only regarding the evidence surrounding Summit’s
anticipated profit margin. Therefore, given the data included
on the demonstrative exhibit, which is supported by the actual
estimates offered and received into evidence, the district court
did not abuse its discretion in initially reducing the damages
to the figure shown on the exhibit.
Summit further argues that the district court erred in deter-
mining that evidence of repair by a homeowner as to a specific
job was necessary and reducing the damages award by the
amount of the work that the homeowner elected not to com-
plete. The proper measure of damages presents a question of
law. Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749(2015). We conclude that the district court properly reduced the
damages related to the incomplete work because the evidence
established that the homeowner elected not to complete all of
the work included in the initial estimate, so Aspen repaired
only the dwelling on the property and not the outbuildings.
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Cite as 29 Neb. App. 243Because all of the work was not ultimately completed, it was
speculative for the jury to conclude that it would have been
completed had Summit done the work instead of Aspen. As a
result, Summit is entitled to lost profits only for the cost of the
dwelling repair.
Although we agree with the district court’s analysis, we dis-
agree with its calculation’s regarding this homeowner. Using
documentation from Aspen, the estimated cost of the dwelling
repair only for that particular homeowner was $56,630.36. The
court properly reduced the amount of profit by $13,713.93, but
failed to recalculate the reduced “Overhead and Profit” associ-
ated with this property. The “Overhead and Profit” equal to 20
percent of $56,630.36 would total $11,326.07. Replacing the
numbers for this homeowner on the demonstrative exhibit leads
to recalculated total damages of $236,469.07.
The court further reduced the jury award by the amount of a
downpayment made by a homeowner that Summit was permit-
ted to retain, and Summit does not assign this decision as error.
We therefore affirm the further reduction of the total damages
by $10,013.11. As a result, the modified total damages amount
that is supported by the evidence and to which Summit was
entitled equals $226,455.96.
CONCLUSION
Based on the foregoing, we affirm the district court’s deci-
sion to reduce the jury award but modify the court’s calculation
of damages to $226,455.96.
Affirmed as modified.