Buell, Winter, Mousel & Associates, Inc. v. Olmsted & Perry Consulting Engineers, Inc.
| Decision Date | 11 March 1988 |
| Docket Number | No. 86-379,86-379 |
| Citation | 420 N.W.2d 280,227 Neb. 770 |
| Court | Nebraska Supreme Court |
| Parties | BUELL, WINTER, MOUSEL & ASSOCIATES, INC., a Nebraska Corporation, Appellee, v. OLMSTED & PERRY CONSULTING ENGINEERS, INC., et al., Appellants. |
Syllabus by the Court
1. Equity: Appeal and Error. In an action in equity, the Nebraska Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where the credible evidence is in conflict on a material issue of fact, it will consider, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
2. Appeal and Error. In an action at law the findings and conclusions of the trier of fact are not to be set aside unless clearly wrong.
3. Appeal and Error. In an action at law tried without a jury, it is not the role of the Nebraska Supreme Court to resolve conflicts in or reweigh the evidence, and it will presume that the trial court resolved any controverted facts in favor of the successful party and will consider the evidence and permissible inferences therefrom most favorably to that party.
4. Actions: Pleadings. Whether an action is legal or equitable in nature is determined from its main object as disclosed by the averments of the pleadings and the relief sought.
5. Appeal and Error. Regardless of the scope of review, the Nebraska Supreme Court has an obligation to reach independent conclusions on questions of law.
6. Breach of Contract: Damages. One injured by a breach of contract is entitled to recover all its damages, including the gains prevented as well as the losses sustained, provided the damages are reasonably certain and such as might naturally be expected to follow the breach.
7. Damages: Proof. While lost profits need not be proved with mathematical certainty, neither can they be established by evidence which is speculative and conjectural.
8. Damages: Proof. Loss of prospective profits may be recovered if the evidence shows with reasonable certainty both their occurrence and the extent thereof; uncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty as to amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable loss.
C.L. Robinson of Fitzgerald & Brown, Omaha, for appellants.
William T. Ginsburg of Zuber & Ginsburg, Omaha, for appellee.
Appellee, Buell, Winter, Mousel & Associates, Inc., sued the appellants, Olmsted & Perry Consulting Engineers, Inc., James J. Olmsted, and Steven W. Perry, alleging that the individual appellants formed the corporate appellant, Olmsted & Perry, and, while still employed by Buell, enticed some of their employer's clients into becoming clients of the newly formed corporate appellant. The district court determined that appellants had breached their duty of loyalty to Buell and sustained Buell's motion for summary judgment on that issue. Following a trial on the issue of damages, the district court entered a judgment in favor of Buell in the sum of $39,714.21 against the appellants, who assign eight errors to the district court's judgment. These errors merge to claim that the district court erred in finding (1) that appellants breached their fiduciary duties as agents of Buell and (2) that Buell proved damages. Since the record sustains the second claim, we, without considering the first claim, reverse the judgment of the district court and remand with direction to dismiss the action.
The parties begin by disagreeing as to the scope of our review. The appellants argue that the matter is one in equity. In such a case this court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where the credible evidence is in conflict on a material issue of fact, we consider, and may give weight to, the fact the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Pluhacek v. Nebraska Lutheran Outdoor Ministries, 227 Neb. 778, 420 N.W.2d 286 (1988); III Lounge, Inc. v. Gaines, 227 Neb. 585, 419 N.W.2d 143 (1988); Pallas v. Black, 226 Neb. 728, 414 N.W.2d 805 (1987). Buell, on the other hand, argues the case is one at law and that, as a consequence, the findings and conclusions of the trier of fact are not to be set aside unless clearly wrong. Moreover, in an action at law tried without a jury, it is not the role of this court to resolve conflicts in or reweigh the evidence, and this court will presume that the trial court resolved any controverted facts in favor of the successful party and will consider the evidence and permissible inferences therefrom most favorably to that party. Washington Heights Co. v. Frazier, 226 Neb. 127, 409 N.W.2d 612 (1987).
Whether an action is legal or equitable in nature is determined from its main object as disclosed by the averments of the pleadings and the relief sought. White v. Medico Life Ins. Co., 212 Neb. 901, 327 N.W.2d 606 (1982); Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). Buell's petition not only sought to recover damages from the appellants but sought as well, under a variety of theories, to enjoin them from, among other things, "unfairly competing with" Buell; that is, from serving clients which the individual appellants had enticed to Olmsted & Perry while the two men were employed by Buell. Although not contained in the record, it appears that a temporary injunction of some nature was issued and was "continued in effect thereafter." Reply brief for Appellants at 1. The fact a summary judgment was granted Buell on the issue of whether appellants had breached their fiduciary duties, leaving the issue of damages to be litigated separately, does not change the essential character of the action. See III Lounge, Inc. v. Gaines, supra, in which an action in equity for specific performance continued to be treated as one in equity after remand on the issue of damages. Accord Nixon v. Harkins, 220 Neb. 286, 369 N.W.2d 625 (1985), in which an action for specific performance remained one in equity notwithstanding the fact the parties stipulated that the only issue for determination by the court was the fair market value of the property. See, also, Johnson v. NM Farms Bartlett, 226 Neb. 680, 414 N.W.2d 256 (1987), which, without discussion, treats an action seeking both injunctive relief and damages as a suit in equity. Thus, the action presently before us is one in equity, and we review the factual issues as they relate to the issue of damages accordingly.
However, with regard to the questions of law presented, we have the...
To continue reading
Request your trial
-
Fisbeck v. Scherbarth, Inc.
...See, e.g., Communications Workers of America v. Abrahamson, 228 Neb. 335, 422 N.W.2d 547 (1988); Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, 227 Neb. 770, 420 N.W.2d 280 (1988). Where a law action is tried to the court without a jury, the finding of the court has the effect of a verd......
-
World Radio Laboratories, Inc. v. Coopers & Lybrand
...had an identical customer base. The court concluded his testimony was speculative and conjectural. In Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, 227 Neb. 770, 420 N.W.2d 280 (1988), engineers had breached their employment contracts with the plaintiff by leaving and then competing wi......
-
W. Plains, L. L.C. v. Retzlaff Grain Co., 16-2650.
...or forming one's own competing business while still working for the employer. See Buell, Winter, Mousel & Assocs., Inc. v. Olmsted & Perry Consulting Eng'rs, Inc., 227 Neb. 770, 420 N.W.2d 280, 283 (1988). The jury found all the employee defendants breached their duty of loyalty. The defend......
-
Synacek v. Omaha Cold Storage Terminals, Inc.
...determined from its main object as disclosed by the averments of the petition and the relief sought. Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, 227 Neb. 770, 420 N.W.2d 280 (1988). Equity acquires jurisdiction over the action when the averments of the pleadings and the relief sought......