Kinney v. HP SMITH FORD, LLC

667 N.W.2d 529, 266 Neb. 591, 2003 WL 21916427
CourtNebraska Supreme Court
DecidedAugust 8, 2003
DocketS-02-689
StatusPublished

This text of 667 N.W.2d 529 (Kinney v. HP SMITH FORD, LLC) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kinney v. HP SMITH FORD, LLC, 667 N.W.2d 529, 266 Neb. 591, 2003 WL 21916427 (Neb. 2003).

Opinion

667 N.W.2d 529 (2003)
266 Neb. 591

Douglas A. KINNEY, Appellee and Cross-Appellant,
v.
H.P. SMITH FORD, L.L.C., Appellant and Cross-Appellee.

No. S-02-689.

Supreme Court of Nebraska.

August 8, 2003.

*531 Joseph E. Jones and Heidi L. Evatt, Omaha, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., and Jerome T. Wolf and David S. Ladwig, of Sonnenschein, Nath & Rosenthal, Kansas City, MO, for appellant.

Gregory C. Scaglione, of Koley Jessen, P.C., Omaha, for appellee.

*532 HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

NATURE OF CASE

Douglas A. Kinney, who served as the managing partner of H.P. Smith Ford, L.L.C. (H.P. Smith), for approximately 18 months, brought this action against H.P. Smith after his employment was terminated. In his petition, Kinney alleged that H.P. Smith owed him unpaid wages, including bonuses, and the value of his 10-percent ownership in the dealership. He also requested replevin of personal items. H.P. Smith filed a counterclaim, alleging that Kinney had breached his fiduciary duty during the time he managed the dealership. The jury returned verdicts in favor of Kinney on the claims asserted in his petition and found against H.P. Smith on its counterclaim.

FACTS

From 1983 to 1994, Kinney worked at various automobile dealerships in the capacity of controller or head of the accounting department. Prior to 1997, he worked for Wolfe Automotive Group (WAG) in Kansas City, Missouri, as the controller, internal auditor, and chief financial officer. While Kinney worked for WAG in Kansas City, he was paid a salary of $8,500 per month plus a bonus equal to 1 percent of the net profits of the 13 dealerships owned by WAG.

In 1997, Kinney was given the opportunity to purchase a 10-percent equity interest in H.P. Smith, located in Omaha, Nebraska. Kinney, Jeffrey Wolfe, Cynthia Tucci, and David Gatchell then entered into an operating agreement which governed the operations of H.P. Smith and the relationship between the owners. Kinney made an initial investment of $10,000 which constituted the opening balance of his capital account. Effective July 1, Kinney became the managing partner of H.P. Smith and received a salary of $10,000 per month plus a bonus equal to 10 percent of H.P. Smith's net profits. He also received a relocation bonus of $40,000.

In early 1998, Robert Priest, Jr., WAG's chief financial officer, prepared an accounting of bonuses due Kinney for his 1997 employment with WAG and H.P. Smith. The accounting indicated a bonus of $56,500 for work in Omaha and a bonus of $19,455 for "Pre-Omaha" employment. Kinney subsequently prepared his own reconciliation because he disagreed with Priest's calculations. Kinney's calculations indicated an Omaha bonus of $68,478 and a bonus for pre-Omaha employment of $41,797.56.

Throughout 1998, Kinney continued receiving a monthly salary of $10,000 plus benefits and a 10-percent bonus on H.P. Smith's net profits. He was also offered certain bonuses as a performance incentive plan. H.P. Smith subsequently prepared an accounting of Kinney's 1998 bonuses which showed that he had earned a bonus of $90,064. Subtracting advances Kinney had received, H.P. Smith's calculations reflected that Kinney owed the dealership $2,980. Kinney disputed these figures and prepared his own reconciliation, which indicated that he had earned a bonus of $142,712, of which he had received only $19,804.83. Kinney claimed he was owed $122,907.17 for 1998. His employment was terminated on January 20, 1999.

On March 2, 1999, Kinney commenced this action against H.P. Smith for replevin; unpaid wages, including bonuses, under the Nebraska Wage Payment and Collection Act, Neb.Rev.Stat. §§ 48-1228 to 48-1232 (Reissue 1998); and breach of contract *533 for failure to pay him the balance of his capital account. In its answer, H.P. Smith denied liability and filed a counterclaim asserting that Kinney had breached his fiduciary duty and that as a result, H.P. Smith had been damaged.

At trial, Kinney testified as to the increase of his capital account since his initial capital investment. He stated that following his termination of employment, H.P. Smith transferred his 10-percent ownership interest to Tom Fitzgerald and Larry Villines without paying him for his interest. Kinney alleged that as of December 31, 1998, the balance of his capital account was $126,150.60.

The jury returned verdicts in favor of Kinney in the following amounts: $132,500 on his claim for unpaid wages; $116,645 on his claim for the value of his capital account; and $560 for his replevin action. The jury found against H.P. Smith on the counterclaim for breach of fiduciary duty.

The trial court entered judgment in favor of Kinney in the amount of $249,705 plus prejudgment interest in the amount of $32,037.78. The court also awarded attorney fees of $40,000 and costs of $4,081.28 pursuant to § 48-1231. Pursuant to § 48-1232, the court ordered H.P. Smith to pay $1,000 into a fund to be distributed to the common schools of the State of Nebraska.

H.P. Smith filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial. The motion was denied, and H.P. Smith appeals.

ASSIGNMENTS OF ERROR

H.P. Smith assigns as error that the trial court erred in (1) submitting Kinney's unpaid bonus and breach of contract claims to the jury because Kinney failed to offer any testimony that his damages were calculated in compliance with (a) generally accepted accounting principles (GAAP), as required by the operating agreement, and (b) the strict terms of the operating agreement governing the calculation of capital account balances; (2) overruling H.P. Smith's objection to Kinney's testimony concerning his alleged damages because he failed to lay a foundation qualifying himself as an expert on GAAP; (3) overruling H.P. Smith's objection that Kinney failed to lay an adequate foundation for his damages testimony and exhibits because expert testimony on GAAP was required; and (4) submitting Kinney's unpaid bonus and breach of contract claims to the jury because it permitted the jury to award damages to him based on speculation and conjecture, to H.P. Smith's prejudice.

On cross-appeal, Kinney claims that the trial court erred when it ordered H.P. Smith to pay $1,000 into a fund for the common schools of the state pursuant to § 48-1232. Kinney asserts that the court should have assessed an amount equal to the judgment on his claim for unpaid wages or double that amount.

STANDARD OF REVIEW

[1] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Green Tree Fin. Servicing v. Sutton, 264 Neb. 533, 650 N.W.2d 228 (2002).

ANALYSIS

H.P. Smith argues that the trial court should not have submitted Kinney's claims concerning an unpaid bonus and the amount in his capital account to the jury because he failed to show that his damages were calculated in compliance with GAAP and that the capital account balance was calculated in compliance with the *534 terms of the operating agreement.

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Kinney v. H.P. Smith Ford, L.L.C.
667 N.W.2d 529 (Nebraska Supreme Court, 2003)

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Bluebook (online)
667 N.W.2d 529, 266 Neb. 591, 2003 WL 21916427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinney-v-hp-smith-ford-llc-neb-2003.