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ALPHA WEALTH ADVISORS V. COOK

Cite as 313 Neb. 237

Alpha Wealth Advisors, LLC, a Nebraska limited 

liability company, and Michael Hall, individually, 

appellants, v. Jenna L. Cook, appellee.

___ N.W.2d ___

Filed January 13, 2023. No. S-21-972.

1. Actions: Parties: Standing. Whether a party who commences an action 

has standing, and is therefore the real party in interest, presents a jurisdictional issue.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional 

question does not involve a factual dispute, determination of the issue is 

a matter of law which requires an appellate court to reach a conclusion 

independent from the trial court.

3. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

4. Jurisdiction: Appeal and Error. Before reaching the merits of the legal 

issue presented for review, an appellate court must determine whether it 

has jurisdiction over the matter before it.

5. Standing: Jurisdiction: Parties. Standing refers to whether a party 

had, at the commencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s exercise of its subject 

matter jurisdiction and remedial powers on that party’s behalf.

6. Standing: Parties. To have standing, the plaintiff must have some 

legal or equitable right, title, or interest in the subject matter of the 

controversy.

7. ____: ____. A plaintiff does not generally have standing to bring a case 

on behalf of a third party.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/13/2023 09:10 AM CST
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Cite as 313 Neb. 237

8. Damages: Evidence. Evidence of damages must be sufficient to enable 

the trier of fact to estimate actual damages with a reasonable degree of 

certainty and exactness.

9. 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.

10. Courts: Juries: Damages. While it is the jury’s duty to determine the 

amount of damages, it is the duty of the trial court to refrain from submitting the issue of damages to the jury where the evidence is such that 

a jury could not determine the issue without indulging in speculation 

or conjecture.

11. Summary Judgment: Directed Verdict: Trial: Evidence. Evidence 

offered in summary judgment proceedings, but not offered at trial, cannot be considered in determining whether the evidence adduced at trial 

is sufficient to preclude a directed verdict.

12. Trial: Witnesses: Proof. In order to predicate error upon a ruling of the 

court’s refusing to permit a witness to testify, or to answer a specific 

question, the record must show an offer to prove the facts sought to 

be elicited.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.

Perry A. Pirsch, of Pirsch Legal Services, P.C., L.L.O., for 

appellants.

Jane D. Hansen for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Alpha Wealth Advisors, LLC (Alpha Wealth), and Michael 

Hall (collectively the appellants) appeal the decision of the 

district court for Lancaster County, Nebraska, which granted 

directed verdicts against them. After a traffic accident, the 

appellants sued Jenna L. Cook for negligence, alleging that 

they lost commissions because the injuries that Hall received 

in the accident kept him from meeting with clients for several 
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weeks. The district court found that there was insufficient 

evidence to submit those claims to a jury and granted Cook’s 

motion for a directed verdict against the appellants on those 

claims. Finding no error, we affirm.

BACKGROUND

Hall and Cook were involved in a traffic accident in Lincoln, 

Nebraska, in 2019. Cook admits that she was at fault. Hall is 

a registered investment advisor and a partner in Alpha Wealth.

In suing Cook, the appellants sought damages because the 

soft tissue injuries that Hall received in the accident kept him 

from meeting with clients and potential clients for several 

weeks. The appellants alleged that Hall worked primarily with 

clients who have at least $500,000 to invest and that they 

received commissions of 1.18 percent or 5 percent on investments, as well as an additional .5 percent on certain investments in subsequent years. Accordingly, the appellants claimed 

that Hall’s inability to meet clients decreased his “earnings” in 

the second quarter of 2019 by nearly $33,000. They similarly 

claimed that Alpha Wealth “lost, conservatively, over $71,000 

in gross compensation for 2019 and $19,000 each year going 

forward.” They sought damages for those losses and for Hall’s 

medical expenses and pain and suffering.

A jury trial was held. The appellants presented testimony 

from Hall; Cassi Hillgren, operations manager for Alpha 

Wealth; David Rosenbaum, a forensic economist; and Robert 

Kallio, Hall’s chiropractor.

Hillgren’s Testimony

Hillgren testified that she knew of at least three potential 

clients whom Hall was unable to meet after the accident. She 

stated that Hall typically met with 5 to 10 clients or potential 

clients per week, with “one or two out of ten” meetings resulting in new business. She indicated that she was familiar with 

the appellants’ “gross revenue,” but was not asked to specify 

their revenue or their expenses.
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Hillgren also testified that Hall’s productivity and commissions dropped after the accident. She indicated that Alpha 

Wealth’s expenses “are taken out” of the commissions of Hall 

and another agent and that it was “really hard for [them]” 

after the accident “because of the income that . . . was no 

longer coming in.” She attributed that decrease in revenue to 

the accident.

Hall’s Testimony

Hall testified that he was unable to meet with three or four 

clients after the accident. According to Hall, over 90 percent of 

the people he meets with become clients. Hall explained that 

he and Alpha Wealth received a commission of between .5 and 

3 percent on investments and, in certain cases, in subsequent 

years. He stated that those commissions were “gross revenue 

paid to Alpha Wealth” and that the company’s expenses “come 

out of this gross revenue.” He also testified that he is “by 

far” the “largest income producer for [his] firm.” When asked 

how the accident “impacted the [company’s] revenue stream,” 

Hall stated that it “basically cost [him] a full month of work 

. . . that amounts to $40,000 of revenue coming in, by me not 

being able to get out and see people.”

On cross-examination, Hall testified that he “personally 

lost $32,000” after the accident and that “Alpha Wealth also 

lost income.” He initially stated that the company’s claim 

was “the same” as his, but later clarified that it was $71,000. 

He stated that his concern as to Alpha Wealth “is the future 

income from the people we would have got during that time 

. . . . The trails on all that business . . . over the next five to 

ten years . . . .”

Rosenbaum’s Testimony

Rosenbaum testified that he reviewed “Hall’s commission 

statements” from 2018 and 2019 and found a “variance of 

just over $32,000” between the commissions received in the 

second quarter of 2019 and the commissions received in 

other quarters. The appellants repeatedly attempted to elicit 
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Cite as 313 Neb. 237

testimony from Rosenbaum that the accident caused that 

decrease. However, Cook objected on foundational grounds. 

The district court agreed, but noted that the appellants could 

make an offer of proof.

On cross-examination, Rosenbaum agreed that the commissions in any given month can reflect work with clients in prior 

months and that “whatever was going on in the second quarter 

may have been a result of . . . the first quarter.”

Kallio’s Testimony

Kallio testified that he had been Hall’s chiropractor since 

2011. The appellants repeatedly sought to have Kallio opine 

that the accident caused Hall to lose productivity. However, 

Cook objected to those questions on foundational grounds, and 

her objections were sustained. Kallio did testify that Hall’s 

diagnoses after the accident would have made it painful to sit 

at a desk and work at a computer and that he advised Hall to 

“take more breaks.”

On cross-examination, Kallio testified that Hall had a history of neck and back pain and was treated for such pain 3 days 

before the accident. Kallio also testified that 3 days after the 

accident, Hall stated on a medical form that he had been able 

to work since the accident and that his pain was “moderate.”

At the conclusion of this testimony, the appellants rested 

their case without making an offer of proof. Cook then moved 

for a directed verdict against the appellants on their claims 

for lost commissions. As to Alpha Wealth, Cook argued that 

although the company is “listed as a plaintiff,” no evidence 

had been submitted defining or explaining its claim. Similarly, 

Cook argued that there was no evidence to support Hall’s claim 

for “lost earnings, lost commissions”; “[i]t’s all speculation.” 

Cook also indicated that she had initially understood Hall’s 

claims to be his own, but that the appellants were now making claims on behalf of Alpha Wealth that suggested they were 

“asking for double damages.”

The appellants countered that there was testimony regarding 

“gross revenue” lost by both of the appellants. They argued 
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that Alpha Wealth’s involvement had been clear from the start 

given that Alpha Wealth was named as a plaintiff and argued 

that it is a basic principle of agency law that the commissions 

Hall received while working as “an agent for his company” 

belong to the company. They also argued that Cook submitted 

nothing to suggest another explanation for the decrease in commissions and argued that a jury could reasonably infer from 

the testimony and evidence that Hall had suffered damages “in 

excess of $32,000.”

Thereafter, the district court granted a directed verdict 

against Alpha Wealth and dismissed it from the case because 

“there was no evidence of any damages” to it. The district 

court also granted a directed verdict against Hall on his claims 

for lost commissions because the evidence submitted was 

insufficient for a jury to decide the issue of damages under 

Midlands Transp. Co. v. Apple Lines, Inc. 1 and inadequate to 

support an award of lost profits under Evergreen Farms v. First 

Nat. Bank & Trust.

 2

Hall’s claims for medical expenses and pain and suffering 

were then submitted to the jury, which returned a verdict in his 

favor for $1,312. The district court accepted this verdict on the 

record, and Hall moved for additur, arguing that the amount 

awarded did not adequately compensate him. That motion 

was denied.

The appellants sought review by the Nebraska Court of 

Appeals, and we moved the matter to our docket.

ASSIGNMENTS OF ERROR

The appellants assign, restated, that the district court erred 

in concluding that, as a matter of law, there was no evidence 

of damages to Alpha Wealth or “lost income” to Hall and in 

instructing the jury to “disregard” Rosenbaum’s testimony.

1 Midlands Transp. Co. v. Apple Lines, Inc., 188 Neb. 435, 197 N.W.2d 646 

(1972).

2 Evergreen Farms v. First Nat. Bank & Trust, 250 Neb. 860, 553 N.W.2d 

728 (1996), distinguished on other grounds, ACI Worldwide Corp. v. 

Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156 (2017).
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STANDARD OF REVIEW

[1,2] Whether a party who commences an action has standing, and is therefore the real party in interest, presents a 

jurisdictional issue. 3 When a jurisdictional question does not 

involve a factual dispute, determination of the issue is a matter 

of law which requires an appellate court to reach a conclusion 

independent from the trial court. 4

[3] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 

admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be deduced from the evidence. 5

ANALYSIS

Alpha Wealth’s Damages

The appellants argue that the district court erred in granting 

a directed verdict against Alpha Wealth on its claim for damages because the testimony of “numerous witnesses” showed 

that the company “sustained damages” due to Hall’s inability 

to meet with clients following the accident. 6 They also argue 

that as a basic matter of agency law, the “revenue” that Hall 

produced while “working [as] an agent” for a limited liability 

company belongs to the company. 7 Cook counters that the 

appellants “presented no evidence . . . of any loss incurred by 

Alpha Wealth.” 8

3 Millard Gutter Co. v. Shelter Mut. Ins. Co., 312 Neb. 606, 980 N.W.2d 420 

(2022).

4 Id.

5 de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).

6 Brief for appellants at 30.

7 Id. at 29.

8 Brief for appellee at 11.
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[4] Before reaching the merits of the legal issue presented for review, however, an appellate court must determine 

whether it has jurisdiction over the matter before it. 9 A party 

must have standing before a court can exercise jurisdiction, 

and either a party or the court can raise a question of standing 

at any time during the proceeding. 10 For the reasons discussed 

below, we find that we lack jurisdiction over Alpha Wealth’s 

claim for lost commissions because the company lacks standing to bring an action for lost income due to an employee’s 

personal injuries.

[5-7] Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome 

of the litigation that would warrant a court’s exercise of its 

subject matter jurisdiction and remedial powers on that party’s 

behalf. 11 To have standing, the plaintiff must have some legal 

or equitable right, title, or interest in the subject matter of the 

controversy. 12 A plaintiff does not generally have standing to 

bring a case on behalf of a third party. 13 The focus of the standing inquiry is not whether the claim the plaintiff advances has 

merit; it is on whether the plaintiff is the proper party to assert 

the claim. 14

At oral argument, the appellants agreed that this is a “personal 

injury case.” However, they have not cited, nor have we been 

able to identify, any principle that would allow an employer to 

bring a claim for damages arising from an employee’s personal 

injury. The term “personal injury” denotes a “harm caused to a 

9 State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).

10 Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 

(2019).

11 Equestrian Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953 

N.W.2d 16 (2021).

12 Id.

13 Id.

14 See Millard Gutter Co., supra note 3.
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person” or an “invasion of a personal right,” 15 and prior decisions of this and other courts have recognized that an individual 

who has suffered personal injuries may recover damages for 

his or her medical expenses, loss of earnings, and mental and 

physical pain. 16 Further, the injured individual may be able to 

introduce evidence of the lost profits of a business in which 

that individual has an interest to show his or her own loss of 

earnings. 17 However, this does not mean that a business has its 

own claim for lost profits when an individual who has an interest in that business suffers personal injuries.

In this matter, Alpha Wealth purports to be a Nebraska 

limited liability company. Under Neb. Rev. Stat. § 21-104(a) 

(Reissue 2022), a limited liability company is an entity distinct 

from its members. As such, any personal injuries alleged to 

have been suffered by Hall are not personal injuries suffered 

by Alpha Wealth.

The appellants suggested at oral argument that this case is 

unique because Hall was the primary source of income and 

revenue for Alpha Wealth. However, the record on appeal is 

insufficient for us to distinguish the case on that basis even 

if we were inclined to do so. For example, there is nothing 

in the record that conclusively establishes that Alpha Wealth 

existed as such at the time of the accident, how many members it then had, or its sources of revenue.

15 Black’s Law Dictionary 939 (11th ed. 2019).

16 See, e.g., Gallion v. O’Connor, 242 Neb. 259, 494 N.W.2d 532 (1993); 

Gray v. Wallace, 319 S.W.2d 582 (Mo. 1958); Fernwood Mining Co. v. 

Pluna, 138 Ark. 459, 213 S.W. 397 (1919).

17 Kaufman v. Tripple, 180 Neb. 593, 604, 144 N.W.2d 201, 208 (1966), 

quoting Osterode v. Almquist, 89 Cal. App. 2d 15, 200 P.2d 169 (1948) 

(distinguishing between claims based on businesses where lost profits 

“‘resulted from an inability to exercise personal efforts or skill’” and 

those where lost profits are interwoven with “‘other factors, such as 

invested capital, industry, and skill of others’”).
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Hall’s Lost Income

The appellants argue that the directed verdict against Hall 

was improper because witnesses other than Rosenbaum testified that Hall “lost revenue” after the accident. 18 They also 

argue that the district court’s instruction to the jury to “disregard Rosenbaum’s testimony” was erroneous. 19 Cook counters that Hall’s claim for “lost commissions/profits” was too 

speculative to be submitted to the jury or, alternatively, that 

there was no evidence that Cook’s negligence caused Hall’s 

damages. 20 We agree with Cook. We find that the district court 

properly determined there was insufficient evidence of damages to submit Hall’s claims for lost profits to the jury.

To prevail in an automobile negligence action, a plaintiff 

must prove (1) that the defendant was negligent in one or more 

of the ways alleged, (2) that this negligence was a proximate 

cause of the collision, (3) that the collision was a proximate 

cause of some damage to the plaintiff, and (4) the nature and 

extent of that damage. 21 In this case, there is no dispute that 

Cook’s negligence caused the collision. Instead, the parties 

disagree as to whether that collision caused damage to Hall 

and the extent of the damage.

[8,9] Damages, like any other element of a plaintiff’s cause 

of action, must be pled and proved, and the burden is on the 

plaintiff to offer evidence sufficient to prove the plaintiff’s 

alleged damages. 22 Evidence of damages must be sufficient 

to enable the trier of fact to estimate actual damages with 

a reasonable degree of certainty and exactness. 23 Proof of 

18 Brief for appellants at 29.

19 Id. at 37.

20 Brief for appellee at 12.

21 See Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018).

22 Dietzel Enters. v. J. A. Wever Constr., 312 Neb. 426, 979 N.W.2d 517 

(2022).

23 Id.
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damages to a mathematical certainty is not required; however, 

a plaintiff’s burden of offering evidence sufficient to prove 

damages cannot be sustained by evidence which is speculative 

and conjectural. 24 A claim for lost profits, in particular, must 

be supported by some financial data which permit an estimate 

of the actual loss to be made with reasonable certitude and 

exactness. 25 Also, the plaintiff cannot present just evidence 

of gross profits; there must also be evidence of the plaintiff’s 

costs. 26 This is because only net profits are recoverable, and 

the plaintiff’s net profits cannot be calculated where there is no 

evidence of costs. 27

[10] While it is the jury’s duty to determine the amount of 

damages, it is the duty of the trial court to refrain from submitting the issue of damages to the jury where the evidence is 

such that a jury could not determine the issue without indulging in speculation or conjecture. 28 The opinions of this court 

relied upon by the district court aptly illustrate this.

In Midlands Transp. Co., we affirmed a directed verdict 

against the defendant on its cross-claim for breach of a covenant not to compete even though there was oral testimony 

from an official of the defendant that the loss of the customer 

that the plaintiff allegedly poached reduced the defendant’s 

gross income by “‘about $650 per week.’” 29 The defendant 

did not produce any records or books along with that testimony, and all amounts it cited involved gross income. 30 There 

was no evidence of its expenses or the relationship between 

24 Id.

25 See id.

26 See ACI Worldwide Corp., supra note 2.

27 Id.

28 See Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 

(2012).

29 Midlands Transp. Co., supra note 1, 188 Neb. at 439, 197 N.W.2d at 648.

30 Id.
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its overhead and its gross revenue that could have been used 

in determining its net profits. 31 As a result, we found that if 

the issue of damages had been submitted to the jury, the jury 

would have been left “‘to rove without guide or compass 

through the limitless fields of conjecture and speculation.’” 32

Similarly, in Evergreen Farms, we found that the district 

court erred in overruling the defendant’s motion for a directed 

verdict even though a witness for the plantiff testified that 

if the defendant had lent the money requested, the plaintiff 

could have fed an additional 2,000 head of cattle for 2 years 

and made a profit of 10 cents per head per day for that entire 

period. 33 The plaintiff produced no business records to support that claim, and there was nothing in the record showing 

its profits and losses on its cattle feeding operation. 34 As such, 

we concluded that the plaintiff’s “proof regarding lost profits 

[was] too speculative and conjectural” for the jury to decide 

the issue. 35

In light of these decisions, we find that the district court 

properly declined to submit Hall’s claims for lost commissions to the jury. A claim for lost commissions is effectively a claim for lost profits. 36 In support of their claim, 

the appellants presented oral testimony from Hillgren, Hall, 

and Rosenbaum that Hall’s commissions decreased after the 

accident. Rosenbaum testified that there was a “variance of 

just over $32,000” between Hall’s commissions in the second quarter of 2019 and in the other quarters of 2018 and 

31 Id.

32 Id. at 440, 197 N.W.2d at 649.

33 Evergreen Farms, supra note 2.

34 Id.

35 Id. at 869, 553 N.W.2d at 735.

36 Cf., Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 105 Cal. Rptr. 2d 88 

(2011); Equality Ins. Managers of Ill. v. McNichols, 324 Ill. App. 3d 830, 

755 N.E.2d 75, 257 Ill. Dec. 973 (2001).
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2019. However, Hillgren did not specify an amount, while 

Hall gave two different amounts. Initially, he stated that the 

accident “cost [him] a full month of work . . . that amounts 

to $40,000 of revenue coming in,” but subsequently, he stated 

that he “personally lost $32,000” after the accident. There 

was nothing further. In particular, the appellants presented 

no financial data through either oral testimony or business 

records as to the total amount or sources of Hall’s commissions by quarter or otherwise. 37 Moreover, all the appellants’ 

evidence involved gross revenue. They presented no evidence 

from which their net profits could be calculated. There was 

testimony that Hall’s commissions and Alpha Wealth’s revenue were used to pay expenses, but there was no indication 

of what or how much those expenses were.

[11] Neither the commissions statements referred to as 

exhibits 25 and 26 in Rosenbaum’s testimony nor exhibit 

13, mentioned in the appellants’ brief on appeal, can be seen 

to provide the requisite financial data. None of those exhibits were offered and admitted into evidence at trial, as the 

appellants acknowledged at oral argument. Exhibits 25 and 

26 originated as attachments to exhibit 2, which was offered 

and admitted into evidence at an earlier hearing on a motion 

for summary judgment. As such, they are part of the record 

on appeal. However, evidence offered in summary judgment 

proceedings, but not offered at trial, cannot be considered in 

determining whether the evidence adduced at trial is sufficient to preclude a directed verdict. 38 In contrast, exhibit 13, 

which purportedly showed Hall’s range of earnings in each 

quarter of 2018 and 2019, is not part of the record on appeal. 

37 Cf. ACI Worldwide Corp., supra note 2 (declining to opine on whether 

business records are required to be submitted to support claim for lost 

profits under prior decisions, but concluding that plaintiff in that case 

had submitted such records, and its expert’s lost profits analysis was 

supported by testimony of two other witnesses).

38 King v. Crowell Memorial Home, 261 Neb. 177, 622 N.W.2d 588 (2001).
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Evidence which does not appear in the record cannot be considered by this court on appeal. 39

[12] The appellants’ argument that the district court erred 

in directing the jury to disregard their expert’s testimony is 

also not supported by the record on appeal. Nothing in the 

record suggests that the district court gave such a direction 

to the jury. The district court sustained Cook’s objections to 

specific questions asked of Rosenbaum on direct examination, 

and Rosenbaum was not allowed to opine that Hall’s alleged 

injuries were the cause of the apparent decrease in his commissions in the second quarter of 2019. However, the appellants 

did not provide an offer of proof and have not appealed those 

rulings. In order to predicate error upon a ruling of the court’s 

refusing to permit a witness to testify, or to answer a specific 

question, the record must show an offer to prove the facts 

sought to be elicited. 40

CONCLUSION

The appellants’ arguments that the district court erred in 

granting a directed verdict against them and instructing the jury 

to disregard the testimony of their expert are without merit. 

Accordingly, the judgment of the district court is affirmed.

Affirmed.

39 See Abboud v. Cutler, 238 Neb. 177, 469 N.W.2d 763 (1991).

40 O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).