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MARR v. WEST CORPORATION

Cite as 310 Neb. 21

Kenneth Marr, appellee, v. West 

Corporation, doing business as 

West Customer Management 

Group, LLC, a Delaware 

corporation, appellant.

___ N.W.2d ___

Filed August 27, 2021. No. S-20-636.

1. Judgments: Verdicts: Appeal and Error. Review of a ruling on a 

motion for judgment notwithstanding the verdict is de novo on the 

record.

2. Judgments: Verdicts. To sustain a motion for judgment notwithstanding 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 evidence 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.

4. Motions for New Trial: Appeal and Error. A motion for new trial is 

addressed to the discretion of the trial court, whose discretion will be 

upheld in the absence of an abuse of that discretion.

5. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

6. ____: ____: ____. The exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is admitted without objection.

7. Testimony: Evidence: Appeal and Error. Testimony objected to which 

is substantially similar to evidence admitted without objection results in 

no prejudicial error.

Nebraska Supreme Court Online Library

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

10/29/2021 01:07 AM CDT
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8. Evidence. Evidence is relevant if it has any tendency to make the 

existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without 

the evidence.

9. ____. To be relevant, the probative value of evidence need only be 

something more than nothing.

Appeal from the District Court for Douglas County: James 

T. Gleason, Judge. Affirmed.

Kenneth M. Wentz III, Jessica Källström-Schreckengost, and 

Nicholas B. McGrath, of Jackson Lewis, P.C., for appellant.

Patrick J. Barrett and Rhianna A. Kittrell, of Fraser Stryker, 

P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

A jury found that West Corporation (West) breached contracts with a former employee, Kenneth Marr, when it refused 

to pay certain compensation to which Marr claimed he was 

entitled upon his resignation. The jury returned a verdict in 

favor of Marr of just over $400,000. West thereafter filed a 

motion for judgment notwithstanding the verdict and a motion 

for a new trial. The district court denied those motions, and 

West appeals. We find no reversible error on the part of the 

district court and therefore affirm.

I. BACKGROUND

1. Marr’s Contracts With West

Marr began his career with West in 1991. It was his first 

job after college. He began working in a call center but earned 

a number of promotions over the years. In 2009, he was promoted to senior vice president of technical operations.

About the time Marr was promoted, West and Marr entered 

into an “Alternative Employment Agreement” (Employment 

Agreement). In the Employment Agreement, Marr agreed, 
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among other things, that if he left employment at West, he 

would not solicit business from West’s customers for 1 year 

following his departure. In exchange, West agreed that if Marr 

voluntarily terminated his employment “for Good Reason,” 

he would be entitled to receive as severance pay an amount 

equal to 1 year of his base salary, as well as his projected 

annual bonus.

With respect to “Good Reason,” the Employment Agreement 

provided as follows:

For purposes of this Agreement, Executive shall have 

“Good Reason” to terminate this Agreement if one of the 

following events occurs without the Executive’s express 

written consent:

1. both (i) a reduction in any material respect in the 

Executive’s position(s), duties or responsibilities with 

the Company, and (ii) an adverse material change in 

the Executive’s reporting responsibilities, titles or offices 

with the Company . . . .

The Employment Agreement additionally provided that in 

order to terminate for good reason, Marr was required to give 

written notice to West “as to the details of the basis for such 

Good Reason” within 30 days following the event giving rise 

to such reason and West “must fail to provide a reasonable 

cure” within 30 days after receiving such notice.

In September 2015, while Marr was still working as West’s 

senior vice president of technical operations, Marr and West 

entered into a “Restricted Stock Award Agreement” (Stock 

Agreement). Under the Stock Agreement, Marr was awarded 

certain restricted West stock. The Stock Agreement provided 

that Marr’s unvested stock would fully vest and that he would 

be entitled to dividends related to such stock in the event 

of a “Qualifying CIC Termination,” which would encompass 

Marr’s ending his employment within 2 years after a change in 

control of West’s ownership for a “Good Reason.” The Stock 

Agreement listed a number of events that would give Marr 

“Good Reason” to resign, including
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either (A) a reduction in any material respect in the 

Grantee’s position(s), duties or responsibilities with the 

Company, as in effect during the 90-day period immediately prior to such Change in Control, or (B) an adverse 

material change in the Grantee’s reporting responsibilities, titles or offices with the Company as in effect immediately prior to such Change in Control.

The Stock Agreement also provided that in order to resign 

for “Good Reason,” Marr was required to provide written 

notice to West of the occurrence of any of the events which the 

Stock Agreement stated would give Marr good reason to resign 

within 90 days of his having “knowledge of the circumstances 

constituting such event” and that West must have failed to 

correct the “circumstances resulting” in any of those events 

within 30 days after receiving such notice.

2. Changes at West

In October 2017, West was acquired by a company headquartered in New York. At that time, Marr was responsible 

for technical operations in certain areas within West. The next 

month, Marr’s role was changed; he was given responsibility 

for technical strategy for West as a whole.

In February 2018, Marr’s role at West changed again. West 

formed a new “Integration & Divestitures” team, which would 

be led by Pam Mortenson, an executive vice president. Marr 

was given the title of senior vice president of integration 

management and reported to Mortenson. While reporting to 

Mortenson, Marr worked exclusively on integrations. Marr 

did not work on divestitures. As their names suggest, in an 

integration, West would work to incorporate a company it had 

acquired into its operations, while in a divestiture, West would 

work to sell a company to another entity.

In the last week of April 2018, Mortenson provided notice 

that she was leaving West. Upon Mortenson’s departure, 

Marr began reporting to Erik Carlson. Carlson had been hired 

a few weeks before as a vice president in West’s finance 
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department, and, unlike Marr, Carlson did not live or work in 

Omaha, Nebraska. Marr had previously reported through West’s 

operations department rather than the finance department.

After Marr began reporting to Carlson, Carlson removed 

Marr from several integrations on which he was working and 

assigned him to work on divestitures. Marr asked those working on divestitures how he could help, but he was told there 

was nothing to be done at that point.

3. Marr’s Resignation From West

In January 2018, Marr applied for a position as chief technology officer at First National Technology Solutions (FNTS). 

He completed several interviews for that position with representatives of FNTS in February, March, and April. In May, 

Marr negotiated with FNTS regarding the chief technology 

officer position, and on May 18, FNTS offered him the position. He accepted the offer on May 20.

On May 21, 2018, Marr sent Carlson an email stating that 

changes that had taken place in the past few weeks “within our 

Integration Management Organization structure and operating 

model have resulted in a material reduction in my position’s 

duties and responsibilities as well as a significant reduction in 

my reporting responsibilities.” Marr stated that he was notifying West that he was terminating his employment for good 

reason under the Employment Agreement if no reasonable cure 

could be reached.

Marr resigned his position at West effective June 21, 2018. 

He began working for FNTS the next week.

4. Lawsuit

A few months after his resignation from West, Marr filed a 

lawsuit against West. He alleged that he notified West on May 

21, 2018, that he intended to voluntarily terminate his employment for good reason under the Employment Agreement and 

the Stock Agreement if a reasonable cure could not be reached; 

that West had failed to provide a reasonable cure; and that 
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he voluntarily terminated his employment on June 21, 2018. 

Marr claimed that because he had resigned for good reason 

under the Employment Agreement and the Stock Agreement, 

Marr was contractually entitled to compensation, which West 

had refused to pay.

The case proceeded to a 3-day trial before a jury. At trial, 

Marr, an in-house counsel at West, Carlson, and Mortenson testified. Testimony that is relevant to the issues raised on appeal 

is discussed in the analysis section below.

During the trial, the district court made several evidentiary 

rulings that are at issue in this appeal. The district court sustained Marr’s objections on relevancy and hearsay grounds to 

certain exhibits showing Marr’s communications with FNTS 

regarding his job application. The district court also overruled West’s objections when Carlson was asked on crossexamination where certain West executives lived and worked 

and how old he was.

5. Jury Verdict and Posttrial Motions

At the conclusion of the trial, the jury entered a verdict in 

favor of Marr, finding West liable to Marr for damages in the 

amount of $400,540.45.

After the verdict, West filed a motion for judgment notwithstanding the verdict and a motion for new trial. The district 

court denied both motions, and West appealed.

II. ASSIGNMENTS OF ERROR

West assigns on appeal that the district court erred (1) by 

overruling West’s motion for judgment notwithstanding the 

verdict and (2) by overruling West’s motion for a new trial. 

West argues it was entitled to a new trial based on the evidentiary rulings noted above. West also separately assigns error to 

each of these evidentiary rulings.

III. STANDARD OF REVIEW

[1-3] Review of a ruling on a motion for judgment notwithstanding the verdict is de novo on the record. Valley Boys 
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v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856 

(2020). To sustain a motion for judgment notwithstanding 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. Id. On a motion for judgment notwithstanding the verdict, the moving party is deemed 

to have admitted as true all the relevant evidence 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.

[4] A motion for new trial is addressed to the discretion of 

the trial court, whose discretion will be upheld in the absence 

of an abuse of that discretion. Martensen v. Rejda Bros., 283 

Neb. 279, 808 N.W.2d 855 (2012).

IV. ANALYSIS

1. Judgment Notwithstanding Verdict

West’s primary assignment of error is that the district court 

erred by denying its motion for judgment notwithstanding the 

verdict. It contends that its motion should have been granted 

for several reasons. First, West argues that Marr failed to prove 

that he was eligible to resign for good reason under either 

the Employment Agreement or the Stock Agreement. Second, 

West contends that Marr’s actual motivation for resigning 

was unrelated to any good reason, as defined by the agreements. Finally, West claims that Marr failed to give sufficient 

notice to West under both the Employment Agreement and the 

Stock Agreement. In the sections below, we address each of 

West’s arguments.

(a) Good Reason Resignation Under 

Employment Agreement

As noted above, the Employment Agreement provided 

that Marr could resign for good reason if the following 

occurred: “(i) a reduction in any material respect in [Marr’s] 
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position(s), duties or responsibilities with [West], and (ii) an 

adverse material change in [Marr’s] reporting responsibilities, 

titles or offices with [West].” West contends that the jury could 

not have reasonably concluded that Marr’s duties and responsibilities were materially reduced or that his reporting obligations were adversely changed.

In support of its argument that Marr’s duties and responsibilities were never materially reduced and that his reporting obligations were not adversely changed, West largely highlights 

testimony from Carlson and Mortenson. It points to testimony 

from Mortenson that she understood when the “Integration 

& Divestitures” team was formed that members of the team, 

presumably including Marr, would be involved in divestitures 

as well as integrations. It points to testimony from Carlson as 

to the importance of the work on divestitures. He testified that 

working on divestitures was similar to working on integrations and that both required strategic thinking. He also testified that the economic value of the divestitures Marr worked 

on exceeded the value of the integrations he worked on. With 

respect to Marr’s reporting obligations, West directs us to testimony from Carlson that he did not believe that Marr’s opportunities would be reduced by reporting through the finance 

department rather than the operations department.

The evidence West points to was undoubtedly supportive 

of its position that Marr’s duties and responsibilities had not 

been materially reduced and that his reporting obligations had 

not been materially altered. However, a party is not entitled to 

judgment notwithstanding the verdict merely because there was 

some evidence that supported its position. Instead, a court can 

grant a motion for judgment notwithstanding the verdict when 

the evidence would only allow a reasonable jury to find in 

favor of the moving party. See Valley Boys v. American Family 

Ins. Co., 306 Neb. 928, 947 N.W.2d 856 (2020). That is not 

the case here. While there was some evidence that supported 

West’s position, other evidence supported Marr’s.
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After Marr began reporting to Carlson, Marr was removed 

from several integration projects on which he had been working and assigned to work on divestitures. Marr testified at 

trial that working on integrations required him to understand 

the products, services, sales, marketing, employees, and technology of the acquired companies and develop strategies to 

integrate their operations into West’s. He testified that he had 

not previously worked on divestitures; that working on divestitures did not require him to make the same type of strategic 

decisions he had to make while working on integrations; and 

that after he was assigned to work on divestitures, individuals 

who were responsible for divestitures told him there was no 

work for him to do. Marr testified that he did not want to be 

assigned to divestitures, because it did not allow him to use the 

experience he had developed to help West succeed. Although 

there was evidence to support West’s contrary position, based 

on Marr’s testimony, the jury could have reasonably found that 

Marr’s duties and responsibilities were materially reduced after 

he was removed from several integrations and assigned to work 

on divestitures.

We believe a reasonable jury also could have concluded that 

Marr’s reporting obligations were adversely and materially 

changed after Mortenson departed and he began reporting to 

Carlson. Mortenson was an executive vice president at West; 

Carlson was a vice president. Marr testified that as a vice president, Carlson was actually lower in West’s corporate structure 

than Marr was as a senior vice president. Marr also testified 

that once he began reporting to Carlson, he no longer reported 

through West’s operations department as he had during his 

career, but reported through West’s finance department despite 

his lack of a finance degree and never having worked in the 

finance department. Finally, Marr also testified that the people 

to whom he reported in the finance department did not work 

in Omaha and that he believed this would have an adverse 

effect on his ability to advance in a new department. Based on 

this evidence, the jury could have reasonably concluded that 
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Marr’s reporting obligations were adversely changed when he 

began reporting to Carlson.

(b) Good Reason Resignation 

Under Stock Agreement

West also argues that the jury could not reasonably have 

concluded that Marr could resign for good reason under the 

Stock Agreement. Under the Stock Agreement, Marr could 

resign for good reason if there was a change in control of the 

organization and either a material reduction of his position, 

duties, or responsibilities in effect during the 90 days prior to 

the change in control or an adverse material change in Marr’s 

reporting responsibilities, titles, or offices that were in effect 

immediately prior to the change in control.

The jury could have reasonably found that Marr was eligible to resign for good reason under the Stock Agreement. 

West does not dispute that a change in control took place in 

October 2017 when a New York company purchased West. 

In addition, we believe the jury could have reasonably found 

when Marr started reporting to Carlson, there was an adverse 

material change in Marr’s reporting responsibilities from what 

they were immediately prior to the change in control. There 

was evidence admitted at trial that before the change in control, 

Marr was not reporting through the finance department, not 

reporting to individuals outside of Omaha, and not reporting to 

a person lower in West’s corporate structure, as he was after he 

began reporting to Carlson. And because the Stock Agreement 

provided that Marr could resign for good reason based upon a 

material reduction in his duties or an adverse material change 

to his reporting responsibilities, it is not necessary for us to 

consider whether the jury could also have found that there 

was a material reduction in Marr’s duties after the change 

in control.

(c) Marr’s Actual Reason for Resignation

Next, West argues that the district court should have granted 

its motion for judgment notwithstanding the verdict, because 
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the jury could only have reasonably concluded that Marr did 

not actually resign for a good reason. Here, West contends that 

the evidence shows that Marr’s motivation for resigning from 

West was not a reduction in his duties or an adverse change in 

his reporting responsibilities, but, rather, his decision to pursue 

and accept employment with FNTS. West claims that if Marr’s 

stated reasons were pretextual, he did not resign for good reason under the agreements. Marr argues otherwise, contending 

that the agreements gave him the right to receive the compensation at issue if he resigned after the occurrence of the events 

identified in the agreements and that his subjective reasons for 

resigning are irrelevant.

It is not clear to us that Marr’s right to resign for good 

reason under either the Employment Agreement or the Stock 

Agreement depended on his motivation for resigning. We find, 

however, that we need not resolve that question. Even if we 

assume that Marr’s subjective motivation was relevant, we find 

that West was not entitled to judgment notwithstanding the verdict. Marr testified that he did not want to leave West and that 

even after he sent the email to Carlson on May 21, 2018, he 

hoped that West could find him a role within the company that 

allowed him to use the expertise he had developed there. Marr 

further testified that if West had found such a role for him, he 

would have stayed.

West points to the evidence of Marr’s efforts in pursuing 

and accepting a job at FNTS and argues that “it is blatantly 

apparent that [Marr] was not actually asking West to cure the 

perceived adverse changes to his role identified in his resignation notice” but that his true motivation was “to increase his 

severance compensation by hundreds of thousands of dollars 

as he transitioned into his new position with [FNTS].” Brief 

for appellant at 20. West appears to contend that given his 

pursuit and acceptance of a job at FNTS, Marr’s testimony that 

he would have stayed at West if it had addressed the issues 

he raised regarding his duties and reporting obligations is not 

credible. West cannot, however, challenge the credibility of 
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Marr’s testimony through a motion for judgment notwithstanding the verdict.

In a motion for judgment notwithstanding the verdict, the 

moving party is deemed to have admitted as true all the relevant evidence admitted that is favorable to the party against 

whom the motion is directed. See Valley Boys v. American 

Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856 (2020). Marr’s 

testimony that he would have stayed at West if it had addressed 

his concerns was favorable to Marr and thus must be treated as 

true for purposes of West’s motion for judgment notwithstanding the verdict. This testimony, if believed, provided a basis 

upon which a reasonable jury could have concluded that Marr 

resigned because of the changes to his duties and responsibilities and reporting obligations at West.

(d) Notice Under Employment Agreement

West next argues that it was entitled to judgment notwithstanding the verdict, because Marr failed to comply with the 

notice provisions of the Employment Agreement. Again, we 

are not persuaded.

West argues that Marr’s May 21, 2018, email to Carlson 

was a “bare bones resignation notice that failed to adequately 

identify the alleged bases of his Good Reason claim.” Brief for 

appellant at 23. We disagree that Marr’s email failed to provide adequate notice as a matter of law. Marr’s email informed 

Carlson that he believed his duties and responsibilities and 

reporting obligations had been adversely changed. The email 

also provided notice that Marr believed that was the case as 

a result of changes that had taken place in the last few weeks 

within the “Integration Management Organization structure 

and operating model.” Marr’s email did not provide exhaustive 

detail as to why he believed the recent changes had reduced his 

duties and adversely altered his reporting obligations, but the 

Employment Agreement does not specify that Marr was obligated to provide exhaustive detail.
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(e) Notice Under Stock Agreement

Finally, West argues that it was entitled to judgment notwithstanding the verdict, because Marr provided inadequate notice 

under the Stock Agreement. West argues that Marr failed to 

provide any written notice under the Stock Agreement and that 

even if he did provide such notice, it was not provided within 

90 days after he had knowledge of the factual basis for his 

claim that he could resign for good reason. We find these arguments meritless as well.

We disagree that Marr failed to comply with the notice provision of the Stock Agreement as a matter of law. Although 

his May 21, 2018, email to Carlson did not expressly mention 

the Stock Agreement, Marr did inform Carlson in the email 

that Marr believed the recent changes at West had resulted 

in a material reduction in his duties and responsibilities, as 

well as an adverse change in his reporting obligations. Marr 

thereby provided notice of the occurrence of events which 

the Stock Agreement listed as grounds for a good reason 

resignation, which is what the notice provision of the Stock 

Agreement required.

We also disagree with West’s argument that the jury could 

not have reasonably concluded that Marr provided notice within 

90 days after he had knowledge of the basis for his claim that 

he could resign for good reason under the Stock Agreement. 

We find that the jury could have reasonably concluded that 

Marr first had knowledge of the basis for his claim that his 

reporting obligations had been adversely changed from what 

they were prior to the change in control when he began reporting to Carlson in April 2018.

2. Motion for New Trial

As an alternative to its argument that the district court 

should have granted its motion for judgment notwithstanding 

the verdict, West argues that the district court erred by denying its motion for a new trial. West contends that the district 

court should have granted it a new trial because it made several 
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erroneous evidentiary rulings that prejudiced West. In the sections below, we consider West’s arguments as to each of these 

evidentiary rulings.

(a) Exclusion of Some of Marr’s 

Communication With FNTS

West first argues that the district court erred by excluding 

on relevancy and hearsay grounds various exhibits regarding 

Marr’s application for and eventual acceptance of a position 

at FNTS. The district court sustained Marr’s objections to 

the admission of a job application Marr submitted to FNTS 

in January 2018 in which he indicated he would be available to start work on February 12. It also sustained Marr’s 

objections to various emails in which Marr scheduled and 

discussed job interviews with representatives of FNTS, an 

email in which a representative of West updated Marr on the 

status of his application, and emails in which FNTS offered 

Marr the position and Marr accepted. During a discussion 

with counsel explaining the basis for excluding exhibits on 

hearsay grounds, the district court stated that it was its view 

that “none of these scheduling matters constitutes statements 

against any interest.”

[5,6] We find it unnecessary to determine whether the district court erred by excluding this evidence. In a civil case, 

the admission or exclusion of evidence is not reversible error 

unless it unfairly prejudiced a substantial right of the complaining party. Steinhausen v. HomeServices of Neb., 289 Neb. 

927, 857 N.W.2d 816 (2015). The exclusion of evidence is 

ordinarily not prejudicial where substantially similar evidence 

is admitted without objection. Id. In particular, where the information contained in an exhibit is, for the most part, already in 

evidence from the testimony of witnesses, the exclusion of the 

exhibit is not prejudicial. Id. As we will explain, under these 

principles, we do not believe the exclusion of the evidence 

regarding Marr’s pursuit of a job at FNTS, even if erroneous, 

would amount to reversible error.
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Although the district court sustained Marr’s objections to 

certain exhibits showing that Marr pursued and accepted a job 

at FNTS, other evidence of the same was admitted. In particular, evidence was admitted that Marr applied for the chief 

technology officer position at FNTS in January 2018; that he 

completed many interviews with FNTS personnel regarding 

that position in February, March, and April; that he thereafter 

negotiated with FNTS regarding employment terms for the 

position; that FNTS offered him the position on May 18; that 

he communicated his acceptance on May 20 and informed 

FNTS he would resign from West in the next few days; and 

that after accepting the job, he informed FNTS he intended to 

start on June 25, completed preemployment screening and drug 

testing, and arranged for parking at FNTS.

We do not believe the exhibits the district court excluded 

contained any information material to Marr’s pursuit of a job at 

FNTS that the jury did not receive through other evidence. The 

jury received evidence that even before Marr began reporting 

to Carlson, he was pursuing employment outside of West. It 

also received evidence that Marr accepted the position at FNTS 

shortly before he emailed Carlson about his intent to resign 

from West and that he took steps to begin employment at 

FNTS even after giving West the opportunity to cure the issues 

he raised regarding his position at West. Because the jury 

received evidence that was substantially similar to the excluded 

exhibits, West’s substantial rights were not unfairly prejudiced. 

See Steinhausen, supra.

West also contends that it was prejudiced by the district 

court’s explanation of its hearsay ruling that it did not consider 

“these scheduling matters” to be “statements against any interest.” It contends that this comment was made in front of the 

jury and would have led the jury to believe that in the district 

court’s view, Marr’s pursuit of a job at FNTS was irrelevant 

to whether he resigned for good reason under the agreements. We disagree that the district court’s comment prejudiced 

West. The district court’s comment was limited to “scheduling 
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matters,” a great deal of evidence regarding Marr’s pursuit of 

a job at FNTS was received into evidence, and the jury was 

instructed that it was not to consider the reasons for the district 

court’s evidentiary rulings.

(b) Admission of Evidence of 

Residence of West Executives

West next argues that the district court erred by allowing 

Marr to elicit testimony that several members of West’s executive team lived and worked outside of Omaha. West argues that 

the residence and working location of West’s executives was 

irrelevant and was introduced “solely in order to inflame the 

Omaha jury’s animus towards West’s New York-based owners.” Brief for appellant at 31. Marr counters that the evidence 

was relevant to the question of whether his reporting responsibilities at West had been adversely changed. He testified at 

trial and argues now that not being able to work directly with 

individuals to whom he reported negatively impacted his standing within West.

[7] Again, we find it unnecessary to determine whether the 

district court’s evidentiary ruling was erroneous, because even 

assuming it was, no prejudicial error resulted. Although West 

made relevance objections when Carlson was asked on crossexamination where a few members of West’s executive team 

lived and worked, it did not object when he was asked the 

same question about several other West executives. Neither did 

West object when testimony was elicited from other witnesses 

that certain West executives did not live and work in Omaha. 

Testimony objected to which is substantially similar to evidence admitted without objection results in no prejudicial error. 

Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 

N.W.2d 750 (1997).

(c) Admission of Evidence of Carlson’s Age

West also argues that the district court abused its discretion by overruling West’s relevance objection when Marr 
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asked Carlson about his age. Carlson testified that he was 28 

years old. West argues that Carlson’s age was not relevant 

to whether Marr’s reporting responsibilities were adversely 

changed when he began reporting to Carlson.

[8,9] Although evidence that is irrelevant is inadmissible, 

Neb. Rev. Stat. § 27-402 (Reissue 2016), the bar for establishing evidentiary relevance is not a high one. See Lindsay 

Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 

133 (2018). Evidence is relevant if it has “any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than 

it would be without the evidence.” Neb. Rev. Stat. § 27-401 

(Reissue 2016). To be relevant, the probative value of evidence need only be “something more than nothing.” State v. 

Lavalleur, 289 Neb. 102, 115, 853 N.W.2d 203, 214 (2014). 

Furthermore, we have recognized that the exercise of judicial 

discretion is implicit in determining the relevance of evidence, 

and therefore a trial court’s decision regarding relevance will 

not be reversed absent an abuse of discretion. See Richardson v. 

Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).

We do not believe the district court abused its discretion by concluding that evidence of Carlson’s age cleared the 

relatively low relevance threshold. Carlson was asked his age 

immediately before testimony was elicited from him, without 

objection, that he graduated from college in 2013 and about 

his subsequent employment history. In our view, it is not 

unreasonable to conclude that the fact that Marr was reporting to someone who—because of his relatively young age and 

relatively recent completion of his college education—likely 

did not have extensive experience has at least some tendency to 

suggest that Marr’s reporting responsibilities had been materially altered. We acknowledge the probative value of Carlson’s 

age may have been slight, but neither do we believe the district 

court abused its discretion by finding that it had some probative 

value. We therefore find that the district court did not abuse its 

discretion in overruling West’s objection.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MARR v. WEST CORPORATION

Cite as 310 Neb. 21

Because West has not demonstrated any prejudicial error in 

the district court’s evidentiary rulings and its argument that it 

was entitled to a new trial depends wholly on the existence of 

such error, we find that the district court did not abuse its discretion in overruling West’s motion for a new trial.

3. Marr’s Request for Attorney 

Fees and Costs

Before concluding, we note that Marr argues in his brief that 

West’s appeal is frivolous and that he should therefore receive 

an award of attorney fees and costs under Neb. Rev. Stat. 

§ 25-824(2) (Reissue 2016). Our rules of appellate procedure 

require those seeking the award of such relief to file a motion 

supported by an affidavit justifying the amount sought “no later 

than 10 days after the release of the opinion of the court or the 

entry of the order of the court disposing of the appeal, unless 

otherwise provided by statute.” Neb. Ct. R. App. P. § 2-109(F) 

(rev. 2021). If Marr wishes to pursue an award of attorney 

fees and costs under § 25-824(2), he may file such a motion in 

accordance with the rule set forth above.

V. CONCLUSION

Because we find no reversible error on the part of the district court, we affirm.

Affirmed.