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PIERCE v. LANDMARK MGMT. GROUP

Cite as 293 Neb. 890

Sybille Pierce, appellee, v. 

Landmark Management Group, 

Inc., et al., appellants.

___ N.W.2d ___

Filed June 24, 2016. No. S-14-867.

1. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

2. Trial: Appeal and Error. A general assignment that the court erroneously overruled objections, without supporting argument as to why the 

rulings were erroneous or how they resulted in prejudice, is insufficient 

to preserve the issue for appellate review.

3. Records: Appeal and Error. It is incumbent upon the appellant to 

present a record supporting the errors assigned; absent such a record, 

an appellate court will affirm the lower court’s decision regarding 

those errors.

4. ____: ____. Rulings of the trial court which do not appear in the record 

are not considered on appeal.

5. Motions for New Trial: Damages: Appeal and Error. A motion for 

new trial is a prerequisite to obtaining appellate review of the issue of 

excessive damages.

6. Employer and Employee: Federal Acts. Employers are covered by the 

Family and Medical Leave Act of 1993 when they employ 50 or more 

employees for each working day during each of 20 or more calendar 

workweeks in the current or preceding calendar year.

7. ____: ____. Separate entities are deemed to be a single employer for 

purposes of the Family and Medical Leave Act of 1993 if they meet the 

integrated employer test.

8. ____: ____. When the integrated employer test is met, the employees of 

all entities making up the integrated employer are counted to determine 

employer coverage under the Family and Medical Leave Act of 1993.

9. Administrative Law: Employer and Employee: Federal Acts. The 

regulations promulgated by the U.S. Department of Labor interpreting 

Nebraska Supreme Court Online Library

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

06/24/2016 08:10 AM CDT
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the Family and Medical Leave Act of 1993 establish the test for determining whether legally distinct companies may be considered so interrelated that they constitute a single employer for purposes of the act.

10. Employer and Employee. The integrated employer test involves consideration of four factors: (1) common management, (2) interrelation 

between operations, (3) centralized control of labor operations, and (4) 

degree of common ownership/financial control.

11. ____. Under the integrated employer test, whether separate entities 

are sufficiently integrated is not determined by any single factor, but, 

rather, the entire relationship between the entities is to be reviewed in 

its totality.

12. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings 

and admitted evidence show that there is no genuine issue as to any 

material facts or as to the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

13. ____: ____. In reviewing a summary judgment, the court views the 

evidence in the light most favorable to the party against whom the 

judgment was granted and gives such party the benefit of all reasonable 

inferences deducible from the evidence.

14. Trial: Juries: Evidence. Where the facts are undisputed or are such that 

reasonable minds can draw but one conclusion therefrom, it is the duty 

of the trial court to decide the question as a matter of law rather than 

submit it to the jury for determination.

15. Summary Judgment: Evidence: Proof. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were 

uncontroverted at trial. The burden of producing evidence then shifts to 

the party opposing the motion, who must present evidence showing the 

existence of a material fact that prevents summary judgment as a matter 

of law.

16. Summary Judgment. If the movant for summary judgment establishes 

a material fact, and that fact is not contradicted by the adverse party, the 

court will determine that there is no issue as to that fact.

17. ____. Mere formal denials or general allegations which do not show the 

facts in detail and with precision are insufficient to prevent an award of 

summary judgment.

18. Summary Judgment: Affidavits. A party may not create an issue of 

fact at the summary judgment stage by submitting an affidavit that contradicts his or her earlier testimony.

19. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 
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discretion is involved only when the rules make discretion a factor in 

determining admissibility.

20. Rules of Evidence: Appeal and Error. When the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

21. 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.

22. Employment Security. Under Nebraska law, unemployment compensation benefits are not a collateral source, because they are funded by 

employer contributions. Generally, such benefits should be deducted 

from a backpay award in employment cases.

23. Appeal and Error. A lower court cannot commit error in resolving an 

issue never presented and submitted to it for disposition.

24. Rules of Evidence: Witnesses: Other Acts. The trial court has discretion, pursuant to Neb. Evid. R. 608(2)(a), Neb. Rev. Stat. § 27-608(2)(a) 

(Reissue 2008), to admit evidence of prior conduct to impeach a witness’ credibility, so long as the evidence is probative of the witness’ 

character for truthfulness.

25. Rules of Evidence: Taxes. Where evidence of omissions or inaccuracies on tax returns does not necessarily suggest dishonesty, such 

evidence is generally too tenuous to be probative of truthfulness or 

untruthfulness.

26. ____: ____. Evidence that a witness did not report certain income on his 

or her tax returns, without more, is not sufficiently probative of character for truthfulness or untruthfulness to be admissible under Neb. Evid. 

R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008).

27. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the 

evidence most favorably to the successful party and resolves evidential 

conflicts in favor of such party, who is entitled to every reasonable 

inference deducible from the evidence.

28. Trial: Evidence: Witnesses: Juries: Appeal and Error. All conflicts in 

the evidence, expert or lay, and the credibility of the witnesses are for 

the jury and not for the appellate court.

29. Federal Acts: Attorney Fees. Under the Family and Medical Leave 

Act of 1993 and the ADA Amendments Act of 2008, the prevailing 

party is entitled to an award of reasonable attorney fees.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed.
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Molly Adair-Pearson, of Adair Pearson Law, for appellants.

Craig F. Martin, Sarah F. Macdissi, and Sarah M. Smith, of 

Lamson, Dugan & Murray, L.L.P., for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel, and Stacy, JJ.

Stacy, J.

I. NATURE OF CASE

Sybille Pierce sued her former employers claiming she was 

terminated in violation of the Family and Medical Leave Act 

of 1993 (FMLA)1 and the ADA Amendments Act of 2008 

(ADAAA).2 The trial court granted partial summary judgment 

in favor of Pierce on the issue of whether the employers were 

“integrated” and met the threshold number of employees to 

be covered by the FMLA. The case was then tried to a jury, 

which returned a verdict for Pierce on both the FMLA and the 

ADAAA claims. The employers timely appealed. Finding no 

reversible error, we affirm.

II. FACTS

1. Pierce Work History

From 2004 through 2011, Pierce worked for two companies, 

both of which were owned by David Paladino. From 2004 

through 2008, Pierce was the operations manager for Landmark 

Management Group, Inc. (Landmark), a property management 

business. From 2008 to 2009, Pierce managed a storage facility 

for Cornhusker Road LLC, doing business as Dino’s Storage 

(Dino’s Storage). While managing the storage facility, Pierce 

also rented moving trucks to customers, but it is unclear from 

the record whether the truck rental business was operated at the 

time through Dino’s Storage or through another of Paladino’s 

companies, Dodge Street, LLC. From 2009 until February 22, 

1 29 U.S.C. § 2601 et seq. (2012).

2 42 U.S.C. § 12101 et seq. (2012).
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2011, Pierce worked as a legal assistant for Landmark and also 

continued renting moving trucks. During this period, she was 

paid by Landmark for her work as a legal assistant and was 

paid by Dino’s Storage for her work renting trucks.

In 2010, Pierce was diagnosed with “Idiopathic 

Thrombocytopenic Purpura,” which is a blood disorder that 

causes abnormally low platelet counts and predisposes patients 

to a high risk of spontaneous bleeding. Pierce’s treatment 

included steroid injections, intravenous immunoglobin infusions, and eventually a splenectomy surgery in November 

2010, for which she took paid vacation time. After recovering from surgery, Pierce returned to work at Landmark and 

Dino’s Storage.

In January 2011, Pierce’s condition worsened and her doctor recommended 4 weeks of infusion treatment using a 

chemotherapy drug. After her first chemotherapy treatment, 

Pierce sent her supervisor, Mary Anderson, an e-mail describing her reaction to the treatment. In the e-mail, Pierce advised 

Anderson she was going to talk with her doctor about whether 

she should take “medical leave” while undergoing the treatment. In reply to Pierce’s e-mail, Anderson wrote: “We would 

like you to come back when you are able to be here every 

day and give 100% and not miss any days in the foreseeable 

future.” To this, Pierce replied: “[O]k. I just want to make 

sure I understand correctly. You want me to take off from 

now until this treatment is over, which would be sometime in 

February. And you would hold my position for me until then.” 

Anderson responded: “Yes, we want you to take the time off 

and when you are able to come back at 100% you will have 

a job.” The following morning, Anderson sent an e-mail to 

a group of Landmark and Dino’s Storage recipients advising, “FYI, [Pierce] is taking a medical leave until sometime 

in February.”

By mid-February 2011, Pierce had finished her treatment 

and her blood disorder was in remission. On February 21, 

Pierce called Anderson and advised she was ready to return to 
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work. The next day, Pierce had a meeting with Paladino and 

Anderson. The parties do not dispute that during this meeting, 

Pierce was told her former position had been filled. However, 

the parties disagree about whether Pierce was offered another 

position during the meeting. They also disagree about whether 

Pierce quit her employment or was terminated.

According to Pierce, during the meeting, they discussed 

other possible jobs within the companies Paladino owned, 

but Paladino wanted assurances that Pierce’s condition would 

not result in significant absences. Pierce testified the meeting ended without any job offer; Paladino and Anderson told 

Pierce they wanted to talk things over and would call her later. 

According to Pierce, Anderson called her later the same evening to advise, “[Paladino] and I talked it over and we’re going 

to let you go.” The next day, Pierce’s immediate supervisor at 

Dino’s Storage sent an e-mail to other Dino’s employees which 

read: “I’m going to keep this short so I don’t say something I 

will regret. [Paladino] fired [Pierce] yesterday because she and 

her doctors couldn’t guarantee that her treatment will keep her 

permanently healthy.”

Paladino and Anderson denied terminating Pierce’s employment. According to both Paladino and Anderson, Pierce was 

offered two different positions during the meeting. Pierce told 

them she wanted to go home and speak with her husband about 

the job offers. Anderson testified that when she telephoned 

later that evening to follow up, Pierce turned down both 

job offers.

Pierce sued Landmark, Dino’s Storage, and Dodge Street, 

claiming she had been unlawfully terminated. We refer to these 

entities collectively as “the employers.”

2. The Employers

Landmark is a third-party management company. It is owned 

by Paladino, and it manages various storage facilities, many 

of which are also owned by Paladino. Landmark has separate management agreements with each of the storage facilities. Maintenance employees of Landmark generally report 
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to Landmark’s main office at 2702 Douglas Street in Omaha, 

Nebraska, and from there, they are dispatched to the various 

storage facilities. The parties stipulated that at all relevant 

times, Landmark had 38 employees.

Dino’s Storage operates a storage facility in Omaha. Dino’s 

Storage is a trade name used by the storage facility; the actual 

entity is Cornhusker Road, and Paladino is the controlling 

shareholder. Dino’s Storage operates out of the same space as 

does Landmark—2702 Douglas Street in Omaha. The parties 

stipulated that Dino’s Storage had 17 employees at all relevant times.

Dodge Street owns the property at 2702 Douglas Street out 

of which Landmark and Dino’s Storage operate. Paladino is 

also a shareholder of Dodge Street. According to Paladino, 

“[t]he primary role of Dodge Street, LLC, is [to] own and 

operate [the] storage facility.” The parties stipulated that Dodge 

Street had no employees during the relevant time period. The 

role of Dodge Street in Pierce’s claims is not entirely clear 

from the record, but no party suggests any error associated 

with its inclusion in this lawsuit.

3. Procedural History

(a) Lawsuit

Pierce filed an employment discrimination suit in the district 

court for Douglas County, alleging violations of the FMLA, 

the ADAAA, and the Nebraska Fair Employment Practice Act.3

Only the FMLA and the ADAAA claims proceeded to trial.

In connection with the FMLA claim, Pierce claimed the 

employers were “integrated” for purposes of meeting the 

FMLA employee numerosity requirement,4 alleging:

[T]he [employers] share a common owner, . . . Paladino; 

[the employers] operate out of shared office space located 

at 2702 Douglas Street, Omaha, NE 68131; all billing 

3 Neb. Rev. Stat. § 48-1101 et seq. (Reissue 2010).

4 See 29 U.S.C § 2611(4)(A)(i).
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and accounting for the [employers] is run out of the same 

office space located at 2702 Douglas Street; and [the 

employers] share common employees, including common 

maintenance, information technology, and bookkeeping 

employees. In addition . . . Pierce was employed by both 

Landmark and Dino’s.

In their answer, the employers generally denied the allegations 

in Pierce’s complaint and raised the affirmative defense that 

Pierce failed to mitigate her damages.

(b) Summary Judgment

Pierce moved for partial summary judgment, asking the court 

to find as a matter of law that the employers were integrated 

for purposes of the FMLA. The district court granted summary 

judgment in favor of Pierce, finding “there is no genuine issue 

of material fact as to the [employers’] being integrated . . . for 

purposes of the [FMLA].”

(c) Motions in Limine

Before trial, Pierce filed three motions in limine. The first 

motion sought to exclude evidence that Pierce had received 

unemployment compensation benefits after leaving Landmark’s 

employ. The second motion sought to exclude evidence that 

Pierce did not report, on her state and federal tax returns, 

income she earned working as a nanny. The third motion sought 

to exclude an undated, unsigned, handwritten note the employers planned to offer in support of their claim that Pierce was 

offered, and refused, alternative positions with the employers. 

The trial court sustained all three of Pierce’s motions in limine, 

over the employers’ objection. At trial, the employers were not 

permitted to offer the excluded evidence, but made detailed 

offers of proof outside the jury’s presence.

(d) Jury Trial and Posttrial Motions

Following a 3-day trial, the jury returned a verdict for Pierce 

and awarded damages on both the FMLA and the ADAAA 

claims. Pierce then filed a motion seeking liquidated damages 
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under the FMLA in an amount equal to the amount of compensatory damages awarded by the jury.5

 The district court granted 

Pierce’s motion and entered judgment for Pierce on the FMLA 

claim in the amount of $19,281.36 in backpay, $19,281.36 in 

liquidated damages, and prejudgment interest at the statutory 

rate. On the ADAAA claim, judgment was entered for Pierce 

in the amount of $2,500 in “Other” damages and $28,537.63 in 

punitive damages.

Pierce then moved for an award of attorney fees and costs 

under both the FMLA and the ADAAA.6 The court awarded 

her $67,979.70 in attorney fees and $2,054.95 in costs.

Thereafter, the employers apparently filed a motion for new 

trial which included a request that the trial judge recuse himself. The record shows a hearing was held on the motion, but 

neither the employers’ motion nor the court’s order ruling on it 

appear in the record.

The employers filed this appeal, and we moved the case 

to our docket on our own motion pursuant to our statutory 

authority to regulate the caseloads of the appellate courts of 

this state.7

III. ASSIGNMENTS OF ERROR

The employers assign, rephrased, that the trial court erred 

in (1) granting partial summary judgment on the integrated 

employer issue, (2) excluding evidence that Pierce received 

unemployment benefits, (3) excluding evidence that Pierce 

did not report nanny income on her tax returns, (4) excluding the unsigned handwritten note, (5) admitting testimony 

and exhibits which lacked foundation and contained hearsay, 

(6) refusing to give certain jury instructions requested by the 

employers, (7) entering judgment on a verdict which was not 

supported by sufficient evidence, (8) entering judgment on 

a verdict which awarded excessive damages, (9) awarding 

5 See 29 U.S.C. 2617(a)(1)(A)(iii).

6 See 29 U.S.C. § 2617(a)(3) and 42 U.S.C. § 12205.

7 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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excessive attorney fees, and (10) overruling the employers’ 

motion for new trial.

IV. ANALYSIS

1. Matters Properly Before Us

[1,2] Four of the employers’ assignments of error are not 

properly presented for appellate review. First, the employers 

broadly assign that “[t]he trial court erred in overruling [the 

employers’] objections and allowing testimony and receiving 

exhibits containing hearsay and lacking in foundation.” Their 

brief identifies 17 separate rulings relating to this assignment of error, but other than referencing the page and line of 

the rulings, the brief presents no argument. An alleged error 

must be both specifically assigned and specifically argued in 

the brief of the party asserting the error to be considered by 

an appellate court.8 A general assignment that the court erroneously overruled objections, without supporting argument 

as to why the rulings were erroneous or how they resulted 

in prejudice, is insufficient to preserve the issue for appellate review.9

[3] The employers also assign that “[t]he trial court erred 

in refusing to give certain jury instructions requested by [the 

employers].” Neither the instructions given by the court nor 

those proposed by the parties were included in the record on 

appeal. Although the jury instruction conference was included 

in the bill of exceptions, we cannot glean from the discussion 

therein the full text of the instructions given or those proposed and rejected. As a general proposition, it is incumbent 

upon the appellant to present a record supporting the errors 

assigned; absent such a record, an appellate court will affirm 

the lower court’s decision regarding those errors.10 Here, the 

8 See Stekr v. Beecham, 291 Neb. 883, 869 N.W.2d 347 (2015).

9 See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 

N.W.2d 406 (2008).

10 Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013); 

InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
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record is insufficient to support any assigned error regarding 

the jury instructions.

[4,5] Finally, the employers assign that the trial court erred 

in overruling their motion for new trial, which included a 

request to recuse the judge. Our appellate record includes the 

hearing on the motion but does not contain the motion itself 

or any order ruling on the same. Argument during the hearing indicates there was a question about the timelines of the 

motion. Rulings of the trial court which do not appear in the 

record are not considered on appeal.11 We conclude the record 

is insufficient to support the employers’ assignment related to 

the motion for new trial. And because a motion for new trial 

is a prerequisite to obtaining appellate review of the issue of 

excessive damages,12 we likewise conclude the employers’ 

assignment of error relating to excessive damages is not properly before us.

2. Integrated Employer Under FMLA

[6-8] Employers are covered by the FMLA when they 

employ 50 or more employees for each working day during 

each of 20 or more calendar workweeks in the current or preceding calendar year.13 Separate entities are deemed to be a 

single employer for purposes of the FMLA “if they meet the 

integrated employer test.”14 When the integrated employer test 

is met, the employees of all entities making up the integrated 

employer are counted to determine employer coverage under 

the FMLA.15

11 Durkan v. Vaughan, 259 Neb. 288, 609 N.W.2d 358 (2000).

12 See Neb. Rev. Stat. § 25-1912.01(2) (Reissue 2008) (stating that “[w]hen 

an action has been tried before a jury . . . a motion for a new trial shall be 

a prerequisite to obtaining appellate review of the issue of inadequate or 

excessive damages”).

13 29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104(a) (2015).

14 29 C.F.R. § 825.104(c)(2).

15 Id.
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The parties stipulated that during the relevant period, 

Landmark had 38 qualifying employees, Dino’s Storage had 

17 qualifying employees, and Dodge Street had no employees. 

Therefore, the FMLA’s numerosity requirement is met only if 

Landmark and Dino’s Storage are deemed to be integrated for 

purposes of the FMLA.

[9,10] The regulations promulgated by the U.S. Department 

of Labor interpreting the FMLA establish the test for determining whether legally distinct companies may be considered so 

interrelated that they constitute a single employer for purposes 

of the FMLA.16 This integrated employer test involves consideration of four factors: (1) common management, (2) interrelation between operations, (3) centralized control of labor 

operations, and (4) degree of common ownership/financial 

control.17 This test has been described as appreciating that 

“small businesses—i.e. those with less than 50 employees—are 

not subject to the FMLA’s ‘onerous requirement of keeping an 

unproductive employee on the payroll,’ while simultaneously 

preventing companies from structuring their business to avoid 

labor laws.”18 The same four-factor test is applied in other 

types of employment discrimination19 and labor cases.20

[11] The first factor focuses on the degree to which different 

entities share common management and includes consideration 

16 Id.

17 Id.

18 Grace v. USCAR, 521 F.3d 655, 664 (6th Cir. 2008), quoting Engelhardt v. 

S.P. Richards Co., Inc., 472 F.3d 1 (1st Cir. 2006).

19 See, e.g., Sandoval v. American Bldg. Maintenance Industries, 578 F.3d 

787 (8th Cir. 2009); Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th 

Cir. 1977); Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 

791 (2002).

20 See, e.g., Hall Cty. Pub. Defenders v. County of Hall, 253 Neb. 763, 571 

N.W.2d 789 (1998), disapproved on other grounds, Hyannis Ed. Assn. v. 

Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005);

American Fed. S., C., & M. Emp., AFL-CIO v. County of Lancaster, 196 

Neb. 89, 241 N.W.2d 523 (1976).
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of whether the same individuals manage or supervise the different entities and whether the entities have common officers and 

boards of directors.21 The second factor examines the interrelation of operations, including whether the entities share managers or personnel, payroll, insurance programs, office space, or 

equipment.22 The third factor, centralized control, examines 

the extent to which labor decisions involving the entities are 

centralized, including oversight of personnel and decisions of 

hiring, firing, and discipline.23 And the fourth factor, degree of 

common ownership or financial control, focuses on the extent 

to which entities share common owners, including whether one 

entity owns shares of the other.24 Whether separate entities are 

sufficiently integrated is not determined by any single factor, 

but, rather, the entire relationship between the entities is to be 

reviewed in its totality.25

The district court granted Pierce’s motion for partial summary judgment and found as a matter of law that the employers were “integrated” for purposes of the employee numerosity 

requirement of the FMLA. The employers assign this as error 

and argue there were material issues of fact which precluded 

summary judgment.

[12-15] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law.26 In reviewing a summary judgment, the court 

views the evidence in the light most favorable to the party 

21 Davis v. Ricketts, 765 F.3d 823 (8th Cir. 2014).

22 Id.

23 Id. See, also, Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir. 1993); Baker 

v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977).

24 Davis, supra note 21.

25 29 C.F.R. § 825.104(c)(2).

26 DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
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against whom the judgment was granted and gives such party 

the benefit of all reasonable inferences deducible from the 

evidence.27 Where the facts are undisputed or are such that reasonable minds can draw but one conclusion therefrom, it is the 

duty of the trial court to decide the question as a matter of law 

rather than submit it to the jury for determination.28 A movant 

for summary judgment makes a prima facie case by producing 

enough evidence to demonstrate that the movant is entitled 

to a judgment if the evidence were uncontroverted at trial. At 

that point, the burden of producing evidence shifts to the party 

opposing the motion,29 who must present evidence showing the 

existence of a material fact that prevents summary judgment as 

a matter of law.30

(a) Pierce’s Evidence on 

Summary Judgment

We begin our summary judgment analysis by considering 

whether Pierce produced enough evidence to make a prima 

facie case demonstrating she was entitled to judgment on 

the integrated employer issue if the evidence were uncontroverted at trial. In support of her summary judgment motion, 

Pierce offered her own affidavit, the deposition testimony of 

Anderson (the operations manager for Landmark), the deposition testimony of Paladino, and the employers’ written discovery responses.

Regarding the common management factor, this evidence 

showed that Paladino makes the high-level management decisions for both Landmark and Dino’s Storage. Paladino explained 

in his deposition that he has a manager who “handle[s] the 

Dino’s Storage side of the business” and another who “handles 

27 Id.

28 Sweem v. American Fidelity Life Assurance Co., 274 Neb. 313, 739 

N.W.2d 442 (2007).

29 Durkan, supra note 11.

30 See Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
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the Landmark part of the business,” but “a lot of it was directed 

by me [and] implemented by them.”

Regarding the interrelation of operations factor, this evidence showed significant interrelation between Landmark and 

Dino’s Storage. The two entities share office space and at 

least some personnel. According to Paladino’s deposition testimony, Landmark’s bookkeeper is also responsible for paying 

the bills, preparing reports, and handling bank deposits and 

reconciliation for Dino’s Storage. The same project manager oversees construction projects for both Landmark and 

Dino’s Storage and reports directly to Paladino. One individual works as the “IT guy” for both Landmark and Dino’s 

Storage. Paladino testified there is a common payroll process 

under which all Dino’s Storage employees report their hours 

to, and are paid through, Landmark. Paladino explained he 

uses the combined payroll system as a “way to save money,” 

because when each entity had its own payroll process “it 

was very, very expensive to do it that way . . . . When you 

start piling up those different entities, those fees add up.” 

Pursuant to management agreements between Landmark and 

Dino’s Storage, Landmark’s maintenance employees report 

to work at Landmark, and from there they are dispatched to 

various Dino’s Storage facilities to perform work as needed. 

Finally, this evidence showed Pierce worked simultaneously 

for Landmark and Dino’s Storage.

Regarding the centralized control of labor factor, the evidence contained many examples of centralized staffing and 

shared work processes between Landmark and Dino’s Storage. 

In addition to the common payroll process, the centralized 

accounting and bookkeeping process, and the centralized technical support about which Paladino testified, he testified to 

several examples of moving employees between entities to 

accommodate overall labor needs. Pursuant to a management 

agreement, Landmark’s maintenance employees are dispatched 

to perform a wide variety of work, including the maintenance 

of Dino’s Storage facilities. But the evidence of centralized 
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labor decisions between Landmark and Dino’s Storage went 

beyond the management agreements. For instance, Paladino 

moved an employee from Landmark (where she made deposits for storage facilities and audited sales files) and “put her 

in charge of one of the storage facilities,” after which he 

“changed her role” again so “she was doing a little bit of work 

for Landmark.” And Pierce was hired to work initially for 

Landmark, was then moved to work as a manager for Dino’s 

Storage, and then was moved back to Landmark while simultaneously working part time for Dino’s Storage. Paladino’s 

active role in personnel decisions involving Landmark and 

Dino’s Storage is also evidenced by his deposition testimony 

that he was the one to hire Pierce, the one to move her between 

Landmark and Dino’s Storage, and the one to offer her other 

positions when she was ready to return to work.

Finally, regarding the common ownership factor, the evidence was undisputed that Paladino owns 100 percent of 

Landmark and is the primary shareholder of Dino’s Storage.

Considering this evidence in its totality, we conclude Pierce 

made a prima facie case that the employers were integrated 

under the four-factor test. The evidence Pierce produced was 

sufficient to demonstrate she would prevail on this issue if the 

evidence were uncontroverted at trial. The burden to produce 

evidence showing a genuine issue of fact shifted to the parties opposing the motion,31 and we now consider the evidence 

adduced by the employers in response.

(b) The Employers’ Evidence 

on Summary Judgment

At the summary judgment hearing, the employers submitted 

only the affidavit of Paladino. Paladino averred generally that 

Landmark, Dino’s Storage, and Dodge Street “are all separate 

entities with different operations and lines of business. Each 

company has separate bookkeeping, separate employees, and 

separate policies.” We examine these statements to determine 

31 See Durkan, supra note 11.
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whether they created a genuine issue of material fact. In doing 

so, we are guided by familiar principles.

[16,17] If the movant for summary judgment establishes a 

material fact, and that fact is not contradicted by the adverse 

party, the court will determine that there is no issue as to that 

fact.32 Mere formal denials or general allegations which do not 

show the facts in detail and with precision are insufficient to 

prevent an award of summary judgment.33

[18] The affidavit submitted by Paladino did not create any 

issue of material fact regarding whether the employers were 

integrated. Paladino’s conclusions that Landmark and Dino’s 

Storage had “separate bookkeeping” and “separate employees” were unsupported by any facts in the affidavit and were 

inconsistent with his earlier deposition testimony about shared 

bookkeeping and shared employees. A party may not create an 

issue of fact at the summary judgment stage by submitting an 

affidavit that contradicts his or her earlier testimony.34

As it regarded the material issue of whether the employers 

were integrated, Paladino’s affidavit consisted of little more 

than conclusions and did not create an issue of fact. As such, 

the employers failed to meet their burden of presenting evidence showing the existence of a material issue of fact preventing summary judgment.

On this record, we conclude the trial court did not err in 

granting partial summary judgment and finding as a matter 

of law that the employers are integrated for purposes of the 

FMLA. In light of this conclusion, it is unnecessary to address 

Pierce’s alternative argument that the employers are also “joint 

employers” under the FMLA.35

32 See Battle Creek State Bank v. Preusker, 253 Neb. 502, 571 N.W.2d 294 

(1997).

33 See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).

34 See Popoalii v. Correctional Medical Services, 512 F.3d 488 (8th Cir. 

2008).

35 Brief for appellants at 24, citing 29 C.F.R. § 825.106 (2015).
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3. Rulings on Motions

in Limine

The employers assign error to the trial court’s rulings on 

Pierce’s motions in limine. We address each motion in limine 

separately, applying the following standards of review.

[19-21] 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 discretion a factor in determining admissibility.36 When the Nebraska 

Evidence Rules commit the evidentiary question at issue to 

the discretion of the trial court, an appellate court reviews the 

admissibility of evidence for an abuse of discretion.37 Because 

the exercise of judicial discretion is implicit in determinations of admissibility under Neb. Evid. R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2008), the trial court’s decision will not 

be reversed absent an abuse of discretion.38 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.39

(a) Unemployment Benefits

Pierce filed a motion in limine seeking to “exclude at trial 

any mention of or reference to the fact that [she] may have 

received unemployment benefits.” In support of excluding the 

evidence, Pierce primarily argued that evidence of unemployment benefits should be excluded under the collateral source 

rule, which provides generally that benefits received by a 

plaintiff from a source wholly independent of and collateral 

to the wrongdoer will not diminish the damages otherwise 

36 See Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015). 

37 R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 

(2011).

38 In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

39 See, id.; Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
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recoverable from the wrongdoer.40 Pierce also argued the evidence, even if relevant, should be excluded under § 27-403, 

because any probative value was substantially outweighed by 

the danger of unfair prejudice. After a hearing, the trial court 

granted the motion in limine without elaboration. During 

trial, the employers were not allowed to offer evidence of 

the amount of unemployment benefits Pierce received, but 

made an offer of proof indicating she had been paid a total 

of $7,615.30.

On appeal, the employers assign error only to the district 

court’s decision to prohibit the jury from hearing evidence of 

unemployment benefits. The employers argue that unemployment benefits are not a collateral source under Nebraska law 

and further argue that they were prejudiced by the exclusion of 

such evidence, because “the unemployment benefits received 

should have been deducted from the damages award.”41

[22] The employers are correct that under Nebraska law, 

unemployment compensation benefits are not considered a 

collateral source for purposes of damages in employment 

cases. In Airport Inn v. Nebraska Equal Opp. Comm.,

42 we 

held that unemployment compensation benefits are not a collateral source, because they are funded by employer contributions, and we concluded the district court was correct to 

deduct unemployment benefits from a backpay award under 

the Nebraska Fair Employment Practice Act. Several years 

later, in IBP, inc. v. Sands,

43 we reiterated and strengthened 

our holding in Airport Inn, stating broadly that “unemployment compensation awards should be deducted from any backpay award.”

40 Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273 

(2013).

41 Brief for appellants at 30.

42 Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 

727 (1984).

43 IBP, inc. v. Sands, 252 Neb. 573, 582, 563 N.W.2d 353, 359 (1997).
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Pierce directs us to cases from other jurisdictions which 

hold that unemployment benefits are a collateral source.44 She 

urges us to revisit our holdings in Airport Inn and IBP, inc. and 

either adopt the rationale of those courts which prohibit such 

deductions altogether45 or, alternatively, adopt the rationale of 

those courts which conclude the deduction of unemployment 

benefits from backpay awards is a matter properly left to the 

sound discretion of the trial court.46 While we acknowledge the 

split of authority on this issue, we see no principled reason in 

the present case to revisit our holdings in Airport Inn and IBP, 

inc. And because the issue is not presented on this record, we 

leave for another day consideration of whether deductions from 

backpay awards under our holdings in Airport Inn and IBP, inc.

are mandatory or discretionary.

In this appeal, the employers assign that the district court 

erred in prohibiting them from presenting evidence to the jury 

that Pierce received unemployment benefits. The employers 

generally equate this evidentiary ruling to a legal finding that 

they were not entitled to an offset from any backpay award due 

to Pierce’s receipt of unemployment benefits.

[23] But this is incorrect. The district court’s decision not 

to permit the jury to hear evidence of Pierce’s unemployment benefits did not determine whether the employers were 

entitled to an offset of those benefits under our holdings in 

Airport Inn and IBP, inc. Nor did the court’s evidentiary ruling 

44 See, Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160 (6th Cir. 

1996), amended on denial of rehearing 97 F.3d 833; Gaworski v. ITT 

Commercial Finance Corp., 17 F.3d 1104 (8th Cir. 1994); Craig v. Y & Y 

Snacks, Inc., 721 F.2d 77 (3d Cir. 1983).

45 See, e.g., Thurman, supra note 44; Gaworski, supra note 44; Craig, supra

note 44; Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549 (11th Cir. 1983); 

Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir. 1982).

46 See, e.g., Dailey v. Societe Generale, 108 F.3d 451 (2d Cir. 1997); Lussier 

v. Runyon, 50 F.3d 1103 (1st Cir. 1995); Cooper v. Asplundh Tree Expert 

Co., 836 F.2d 1544 (10th Cir. 1988); Hunter v. Allis-Chalmers Corp., 

Engine Div., 797 F.2d 1417 (7th Cir. 1986).
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preclude the employers from seeking such a deduction. To the 

contrary, once the jury awarded backpay, the employers could 

have asked the trial court to deduct as a matter of law the 

unemployment benefits Pierce received.47 Several postaward 

motions were filed in this case, including Pierce’s motion for 

liquidated damages in an amount equal to the jury’s award of 

compensatory damages under the FMLA. Yet, there is nothing in the record or the briefing which suggests the employers presented a posttrial motion of any sort asking the trial 

court to apply our holdings in Airport Inn and IBP, inc. and 

deduct Pierce’s unemployment compensation benefits from 

the jury’s backpay award. A lower court cannot commit error 

in resolving an issue never presented and submitted to it for 

disposition.48 We conclude the assignment of error relating 

to whether the jury should have been permitted to hear evidence of unemployment benefits did not properly preserve 

the issue the employers attempt to raise on appeal—the issue 

of whether a deduction from the jury’s award of backpay was 

legally appropriate.

To the extent the employers’ briefing can fairly be construed 

to suggest the trial court should have reduced the jury’s backpay award because it was excessive, the issue of excessive 

damages is not before us. As discussed previously, a motion 

for new trial is a prerequisite for a claim of excessive damages.49 Because no motion for new trial is properly before us, 

the prerequisite for obtaining appellate review of an excessive 

damages issue has not been met. This assignment of error does 

not require reversal.

47 See, e.g., Dailey, supra note 46 (after jury award of backpay, employer 

filed posttrial motion to deduct unemployment compensation benefits from 

backpay award).

48 See In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 

(2015).

49 See § 25-1912.01(2).
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(b) Nanny Income

Pierce filed a motion in limine seeking to exclude evidence 

that she did not include, on her state or federal income tax 

returns, earnings received from working as a nanny. In support 

of her motion, Pierce argued such evidence was not relevant 

and was more prejudicial than probative. The court sustained 

the motion and excluded the evidence. The employers assign 

this as error, arguing the evidence was probative of Pierce’s 

character for truthfulness or untruthfulness and should have 

been received pursuant to Neb. Evid. R. 608(2)(a), Neb. Rev. 

Stat. § 27-608(2)(a) (Reissue 2008).

Preliminarily, we note the jury heard considerable evidence 

regarding the money Pierce earned working as a nanny for 

various families. Evidence of these earnings was relevant to 

Pierce’s claim for backpay. Testimony was offered regarding the time periods during which Pierce worked as a nanny 

and the amount of money she was paid by each family, 

but the employers were not allowed to elicit testimony on 

cross-examination that Pierce had not reported the “nannying” income on her tax returns. During trial, the employers 

renewed their objection to the court’s ruling on the motion in 

limine and made an offer of proof that, if permitted to question Pierce on the issue, she would testify she “did not report 

any of the income she earned from working as a nanny on 

her state and federal income taxes.” On appeal, the employers argue it was prejudicial error to exclude such evidence 

because it was probative of Pierce’s character for truthfulness 

or untruthfulness.

[24] The trial court has discretion, pursuant to § 27-608(2)

(a), to admit evidence of prior conduct to impeach a witness’ 

credibility, so long as the evidence is probative of the witness’ 

character for truthfulness. Section 27-608(2) provides in relevant part:

Specific instances of conduct of a witness, for the purpose 

of attacking or supporting his credibility . . . may not 

be proved by extrinsic evidence. They may, however, in 
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the discretion of the court, if probative of truthfulness or 

untruthfulness be inquired into on cross-examination of 

the witness . . . .

The central question regarding this assignment of error, and 

one which we have not previously considered, is whether evidence that a witness did not report certain income on her tax 

returns is probative of her character for truthfulness or untruthfulness. Courts in other jurisdictions have reached different 

conclusions, depending on the facts.

[25] Generally, evidence that a witness has knowingly provided false information on tax filings is considered probative 

of the witness’ character for truthfulness or untruthfulness.50

Similarly, evidence that a witness intentionally failed to pay 

taxes at all, particularly for multiple years, is often considered 

probative of the witness’ character for truthfulness.51 But where 

evidence of omissions or inaccuracies on tax returns does not 

necessarily suggest dishonesty, such evidence is generally too 

tenuous to be probative of truthfulness or untruthfulness.52 As 

the Eighth Circuit has observed, not every civil tax problem is 

indicative of a lack of truthfulness.53

[26] While there undoubtedly are circumstances under 

which the failure to report certain income, or reporting false 

income, on tax returns reflects on the taxpayer’s character for 

truthfulness, the record here does not support such a conclusion. Pierce’s tax returns were not offered, and there is nothing in the record, or in the employers’ offer of proof, which 

permits a reasonable inference regarding Pierce’s character for 

truthfulness or untruthfulness. An admission from Pierce that 

50 E.g., United States v. Sullivan, 803 F.2d 87 (3d Cir. 1986); United States v. 

Zandi, 769 F.2d 229 (4th Cir. 1985); United States v. Lynch, 699 F.2d 839 

(7th Cir. 1982).

51 U.S. v. Hatchett, 918 F.2d 631 (6th Cir. 1990); Leaf v. Beihoffer, 338 P.3d 

1136 (Colo. App. 2014).

52 United States v. Dennis, 625 F.2d 782 (8th Cir. 1980); Shafer v. American 

Emp. Ins. Co., 535 F. Supp. 1067 (W.D. Ark. 1982).

53 Dennis, supra note 52.
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she did not report nanny earnings on her tax returns, without 

more, is not sufficiently probative of her character for truthfulness or untruthfulness to be admissible under § 27-608(2), 

and any slight probative value is outweighed by the danger 

of unfair prejudice. On this record, we cannot conclude the 

trial court abused its discretion in granting Pierce’s motion in 

limine to exclude such evidence.

(c) Handwritten Note

The trial judge sustained Pierce’s motion in limine to 

exclude an unsigned, undated handwritten note. The employers sought to offer the note as evidence that Pierce had been 

offered other positions during the meeting with Paladino and 

Anderson. The note read, in pertinent part: “Initially, [Pierce] 

took a medical leave because she was not able to perform her 

daily duties. When her medical issues were under control—

Landmark Mgmt offered her 2 different job positions and she 

turned them both down.”

The employers concede the handwritten note is an out-ofcourt statement which they sought to offer for its truth, and 

its admissibility is therefore governed by the hearsay rules. 

The employers suggest the note was admissible as a business 

record under Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27-803(5) 

(Reissue 2008). But there is no evidence the note was made in 

the course of a regularly conducted activity of the employers, 

nor was there evidence the note was prepared at or near the 

time of the meeting it purports to record. In fact, the employers’ offer of proof indicates the note was created 5 months 

after the meeting by someone who did not attend the meeting 

and, furthermore, was prepared under circumstances which 

indicate a lack of trustworthiness. The offer of proof indicates 

Paladino directed one of his employees to prepare the undated, 

unsigned note after “giving her appropriate information to fill 

it out.” Under these circumstances, we do not find the trial 

court abused its discretion in granting Pierce’s motion in limine 

regarding the unsigned note.
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4. Sufficient Evidence

to Support Verdict

[27] The employers assign that the jury’s verdict was not 

supported by sufficient evidence. A jury verdict will not be 

set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could 

find for the successful party.54 In determining the sufficiency 

of the evidence to sustain a verdict in a civil case, an appellate 

court considers the evidence most favorably to the successful 

party and resolves evidential conflicts in favor of such party, 

who is entitled to every reasonable inference deducible from 

the evidence.55

For the most part, in arguing that the evidence was insufficient to support the verdict, the employers simply reiterate 

their contention that they were not covered by the FMLA 

because they were not integrated employers. For the same reasons we rejected this assignment of error previously, we reject 

it reframed as an assignment of insufficient evidence.

[28] The employers also argue there was insufficient evidence 

showing that Pierce suffered an adverse employment decision. 

In support of this argument, the employers point to the testimony of Paladino and Anderson, both of whom testified that 

they offered Pierce two equivalent positions with Paladino’s 

companies and that Pierce rejected them both, choosing instead 

to quit. The evidence, however, was in conflict on this issue. 

Pierce testified the meeting with Paladino and Anderson ended 

without any job offers, and when Anderson telephoned Pierce 

later that evening, Anderson told her “we’re going to let you 

go.” The jury resolved this conflict in the evidence in Pierce’s 

favor. All conflicts in the evidence, expert or lay, and the credibility of the witnesses are for the jury and not for the appellate court.56

54 Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).

55 Id.

56 See Kniesche v. Thos, 203 Neb. 852, 280 N.W.2d 907 (1979).
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Based on our review of the record, we conclude the evidence was sufficient to support the jury’s verdict.

5. Attorney Fees

At the hearing on Pierce’s motion for attorney fees and 

costs, her counsel submitted an affidavit which included a 

detailed billing statement describing counsel’s legal work and 

averments as to reasonableness. Using the lodestar method, 

Pierce’s counsel calculated fees totaling $77,483. The court 

awarded $67,979.70 in attorney fees.

[29] The employers concede that, as the prevailing party, 

Pierce is entitled under the FMLA and the ADAAA to an award 

of reasonable attorney fees. Here, the employers do not contest 

the reasonableness of the hourly rates submitted, but argue the 

fee award was unreasonable for two reasons. First, they argue 

the number of hours claimed was excessive. Second, they 

argue the fee award should have been capped by the contingent 

fee agreement between Pierce and her attorneys.

Regarding their claim that the number of hours worked on 

the case was excessive, the employers suggest the itemized 

statement submitted by Pierce’s lawyer contained duplicative 

entries, included charges for basic research when Pierce’s counsel held themselves out as experienced attorneys in employment discrimination matters, and reflected too much time spent 

on pleadings, discovery, briefing, and correspondence. The 

employers’ brief suggests a fee reduction of 68 percent would 

be appropriate to account for what they describe as excessive billing.

We have reviewed the affidavit and conclude the request for 

attorney fees and expenses is reasonable. On this record, we 

find no abuse of discretion in the court’s conclusion that the 

fees were reasonable.

Alternatively, the employers argue that any fee award 

should not be based on the lodestar method, but instead should 

be based on, and capped by, the contingent fee agreement 

between Pierce and her attorneys. Pierce’s counsel concedes 
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the existence of a contingency fee arrangement with Pierce, 

but the record on appeal does not include any fee agreement 

between Pierce and her counsel, nor does it indicate fully the 

terms of any such agreement.

As a general proposition, it is incumbent upon the appellant to present a record supporting the errors assigned; absent 

such a record, an appellate court will affirm the lower court’s 

decision regarding those errors.57 Without the subject fee agreement or its terms in the record, the record does not support this 

assignment of error and we decline to consider it.

V. CONCLUSION

Having considered the assignments properly before us for 

review and finding no reversible error, the judgment of the 

trial court is affirmed.

Affirmed.

57 Centurion Stone of Neb., supra note 10; InterCall, Inc., supra note 10.