Schinnerer v. Nebraska Diamond Sales Co.

with directions to remand to DHHS for a reconsideration of
these claims.
CONCLUSION
We reverse the district court’s decision and remand this
cause to the district court with directions to remand to DHHS
for a reconsideration of the claims.
R eveRsed and Remanded with diRections.
susan J. schinneReR, appellee , v. nebRaska diamond
sales company, inc., appellant.
769 N.W.2d 350
Filed July 24, 2009. 	No. S-08-1251.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Courts: Appeal and Error. The district court and higher appellate courts gener-
ally review appeals from the county court for error appearing on the record.
4. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
5. ____: ____. In instances when an appellate court is required to review cases for
error appearing on the record, questions of law are nonetheless reviewed de novo
on the record.
6. Statutes. Statutory interpretation is a question of law.
7. Employer and Employee: Wages. The Nebraska Wage Payment and Collection
Act permits an employee to sue his or her employer if the employer fails to pay
the employee’s wages as they become due.
8. Damages: Proof. Damages need not be proved with mathematical certainty;
however, damages cannot be established by evidence which is speculative and
conjectural.
Appeal from the District Court for Lancaster County, paul
d. meRRitt, JR., Judge, on appeal thereto from the County
194 	278 NebrASkA rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Court for Lancaster County, susan i. stRong, Judge. Judgment
of District Court affirmed.
David r. buntain, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., and John Tavlin for appellant.
John M. boehm and Paul L. Douglas for appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack,
and milleR-leRman, JJ.
milleR-leRman, J.
NATUre OF CASe
Appellee, Susan J. Schinnerer, brought this action in the
county court for Lancaster County under the Nebraska Wage
Payment and Collection Act (Wage Payment Act), Neb. rev.
Stat. §§ 48-1228 to 48-1232 (reissue 2004), seeking pay-
ment of commissions which she alleged were owed to her by
appellant, Nebraska Diamond Sales Company, Inc. (Nebraska
Diamond). Upon a finding that Schinnerer was entitled to com-
missions, the county court granted partial summary judgment
in favor of Schinnerer and held a bench trial on the factual
issue of the amount of commissions that were owed. Following
trial, judgment was entered against Nebraska Diamond in
which Nebraska Diamond was ordered to pay Schinnerer com-
missions on certain accounts. Nebraska Diamond appealed
these orders to the district court for Lancaster County, which
affirmed the orders of the county court. Nebraska Diamond
appeals. We affirm.
STATeMeNT OF FACTS
Schinnerer worked for Nebraska Diamond from November
2001 through February 2004 as a sales associate. Schinnerer
was paid entirely on a commission basis. Schinnerer was
entitled to 19 percent of the profit from a sale. Profit from
a sale was the invoice price minus the cost of the ring and
diamond, which the parties referred to as the “board totals.”
Schinnerer stated that her position involved meeting with a
customer, determining what he or she wanted, showing the
customer the merchandise, assisting the customer in making
SCHINNerer v. NebrASkA DIAMOND SALeS CO. 	195
Cite as 278 Neb. 194

a choice, executing the sales contract, approving financing,
placing the diamond purchased and the ordering instructions
for the ring into a job order envelope, accepting any downpay-
ment, and placing the diamond purchased and the job order in
the safe. Once the job envelope was placed in the safe, other
employees were involved in preparing the ring for delivery to
the customer. When the final purchase price was paid and the
ring was assembled, it was retained in the safe for delivery. At
the time of Schinnerer’s termination from employment with
Nebraska Diamond, she had completed 38 job orders, which
are the subject of this case.
At the commencement of each calendar year, Schinnerer
received a document titled “rules regulating Sales Staff
Commissions,” which stated that to earn commissions on an
account, the proceeds of the account must be received in
full by Nebraska Diamond. Further, the document stated that
to receive commissions on a sale, Schinnerer must still be
employed by Nebraska Diamond at the time the full purchase
price was paid. Nebraska Diamond’s employment policies
stated the same policy.
On January 13, 2005, Schinnerer brought this action in the
county court for Lancaster County, claiming that based on the
definition of commissions in the Wage Payment Act, she was
entitled to commissions on the orders completed at the time
of her termination of employment. Nebraska Diamond denied
that Schinnerer was entitled to the commissions. Nebraska
Diamond countered that at the time of Schinnerer’s termina-
tion of employment, it had not received the full sale price of
any of the 38 accounts on which Schinnerer claimed com-
missions, and that therefore, Schinnerer was not eligible to
earn, or entitled to receive, commissions on any of the dis-
puted orders.
On October 20, 2006, the county court entered an order deny-
ing Nebraska Diamond’s motion for summary judgment and
granting Schinnerer’s partial motion for summary judgment.
The county court concluded that Nebraska Diamond’s claim
that Schinnerer was not entitled to any commissions based on
the language of the agreement between the parties titled “rules
regulating Sales Staff Commissions” constituted a
196 	278 NebrASkA rePOrTS

violation of the Nebraska Wage Payment and Collection
Act and [was] void in so far as it circumvent[ed] the stat-
utory definition of wages found in the Act by disallowing
the payment of any commission on an account which has
not been paid in full by the close of business on the last
day of a salesperson’s employment.
The county court then held a bench trial on the factual issue
of the amount of commissions Schinnerer was actually owed
on the 38 orders in dispute. Schinnerer was ultimately awarded
$4,878.15 in commissions. The county court also awarded
Schinnerer attorney fees and ordered Nebraska Diamond to pay
the costs of the action.
Nebraska Diamond appealed these orders to the district court
for Lancaster County. The district court affirmed. The district
court concluded that the language of the Wage Payment Act,
at the time of Schinnerer’s termination of employment, was
clear and that wages included commissions due to Schinnerer
on her orders on file with Nebraska Diamond at the time of her
termination. The district court then concluded that the amount
due Schinnerer was a question of fact, and after reviewing the
record, the district court determined that the decisions of the
county court conformed to the law, were supported by compe-
tent evidence, and were neither arbitrary, capricious, nor unrea-
sonable. The district court also awarded Schinnerer attorney
fees on appeal. Nebraska Diamond appeals.
ASSIGNMeNTS OF errOr
Nebraska Diamond argues, summarized and rephrased, that
the district court erred by (1) concluding that the employment
agreement between the parties was in violation of the Wage
Payment Act and void and interpreting the Wage Payment Act
to provide Schinnerer with a right to the commissions sought;
(2) awarding damages to Schinnerer based on the county
court’s order, which was insufficient, speculative, and conjec-
tural and did not reasonably calculate the damages; and (3)
awarding Schinnerer attorney fees.
STANDArDS OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
SCHINNerer v. NebrASkA DIAMOND SALeS CO. 	197
Cite as 278 Neb. 194

regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. OMNI v. Nebraska Foster Care
Review Bd., 277 Neb. 641, 764 N.W.2d 398 (2009). In review-
ing a summary judgment, an appellate court views the evidence
in the light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all reason-
able inferences deducible from the evidence. Id.
[3,4] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
the record. First Nat. Bank of Unadilla v. Betts, 275 Neb. 665,
748 N.W.2d 76 (2008). When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.
[5,6] However, in instances when an appellate court is
required to review cases for error appearing on the record,
questions of law are nonetheless reviewed de novo on the
record. Id. Statutory interpretation is a question of law. In re
Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
ANALYSIS
The Rulings on the Motion for Summary Judgment
Were Correct: Commissions Are Due Under the
Wage Payment Act in Effect at the Time
of Schinnerer’s Employment.
Nebraska Diamond’s first assignment of error claims, con-
densed and summarized, that the district court erred by affirm-
ing the county court’s grant of partial summary judgment in
favor of Schinnerer. In its order, the county court concluded
that the agreement between Nebraska Diamond and Schinnerer
was void because it circumvented the statutory language of
the Wage Payment Act. Nebraska Diamond argues that it did
not owe Schinnerer commissions at the time of her termina-
tion. Nebraska Diamond relies on the language in the employ-
ment agreement and its employment policies and claims that
Schinnerer was not eligible to earn commissions; therefore,
no commissions were subject to the definition of wages in the
Wage Payment Act.
198 	278 NebrASkA rePOrTS

[7] The Wage Payment Act permits an employee to sue his
or her employer if the employer fails to pay the employee’s
wages as they become due. See § 48-1231. At the times rele-
vant to this case, § 48-1229(4) defined commissions as wages
in the following respect:
Wages means compensation for labor or services rendered
by an employee . . . when previously agreed to and condi-
tions stipulated have been met by the employee, whether
the amount is determined on a time, task, fee, commis-
sion, or other basis. Wages includes commissions on all
orders delivered and all orders on file with the employer
at the time of termination of employment less any orders
returned or canceled at the time suit is filed.
This section was amended in 2007, but the parties agree that
the above-quoted statutory language is the operative language
in this case.
In Moore v. Eggers Consulting Co., 252 Neb. 396, 562
N.W.2d 534 (1997), we considered a case under the version
of the Wage Payment Act which controls this case. In Moore,
we addressed the issue of when commissions are owed to an
employee who is subject to an employment agreement that con-
flicts with the language of the Wage Payment Act. In Moore,
brad J. Moore’s job title was personnel recruiter, and his duties
included solicitation of, consultation with, and placement of
employee prospects. Moore filed suit seeking commissions on
accounts he placed prior to terminating his employment with
eggers Consulting Company (eggers). eggers argued that it
did not owe Moore the commissions he sought, based on an
employment agreement which stated:
“employee shall be entitled only to those commissions
which are due and payable on the final day of employ-
ment. A commission is due and payable upon collection
of the fee from the client. No commission shall be paid to
the employee until such time as the client pays the com-
mission and the [client] begins employment.”
Id. at 405, 562 N.W.2d at 541.
In addressing eggers’ argument, this court observed that the
statute clearly stated that wages include commissions on all
orders “on file” with the employer at the time of termination.
SCHINNerer v. NebrASkA DIAMOND SALeS CO. 	199
Cite as 278 Neb. 194

Id. The statute did not require that orders on file be fully paid
at the time of termination. based on this statutory language,
this court concluded that the employment agreement at issue
was an attempt to circumvent the statutory language requiring
payment of commissions and was therefore void. Id.
Our reasoning in Moore is applicable to this case. The
evidence in this case includes two documents relevant to
our analysis. The first, entitled “rules regulating Sales Staff
Commissions,” states:
A salesperson is eligible to earn a commission on an
account, business or sale written only when the account,
business or sale generating the commission is paid in full
and only if the salesperson is employed by the company
at the time the account, business or sale generating the
commission is paid in full.
The second document, entitled “Nebraska Diamond employment
Policies,” includes similar language.
based on the language quoted above and the facts of this
case, Nebraska Diamond attempts to distinguish the present
appeal from Moore. Nebraska Diamond contends that under
the language in its documents, Schinnerer was not eligible
to earn a commission until the sale was paid in full, and that
therefore, where Schinnerer was ineligible to earn a commis-
sion, it follows that she could never earn a commission on a
sale which was not completely paid at the time of termination
of employment. According to Nebraska Diamond’s argument,
because Schinnerer was not eligible to earn the commissions,
and because Schinnerer never earned the commissions, the
commissions at issue were effectively not “on file” at the time
of termination of employment and were not wages under the
Wage Payment Act.
We are not persuaded by Nebraska Diamond’s argument
and conclude that the language upon which it relies is incon-
sistent with, and merely a device to avoid the payment of
wages due under, the applicable Wage Payment Act. We are
aware of the difference in the language of the agreement in
Moore v. Eggers Consulting Co., 252 Neb. 396, 562 N.W.2d
534 (1997), and the documents in the present case; however,
the distinction is of no legal consequence. We recognize
200 	278 NebrASkA rePOrTS

Nebraska Diamond’s efforts to deem its employees ineligible
for commissions; however, the facts remain that the orders
generated by Schinnerer at issue were “on file” at the time
of Schinnerer’s termination of employment and that com-
missions thereon were owed to Schinnerer as wages under
§ 48-1229(4) of the Wage Payment Act. We will not honor
Nebraska Diamond’s attempt to avoid the Wage Payment
Act. The language of the agreement upon which Nebraska
Diamond relies is void as a violation of the Wage Payment
Act. See Moore, supra.
We conclude that based on the clear language of the Wage
Payment Act and our holding in Moore, the county and district
courts properly concluded that Nebraska Diamond’s employ-
ment agreement and policies containing the challenged lan-
guage are void. Therefore, we affirm the grant of partial
summary judgment in favor of Schinnerer and the denial of
summary judgment in favor of Nebraska Diamond.
The District Court Properly Affirmed the
County Court’s Damages Award.
Nebraska Diamond assigns as error the district court’s affir-
mance of the county court’s calculations of the amount of
commissions actually owed Schinnerer. Nebraska Diamond
claims that the calculations are too speculative for an award
of damages.
[8] In a case brought under the Wage Payment Act, we stated
that damages need not be proved with mathematical certainty;
however, damages cannot be established by evidence which is
speculative and conjectural. Gagne v. Severa, 259 Neb. 884,
612 N.W.2d 500 (2000).
In this case, the county court held a bench trial to determine
the amount of commissions owed to Schinnerer under the
definition of commissions in the Wage Payment Act. At trial,
Schinnerer introduced the actual invoices of the 38 accounts for
which she claimed commission. Nebraska Diamond claimed
that 19 of the 38 “invoices” were canceled prior to January
13, 2005, the date Schinnerer filed suit. However, Nebraska
Diamond’s store manager testified that the remaining 19 con-
tracts were not canceled as of January 13.
SCHINNerer v. NebrASkA DIAMOND SALeS CO. 	201
Cite as 278 Neb. 194

As to the 19 invoices that Nebraska Diamond alleged were
canceled, Schinnerer presented evidence at trial that Nebraska
Diamond collected and retained money on 17 of those con-
tracts. The evidence showed that on 7 of the alleged canceled
accounts, the full purchase price was recovered and that on
the 10 remaining contracts, Nebraska Diamond retained some
of the purchase price on those accounts. Therefore, follow-
ing the bench trial, the county court entered its order finding
that Schinnerer was entitled to a full commission on the 19
orders on file when she was terminated as a sales associate for
Nebraska Diamond and on the 7 alleged canceled accounts for
which the full purchase price was ultimately recovered. Of the
10 remaining contracts that Nebraska Diamond alleged were
canceled, the court concluded that Schinnerer was due com-
missions on the amount recovered and retained by Nebraska
Diamond. based on these findings, the county court found that
Schinnerer was due $4,878.15 in commissions. The district
court affirmed the award.
The record shows that the county court’s findings were not
based on speculation and conjecture, but, rather, were supported
by competent evidence presented at trial and were neither arbi-
trary, capricious, nor unreasonable. The district court reviewed
the county court’s decision for error on the record pursuant to
Neb. rev. Stat. § 25-2733(1) (Cum. Supp. 2006) and issued
its eight-page opinion. Upon our review, we conclude that the
district court’s affirmance of the award was not in error.
Schinnerer Was Properly Awarded Attorney Fees.
Finally, Nebraska Diamond argues that the awards of attor-
ney fees by the county and district courts were excessive.
The county court awarded $9,255, and the district court
awarded $3,000. We find no error in the awards of these attor-
ney fees.
Section 48-1231 of the Wage Payment Act states in part:
If an employee establishes a claim and secures judgment
on the claim, such employee shall be entitled to recover
(1) the full amount of the judgment and all costs of such
suit and (2) if such employee has employed an attorney
in the case, an amount for attorney’s fees assessed by the
202 	278 NebrASkA rePOrTS

court, which fees shall not be less than twenty-five per-
cent of the unpaid wages.
Schinnerer established a claim for unpaid wages and was enti-
tled to attorney fees of not less than 25 percent of the unpaid
wages under § 48-1231.
The county court explained that its award of attorney fees
was based on the nature of the proceedings, the time and labor
required, the novelty and difficulty of the questions raised, the
skill required to properly conduct the case, the responsibility
assumed, the care and diligence exhibited at trial, the results
obtained in the suit, the character and standing of Schinnerer’s
attorney, and the customary charges by attorneys for similar
services. The district court reviewed the proceedings in the
county court, considered the 16 assignments of error and
issued its opinion affirming the order of the county court in all
respects, and awarded attorney fees.
While Nebraska Diamond points us to other cases under the
Wage Payment Act where the plaintiffs were awarded a lower
percentage of fees than were awarded in this case, it does not
otherwise indicate how the attorney fees awarded in this case
were in error. There is nothing in the record to indicate that
the county court or the district court abused its discretion in
awarding a fee greater than the minimum 25 percent of the
judgment, and we therefore affirm the awards of attorney fees
in the county and district courts.
CONCLUSION
For the reasons recited above, we conclude that Nebraska
Diamond’s policies regarding paying commissions upon ter-
mination of employment were void because they circumvented
the statutory language of the Wage Payment Act in effect dur-
ing the relevant timeframe. The district court was not in error
when it affirmed the county court’s findings with respect to the
amount of the commissions actually owed Schinnerer, and the
county and district courts properly awarded Schinnerer attorney
fees and costs. Therefore, we affirm.
affiRmed.
wRight, J., not participating.
SCHINNerer v. NebrASkA DIAMOND SALeS CO. 	203
Cite as 278 Neb. 194