Law Offices of Ronald J. Palagi v. Howard

334 	275 Nebraska reports
In case No. s-07-109, we vacate the county court’s order
and 	remand 	the 	cause 	for 	further 	proceedings 	before 	a
different judge.
J udgment in no . S-06-1400 reverSed in part and in part
vacated , and cauSe remanded for further proceedingS.
J udgment in no . S-07-109 vacated , and cauSe
remanded for further proceedingS.
L aw officeS of ronaLd J. paLagi , p.c., L.L.o., appeLLee
and croSS- appeLLant , v . S teven h. howard ,
appeLLant and croSS- appeLLee .
roSa J urado, S peciaL adminiStrator of the eState of S aLvador
J urado -meLendez , deceaSed , and L aw officeS of ronaLd J.
paLagi , p.c., L.L.o., appeLLeeS, and S teven h. howard ,
appeLLant , v . agri co - op , a nebraSka corporation ,
and union inSurance company , appeLLeeS.
747 N.W.2d 1
Filed april 4, 2008. 	Nos. s-06-384, s-06-664, s-07-757.
1. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
2. Judgments: Time: Appeal and Error. If the amendment of a final judgment or
decree for the purpose of correcting a clerical error either materially alters rights
or obligations determined by the prior judgment or creates a right of appeal where
one did not exist before, the time for appeal should be measured from the entry
of the amended judgment. If, however, the amendment has neither of these results
but, instead, makes changes in the prior judgment which have no adverse effect
upon those rights or obligations or the parties’ right to appeal, the entry of the
amended judgment will not postpone the time within which an appeal must be
taken from the original decree.
3. Contracts: Public Policy. the determination of whether a contract violates pub-
lic policy presents a question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
5. Trial: Evidence: Appeal and Error. a trial court has the discretion to determine
the relevancy and admissibility of evidence, and such determinations will not be
disturbed on appeal unless they constitute an abuse of that discretion.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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6. Judgments: Appeal and Error. When reviewing the sufficiency of the evidence
to sustain a judgment, appellate courts are mindful that every controverted fact
must be resolved in favor of the successful party, and such party is entitled to the
benefit of every inference that can reasonably be deduced from the evidence.
7. Employer and Employee: Employment Contracts: Wages: Words and
Phrases. a bonus can qualify as wages under the Nebraska Wage payment and
Collection act if the employer and employee agreed to it in advance.
8. Appeal and Error. an appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
appeals from the District Court for Douglas County: geraLd
e. moran, Judge. Judgment in No. s-06-384 affirmed. Judgment
in No. s-06-664 reversed and vacated in part, and in part
affirmed as modified.
appeal from the District Court for buffalo County: J ohn p.
icenogLe , Judge. appeal in No. s-07-757 dismissed.
Michael F. Coyle, David J. stubstad, and sherman p. Willis,
of Fraser stryker, p.C., L.L.o., for appellant.
Joseph b. Muller, of Law offices of ronald J. palagi, p.C.,
L.L.o., for appellee Law offices of ronald J. palagi.
thomas F. Hoarty, Jr., for appellee Law offices of ronald J.
palagi in Nos. s-06-384, s-06-664.
Jeffrey Jacobsen for appellee Law offices of ronald J. palagi
in No. s-07-757.
heavican, 	C.J., 	wright, 	connoLLy, 	gerrard, 	S tephan,
mccormack, and miLLer -L erman, JJ.
S tephan, J.
these consolidated appeals relate to a dispute between the
Law offices of ronald J. palagi, p.C., L.L.o. (Law offices),
and attorney steven H. Howard, a former employee of the firm.
the dispute involves entitlement to attorney fees in two cases
which were pending at the time Howard left his employment
with Law offices in 2003. the fee in one of those cases, No.
s-07-757, is the subject of all three consolidated appeals.
LaW oFFICes oF roNaLD J. paLagI v. HoWarD 	335
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336 	275 Nebraska reports
I. FaCts
ronald J. palagi was admitted to practice law in Nebraska in
1975. after practicing with an omaha firm for a short period,
palagi started Law offices in omaha. Howard was admitted to
practice law in Nebraska in 1987. In september 1991, he began
working at Law offices as an independent contractor.
In 1993, Howard and Law offices entered into an “attorney’s
agreement” which “establish[ed] the terms and conditions of
their business relationship.” Under this agreement, Howard
was designated as an employee of Law offices. Law offices
agreed to pay Howard 15 percent of “any attorney fees received
from client files which [Howard] is assigned and which he
will resolve.” the attorney’s agreement further provided at
paragraph 4:
the parties agree that [Howard] is offered an amount equal
to an additional 5% of any total attorney fees received
from the client files assigned and resolved by him for the
month. the parties agree that this additional 5% is not
consideration for past work, but rather is consideration for
any future legal work as set forth in paragraph 11.
paragraphs 11 and 12 then provided:
the parties acknowledge that the clients listed on the cli-
ent list may exercise their right to choose [Howard] as
their attorney in the event [Howard’s] association with
[Law offices] is terminated.
. . . If clients of [Law offices] request that [Howard]
represent them, then [Howard] may decide to represent
them, but all attorney fees generated on such matters
would be paid to [Law offices], and no attorney fees will
be paid to [Howard]. [Howard] acknowledges that the
consideration for this commitment is the consideration set
forth above, including the additional 5% payment . . . .
the attorney’s agreement also set forth terms and conditions
that would be followed in the event the parties’ association
terminated, including that Howard was to give 30 days’ writ-
ten notice, that Howard was not to contact any client of Law
offices prior to giving his notice, and that Howard was not to
remove any client documents or papers from Law offices.

the parties acknowledge that in 1997, they orally agreed to
a change in the manner in which Howard was to be compen-
sated, but they dispute the terms of the change. according to
palagi, the sole shareholder of Law offices, Howard told him
in the summer of 1997 that he was having financial difficulties
and wanted a fixed salary instead of the percentage payments.
palagi stated that in July 1997, they agreed that Howard would
receive a salary of $7,000 per month. according to palagi,
the parties agreed that this amount would be divided into two
paychecks, one for $4,500 payable on the first of the month
and the second for $2,500 payable in the middle of the month.
according to palagi, this pay structure was intended to reflect
the provisions regarding “future consideration” contained in
paragraphs 4, 11, and 12 of the 1993 attorney’s agreement.
palagi also indicated the possibility that Howard would be paid
discretionary bonuses.
Howard’s version of the 1997 agreement is substantially
different. He testified that in the summer of 1997, palagi told
him that his current caseload, consisting primarily of work-
ers’ compensation and accident cases, would be assigned to
another lawyer and that Howard would begin working with
palagi on more substantial cases and would eventually “try
some very significant cases.” according to Howard, 100 to
120 cases were then transferred from him to another lawyer,
and Howard was not paid for any of the work he had done on
those cases. Howard testified that palagi did not specifically
mention the attorney’s agreement, but did tell him that they
were “starting over.” Howard viewed the change as a favorable
professional opportunity. Howard agreed to the $7,000 monthly
salary and understood that palagi would also pay him bonuses
based on performance. Howard testified that he chose to split
the $7,000 into the two monthly payments because it fit with
his bill schedule.
In December 1998, rosa Jurado, special administrator of the
estate of her late husband, salvador Jurado-Melendez, retained
Law offices to represent her. Jurado-Melendez had been killed
in a grain elevator accident which occurred in buffalo County,
Nebraska, in 1997. In 1999, Law offices filed a wrongful
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338 	275 Nebraska reports
death action on Jurado’s behalf in the district court for buffalo
County, naming agri Co-op, the owner of the grain elevator,
and Union Insurance Company, its workers’ compensation car-
rier, as defendants. Howard prepared the case for trial with
the assistance of palagi and other Law offices personnel. Law
offices advanced almost $122,000 in litigation expenses.
between 1997 and 2002, Law offices paid Howard the
agreed-upon salary of $7,000 per month in two monthly pay-
ments, and also paid him periodic bonuses. In the summer
of 2002, just prior to the scheduled trial of the Jurado case,
Howard and palagi again discussed Howard’s compensation.
palagi testified that he offered Howard up to 25 percent of any
fee recovered in the Jurado case if Howard would pay, prior
to trial, a corresponding percentage of the litigation expenses
which had been advanced by Law offices. palagi testified that
Howard declined this offer.
Howard’s account of this conversation is different. He testi-
fied that during the first 6 months of 2002, he had generated
substantial fees for Law offices but was still receiving only
his $7,000 monthly salary. In July 2002, just before leaving on
a planned vacation, he told palagi that he was frustrated and
was thinking of leaving the firm. Howard testified that palagi
immediately wrote him a check for $25,000 and told him to go
on vacation and that they would talk more when he returned.
Howard testified that they met again when he returned from
vacation and at that time, palagi offered Howard 50 percent of
any fee recovered in the Jurado case if Howard paid 50 percent
of the costs Law offices had advanced. alternatively, palagi
offered 25 percent of the fee recovered in the Jurado case and
two other cases the firm was litigating, referred to in the record
as the “barker” and “Christiansen” cases. Howard testified that
he accepted this latter offer and agreed to stay at the firm.
Howard 	tried 	the 	Jurado 	case 	in 	the 	district 	court 	for
buffalo County, with the assistance of a paralegal employed
by Law offices. palagi did not participate in the trial. on
september 16, 2002, the jury returned a verdict in the amount
of $2,125,000 in favor of Jurado. agri Co-op appealed and filed
a supersedeas bond.

In November 2002, while the Jurado appeal was pending,
Law offices paid Howard a bonus. palagi testified that the
bonus was for the work Howard had done during the year. He
denied having any agreement with Howard regarding the fees
in the barker or Christiansen cases at the time of this pay-
ment. Howard testified that the bonus he received in November
2002 included 25 percent of the fee in the barker case, which
had been settled during the preceding month. He testified that
in December 2002, when Law offices received the fee in the
Christiansen case, he approached palagi about payment of his
25-percent share, but palagi responded that Howard had already
received a “nice check” in November and did not pay him any
additional bonus. this upset Howard.
In late December 2002, Howard visited Jurado at her home
in Holdredge, Nebraska. He spoke with her about a settlement
offer of $500,000 received during the pendency of the appeal
and recommended that she reject it. Near the end of the conver-
sation, Howard mentioned that he was thinking of leaving Law
offices, and Jurado asked him to let her know if he decided to
do so.
on February 9, 2003, Howard returned to Jurado’s home and
informed her that he would probably be leaving Law offices,
but that he would continue to represent her if she wanted him
to do so. He informed her that she had the right to choose her
lawyer and that she could choose him but was not required
to do so. He answered questions asked by Jurado and a fam-
ily member who was present. before leaving, Howard gave
Jurado a proposed retention agreement, a sample letter to Law
offices terminating its representation, and a blank copy of her
fee agreement with Law offices. after consulting with another
attorney, Jurado retained Howard to continue representing her
and terminated her relationship with Law offices by letter
dated February 19, 2003. Jurado testified that Howard had been
her main contact throughout the course of the litigation and
that it was her idea for Howard to continue to represent her.
she specifically testified that she would have wanted Howard
to remain as her attorney no matter what actions Law offices
took to try to retain her as a client.
LaW oFFICes oF roNaLD J. paLagI v. HoWarD 	339
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340 	275 Nebraska reports
a settlement was reached in the Jurado case, and the appeal,
Jurado v. Agri Co-op,1 was dismissed by the Nebraska Court of
appeals on June 4, 2004. pursuant to the settlement agreement,
agri Co-op paid a total of $1,950,000, which was deposited in
estate proceedings initiated by Jurado in the county court for
phelps County. as a result of the settlement, Howard filed a
satisfaction of judgment on behalf of Jurado.
1. buffaLo county L itigation (caSe no . S-07-757)
both Law offices and Howard filed notices of attorney lien
in Jurado v. Agri Co-op and requested that the district court
for buffalo County resolve their competing claims. Howard,
Law offices, and Jurado stipulated that of the total settle-
ment amount, $121,893.93 should be paid to Law offices to
reimburse it for the litigation expenses it had advanced. they
further stipulated that $780,000 represented a fair and reason-
able amount of the total attorney fee to be paid by Jurado. the
parties stipulated that this amount should be held in a separate
interest-bearing account by the clerk of the county court for
phelps County in the Jurado-Melendez estate proceeding, for
the benefit of Law offices and Howard only.
In its initial ruling on the competing attorney liens, the dis-
trict court noted that there was pending litigation between Law
offices and Howard in Douglas County regarding their respec-
tive rights under an employment agreement and that both parties
had agreed that resolution of the lien issue was not intended
to resolve that dispute. as to the competing attorney liens, the
court determined that an offer to settle for $500,000 was pend-
ing at the time Jurado terminated her relationship with Law
offices and retained Howard. reasoning that the contingent
fee agreement between Law offices and Jurado entitled Law
offices to one-third of any settlement agreement pending at the
time of termination, the court awarded Law offices $166,667 of
the $780,000 and awarded Howard the remaining $613,333.
Law offices appealed, and in a memorandum opinion filed
June 21, 2006, we reversed, and remanded. Noting that the
disputed funds were held by the probate court and were not
1 Jurado v. Agri Co-op, 12 Neb. app. xxvi (No. a-02-1207, June 4, 2004).

“in the hands of the adverse party” within the meaning of the
attorney lien statute,2 we characterized the action as an equi-
table proceeding to determine the amount of fees to which Law
offices and Howard were entitled for services to the Jurado-
Melendez estate, based upon the principle of quantum meruit.
We also noted the “unique circumstances” presented by the par-
ties’ separate litigation of their contractual claims against each
other and determined that for purposes of resolving the appeal,
we would treat the case as if there had been no employment
relationship between palagi and Howard, i.e., “as if the estate
had simply discharged its attorney and retained a different
attorney who had no prior relationship with previous counsel
or the case.” We concluded that the district court should have
allocated the total amount of the fee to the parties based upon
the reasonable value of their services before and after Jurado
discharged Law offices and retained Howard. We therefore
reversed the judgment of the district court and remanded the
cause “for an allocation of attorney fees based on a determina-
tion of the reasonable value of the services performed by [Law
offices] up to February 19, 2003, and Howard thereafter.”
Following our remand, the district court conducted an evi-
dentiary hearing and determined that Law offices was entitled
to $746,250 plus interest and that Howard was entitled to
$33,750 plus interest. In an order entered on april 13, 2007,
which included these findings, the court directed “the Clerk
of the District Court for buffalo County” to forward the sum
of $746,250 plus 95.68 percent of accrued interest to Law
offices and to forward the sum of $33,750 plus 4.32 percent
of accrued interest to Howard. on its own motion, the court
entered an amended order on april 19 in which it directed that
the same payments be made by “the Clerk of the County Court
for phelps County, Nebraska.” on april 25, Howard filed a
motion to alter or amend the judgment, which the court denied.
Howard then filed the appeal docketed as case No. s-07-757,
which we moved to our docket on our own motion.
2 Neb. rev. stat. § 7-108 (reissue 1997).
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342 	275 Nebraska reports
2. dougLaS county L itigation
(caSeS noS. S-06-384 and S-06-664)
Law offices filed an action against Howard in the district
court for Douglas County, alleging a breach of the 1993
attorney’s agreement and tortious interference with a business
relationship. In its operative seventh amended complaint, Law
offices alleged that certain oral modifications of the attorney’s
agreement occurred in 1997. based on an alleged breach of the
attorney’s agreement as modified and other theories of recov-
ery, Law offices sought the full $780,000 fee in the Jurado
case, as well as other relief. In his answer, Howard denied lia-
bility and alleged counterclaims in which he sought 25 percent
of the fees in the Jurado and Christiansen cases received by
Law offices, and additional relief pursuant to the Nebraska
Wage payment and Collection act (NWpCa).3 In a pretrial rul-
ing, the district court determined that the attorney’s agreement
was an enforceable contract.
the case was tried to a jury, which returned a verdict award-
ing Law offices $585,000 of the $780,000 fee in the Jurado
case and awarding Howard the remaining $195,000. the jury
also awarded Howard $16,625, an amount equal to 25 percent of
the fee in the Christiansen case. both parties filed motions for
new trial, and Howard filed a motion to alter or amend the judg-
ment. Howard also filed a motion for costs and attorney fees
pursuant to the NWpCa. the district court denied both parties’
motions for new trial and Howard’s motion to alter or amend the
judgment. the court sustained Howard’s NWpCa motion for
costs and attorney fees on his claim for a portion of the fee in
the Christiansen case, awarding him $4,156.25 in attorney fees
plus taxable costs, but it denied his NWpCa motion as to the
fee in the Jurado case, reasoning that because Law offices had
never been in possession of the fee, it could not have withheld
payment from Howard. Howard perfected an appeal, and Law
offices cross-appealed. We moved the case to our docket on our
own motion, and it is now before us as case No. s-06-664.
before the trial of the case resulting in case No. s-06-664, Law
offices filed a second action in the district court for Douglas
3 Neb. rev. stat. §§ 48-1228 to 48-1232 (reissue 1998).

County against Howard, alleging a breach of the attorney’s
agreement. Howard filed a motion to dismiss, alleging that the
complaint “sought to enforce provisions of the same” employ-
ment contract at issue in the pending case. the district court
granted the motion to dismiss, reasoning that the previously
filed and then pending action “involves the same parties and
the same issues.” Law offices appealed from the order of dis-
missal, and on our own motion we moved the appeal to our
docket, where it appears as case No. s-06-384.
II. Case No. s-07-757
after the appeal from the district court for buffalo County
was docketed, Law offices filed a motion to dismiss for lack of
jurisdiction, arguing that the appeal was not timely perfected.
We overruled the motion and directed the parties to brief the
jurisdictional issue, which they have done.
1. aSSignmentS of error
Howard assigns, restated and consolidated, that the dis-
trict court erred in (1) using different standards to divide the
attorney fees, (2) admitting evidence allegedly showing Law
office’s costs in litigating the Jurado case, and (3) relying on
the inadmissible evidence in distributing the fees.
2. S tandard of review
[1] before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.4 because the jurisdic-
tional issue presented here does not involve a factual dispute,
we resolve it as a matter of law.5
3. anaLySiS
the jurisdictional issue turns on whether Howard’s april 25,
2007, motion to alter or amend the judgment was timely and
therefore effective to terminate the time for appeal until it was
4 Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007); Williams
v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
5 see, Williams v. Baird, supra note 4; Cerny v. Todco Barricade Co., 273
Neb. 800, 733 N.W.2d 877 (2007).
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344 	275 Nebraska reports
ruled upon. “a motion to alter or amend a judgment shall be
filed no later than ten days after the entry of the judgment.”6
When so filed, a motion to alter or amend the judgment ter-
minates the “running of the time for filing a notice of appeal”
until the entry of an order ruling on the motion.7 Law offices
contends that because Howard’s motion was not filed within 10
days of the district court’s order of april 13, 2007, it did not
terminate the 30-day time to appeal. It contends that the 30-day
time to appeal thus expired before the notice of appeal was
filed on July 11, 2007. Howard argues that because his motion
to alter or amend the judgment was filed within 10 days of the
district court’s april 19 order modifying the april 13 order, it
was timely and terminated the running of appeal time until the
motion was overruled on June 13, 2007.
[2] to resolve this issue, we must determine the nature
and effect of the april 19, 2007, order which was entered on
the court’s own motion. In a similar context, we adopted the
following rule:
If the amendment of a final judgment or decree for the
purpose of correcting a “clerical error” either materi-
ally alters rights or obligations determined by the prior
judgment or creates a right of appeal where one did not
exist before, the time for appeal should be measured
from the entry of the amended judgment. If, however, the
amendment has neither of these results, but instead makes
changes in the prior judgment which have no adverse
effect upon those rights or obligations or the parties’ right
to appeal, the entry of the amended judgment will not
postpone the time within which an appeal must be taken
from the original decree.8
We conclude that the same reasoning should apply to the fil-
ing of motions which terminate the running of time for appeal.
6 Neb. rev. stat. § 25-1329 (Cum. supp. 2006).
7 Neb. rev. stat. § 25-1912(3) (Cum. supp. 2006); Strong v. Omaha Constr.
Indus. Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (2005).
8 Interstate Printing Co. v. Department of Revenue, 236 Neb. 110, 114, 459
N.W.2d 519, 523 (1990), quoting Mullinax and Mullinax, 292 or. 416, 639
p.2d 628 (1982).

thus, if the april 19 order materially altered rights or obliga-
tions existing under the april 13 order, or created a right of
appeal where one did not exist before, the filing of the motion
to alter or amend on april 25 was timely. but if the april 19
order had no adverse effect on the rights or obligations of the
parties under the april 13 order or the parties’ right to appeal,
the filing of the motion to alter or amend was not timely and
did not terminate the running of the time for appeal.
the april 19, 2007, order amended the april 13 order in two
respects. First, it deleted “Clerk of the District Court for buffalo
County” and substituted “Clerk of the County Court for phelps
County” as the person directed to disburse the designated por-
tions of the $780,000 fee to Howard and Law offices. second,
it added the name “steven Howard” after the word “appellee”
in the sentence directing disbursal of that portion of the fee
which the court determined should be paid to Howard. Neither
of these changes had any adverse effect on the rights or obli-
gations of the parties under the april 13 order, nor did either
change create a right to appeal where none had existed. the
parties knew and indeed stipulated that the disputed fee was
being held in the probate proceedings pending in the county
court for phelps County. While the terms “appellant” and
“appellee” were perhaps confusing in the context of the april
13 order, insertion of Howard’s name after the word “appellee”
resolved any possible confusion. the changes were clearly and
simply an exercise of the district court’s “‘inherent authority to
amend its records so as to make them conform to the facts.’”9
thus, the april 19 order did not affect the time in which to file
a motion to alter and amend the april 13 judgment determining
the portion of the disputed fee which each party was to receive.
because Howard’s motion was untimely, it did not terminate
the running of the time to appeal the april 13 order, and that
time had expired before he filed his notice of appeal.
For these reasons, we conclude that we have no appel-
late jurisdiction, and we dismiss the appeal docketed as case
No. s-07-757.
9 Id. at 113, 459 N.W.2d at 522-23, quoting Gunia v. Morton, 175 Neb. 53,
120 N.W.2d 371 (1963).
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346 	275 Nebraska reports
III. case No. s-06-664
this appeal is from the first action filed by Law offices
against Howard in the district court for Douglas County, which
was concluded by a jury trial and judgment entered on the
verdict. the case once included multiple claims involving sev-
eral clients represented by Law offices and Howard prior to
February 2003. by the time of trial in april 2006, the issues
had been narrowed to two: (1) the competing claims of Law
offices and Howard to the $780,000 fee in the Jurado case and
(2) Howard’s claim to $16,625, which was 25 percent of the
fee paid to Law offices in the Christiansen case. the sum of
the fees in dispute was $796,625, and the jury was instructed
that it must award this amount “to either one party or, in some
percentage totaling 100 percent, to both parties in this case.”
as noted, the jury awarded Law offices $585,000 of the fee
in the Jurado case. It awarded Howard the remaining $195,000
of the fee in the Jurado case and $16,625 of the fee in the
Christiansen case.
We note that the fee in the Jurado case at issue in this case,
No. s-06-664, is the same fee at issue in the buffalo County
case which resulted in case No. s-07-757, previously discussed
herein. at the time of trial of this case, the fee was not in the
possession of either party but was held in an interest-bearing
account by the county court for phelps County pursuant to the
parties’ stipulation. Having concluded that we lack jurisdiction
to review the judgment of the buffalo County action, we now
address the issues presented by the appeal and cross-appeal in
the Douglas County case.
1. aSSignmentS of error
Howard assigns 18 errors, which form three basic issues:
(1) whether the attorney’s agreement was a valid, enforceable
contract, and if so, whether there was trial error prejudicial to
Howard; (2) whether Howard was entitled to recover costs and
attorney fees under the NWpCa with respect to the fee in the
Jurado case; and (3) whether the district court erred in denying
Howard’s motion for new trial.
Law offices assigns on cross-appeal, restated and consoli-
dated, that the district court erred in (1) allowing the jury to

consider Howard’s counterclaims for 25 percent of the fees
in the Christiansen and Jurado cases and (2) directing a ver-
dict for Howard on Law offices’ claim that he breached a
fiduciary duty.
2. S tandard of review
[3,4] the determination of whether a contract violates pub-
lic policy presents a question of law.10 When reviewing ques-
tions of law, an appellate court has an obligation to resolve
the questions independently of the conclusion reached by the
trial court.11
[5] a trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
that discretion.12
3. anaLySiS
(a) enforceability of “attorney’s agreement”
Law offices’ claim to the entire fee in the Jurado case is
based upon the provision of the 1993 attorney’s agreement
which states that if Howard is retained by a Law offices’ cli-
ent after he leaves the firm’s employment, all fees generated by
such representation are payable to Law offices and no portion
of such fees are payable to Howard. In a pretrial ruling, the
district court determined that the agreement was an enforce-
able contract which had been breached by Howard, but that
there was a genuine issue of material fact as to damages. In
instructing the jury, the district court stated that Law offices
alleged that Howard had breached the contract by “claiming
entitlement to legal fees in the Jurado[-Melendez] estate case.”
Howard alleges on appeal that the attorney’s agreement was
not enforceable with respect to his representation of Jurado after
10 American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769
(2002); Ploen v. Union Ins. Co., 253 Neb. 867, 573 N.W.2d 436 (1998).
11 In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007); Domjan
v. Faith Regional Health Servs., 273 Neb. 877, 735 N.W.2d 355 (2007).
12 Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007); Green
Tree Fin. Servicing v. Sutton, 264 Neb. 533, 650 N.W.2d 228 (2002).
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leaving the employment of Law offices because the agreement
constituted a restrictive covenant which is overly broad and
injurious to the public. Law offices counters that the restriction
in the attorney’s agreement is reasonable and resulted from a
conscious business decision by Howard to accept greater com-
pensation during his employment in exchange for giving up any
entitlement to a fee if he represented a client of the firm after
leaving its employment.
as its title indicates, the contractual agreement at issue here
is between attorneys who are subject to the professional ethics
rules promulgated by this court. by establishing a “framework
for the ethical practice of law,” such rules establish a state’s
public policy with respect to the professional conduct of law-
yers.13 on the date of the agreement and during the parties’ rep-
resentation of Jurado, the Code of professional responsibility,
Canon 2, provided in relevant part:
Dr 	2-108 	agreements 	restricting 	the 	practice 	of
a Lawyer.
(a) a lawyer shall not be a party to or participate in a
partnership or employment agreement with another lawyer
that restricts the right of a lawyer to practice law after the
termination of a relationship created by the agreement,
except as a condition to payment of retirement benefits.
(b) In connection with the settlement of a controversy
or suit, a lawyer shall not enter into an agreement that
restricts his or her right to practice law.
since 	september 	2005, 	Nebraska 	lawyers 	have 	been 	sub-
ject to the Nebraska rules of professional Conduct, which
similarly provide:
rule 5.6 restrICtIoNs oN rIgHt to praCtICe
a lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment
or other similar type of agreement that restricts the right
of a lawyer to practice after termination of the rela-
tionship, except an agreement concerning benefits upon
retirement; or
13 Neb. Ct. r. of prof. Cond., preamble, ¶ 16 (rev. 2005); Jacob v. Norris,
McLaughlin & Marcus, 128 N.J. 10, 607 a.2d 142 (1992).

(b) an agreement in which a restriction on the law-
yer’s right to practice is part of the settlement of a cli-
ent controversy.14
based upon similar ethics rules in effect throughout the
country, “[c]ourts do not enforce any agreement involving the
employment of lawyers that appears to have restrictive and thus
anticompetitive tendencies.”15 this is so whether the restriction
on competition is direct or indirect.16 the prohibition against
restrictive covenants in agreements between lawyers is gener-
ally reasoned to be necessary to ensure the freedom of clients
to select counsel of their choice.17 Courts and commenta-
tors note a distinction between the business principles which
govern commercial enterprises and the ethical principles that
govern the practice of law and find that because “‘“clients are
not merchandise”’” and “‘“[l]awyers are not tradesmen,”’”
restrictive covenants may not “‘“barter in clients.”’”18 because
the client’s freedom of choice is the paramount interest the
ethics rules attempt to serve, courts reason that any disincen-
tive to competition is as detrimental to the public interest as
an outright prohibition on competition.19 thus, cases almost
uniformly hold that financial disincentive provisions in attorney
agreements are unenforceable as against public policy.20
14 Neb. Ct. r. of prof. Cond. 5.6 (rev. 2005).
15 15 grace McLane giesel, Corbin on Contracts § 80.22 at 166 (Joseph M.
perillo ed., rev. ed. 2003). see, also, 6 samuel Williston, a treatise on the
Law of Contracts § 13:7 (richard a. Lord ed., 4th ed. 1995) (citing cases).
16 see, e.g., Jacob v. Norris, McLaughlin & Marcus, supra note 13.
17 Id.
18 Jacob v. Norris, McLaughlin & Marcus, supra note 13, 128 N.J. at 131,
607 a.2d at 146, quoting aba Comm. on ethics and prof. responsibility,
Formal op. 300 (1961).
19 see, Jacob v. Norris, McLaughlin & Marcus, supra note 13; Spiegel v.
Thomas, Mann & Smith, P.C., 811 s.W.2d 528 (tenn. 1991); Anderson v.
Aspelmeier, Fisch, Power, 461 N.W.2d 598 (Iowa 1990); Cohen v Lord, Day
& Lord, 75 N.Y.2d 95, 550 N.e.2d 410, 551 N.Y.s.2d 157 (1989); Hagen v.
O’Connell, Goyak & Ball, 68 or. app. 700, 683 p.2d 563 (1984).
20 Id.
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We agree with this reasoning and find it applicable to this
case. While the restrictive language in paragraph 12 of the
attorney’s agreement does not directly restrict a departing
lawyer from practicing in competition with the firm, it provides
a strong financial disincentive for that lawyer to perform ser-
vices for a former client, and accordingly, it restricts the client’s
right to retain the lawyer. We conclude that the restriction is
contrary to public policy and unenforceable. accordingly, we
reverse and vacate the judgment in favor of Law offices and
against Howard.
(b) Counterclaims
[6] In its cross-appeal, Law offices contends that the dis-
trict court erred in submitting Howard’s counterclaims to the
jury, arguing that there was insufficient evidence to support
Howard’s claimed entitlement to 25 percent of the fees in the
Jurado and Christiansen cases. When reviewing the sufficiency
of the evidence to sustain a judgment, we are mindful that
every controverted fact must be resolved in favor of the suc-
cessful party, and such party is entitled to the benefit of every
inference that can reasonably be deduced from the evidence.21
Howard testified that in the summer of 2002, he and palagi,
on behalf of Law offices, reached a specific oral agreement
that Howard would receive 25 percent of the fee in three cases,
including Jurado and Christiansen, and that based upon this
agreement, Howard decided to stay with the firm at that time.
While this testimony was disputed by palagi, we conclude that
it was sufficient to warrant submission of Howard’s counter-
claims based upon breach of an oral agreement.
In a related argument, Law offices contends that because
Howard received a discretionary bonus in the year in which
the fee in the Christiansen case was received by Law offices,
which bonus exceeded the amount he claimed was due to him
from the Christiansen case, he was not entitled to an additional
share of that fee. the record reflects that Howard received a
bonus in November 2002 and that Law offices received the
fee in the Christiansen case in December of that year. Howard
21 Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).

specifically testified that he did not receive the promised 25
percent of that fee. the jury resolved the disputed factual issue
in Howard’s favor, and we will not disturb its findings under
our deferential standard of review.
We do note one error with respect to the amount awarded
to Howard on his counterclaim with respect to the fee in the
Jurado case. the $195,000 award represents 25 percent of the
total fee of $780,000 being held by the clerk of the phelps
County Court at the time of trial. but, as subsequently deter-
mined by the district court for buffalo County, Law offices was
entitled to $746,250 of the fee in the Jurado case and Howard
was entitled to the remainder. thus, the award of 25 percent of
the entire fee to Howard would result, at least to some degree,
in an impermissible double recovery.22 accordingly, we modify
the judgment in favor of Howard on the fee in the Jurado case
by reducing it from $195,000 to $186,562.50, which represents
25 percent of that fee awarded to Law offices by the district
court for buffalo County.
(c) Nebraska Wage payment and Collection act
Howard argues that the district court erred in failing to find
that the jury’s award of 25 percent of the fee in the Jurado case
was an award of “wages” under the NWpCa and thus erred
in failing to award him costs and attorney fees on the claim.23
Howard further argues that the district court erred in not order-
ing Law offices to pay an additional amount to the common
schools fund pursuant to the NWpCa.24 Law offices argues
that we lack jurisdiction to resolve these issues because of a
deficiency in Howard’s notice of appeal. We conclude that we
have jurisdiction to address the NWpCa issues presented in
this appeal.
Under the NWpCa, “[a]n employee having a claim for
wages which are not paid within thirty days of the regular
payday designated or agreed upon may institute suit for such
22 see Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).
23 see § 48-1231.
24 see § 48-1232.
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352 	275 Nebraska reports
unpaid wages in the proper court.”25 If the employee has an
attorney, the employee “shall be” entitled to recover “an amount
for attorney’s fees assessed by the court, which fees shall not be
less than twenty-five percent of the unpaid wages.”26
[7] the district court refused to award attorney fees on the
amount the jury awarded Howard as his share of the fee in
the Jurado case, reasoning that this amount did not qualify as
“wages” under the NWpCa. Under the NWpCa, “[w]ages
shall mean compensation for labor or services rendered by an
employee . . . when previously agreed to and conditions stipu-
lated have been met by the employee, whether the amount is
determined on a time, task, fee, commission, or other basis.”27
a bonus can qualify as wages if the employer and employee
agreed to it in advance.28
Howard argues on appeal that the jury award of the fee in
the Jurado case meets the definition of wages under the statute
because it was a bonus agreed to by the parties for which all
conditions were met. He contends that it is unreasonable not to
treat his claim to 25 percent of that fee as a “bonus” in the same
manner as his claim to 25 percent of the fee in the Christiansen
case. He further argues that the fact that the money at issue was
held by the phelps County Court is irrelevant because palagi
denied the existence of the 2002 oral agreement, and that thus,
even if Law offices had received the fee in the Jurado case, it
would not have paid Howard a 25-percent share.
the oral agreement between Howard and Law offices with
respect to division of the fee in the Jurado case, as described
by Howard, had not ripened into a claim for wages at the time
of trial. Howard’s own testimony indicates that he was not
paid his share of the fee in the barker case until the fee was
actually received by Law offices. His testimony also clearly
indicates that he did not expect to receive a share of the fee
in the Christiansen case until it was received by Law offices.
25 § 48-1231.
26 Id.
27 § 48-1229(4).
28 see Knutson v. Snyder Industries, Inc., 231 Neb. 374, 436 N.W.2d 496
(1989).

In characterizing his successful NWpCa claim on that fee,
Howard’s brief states that Law offices received the fee in
December 2004 and “failed to pay [him] 25% of the fee within
thirty (30) days of said date.”29 as we view the record, Howard
had no viable claim to a portion of the fee in the Jurado case
until it was received by Law offices, which has not yet occurred
because both parties agreed that it would be held in the phelps
County Court pending resolution of their litigation. the district
court did not err in denying Howard’s NWpCa claims with
respect to the fee in the Jurado case.
because Howard did receive an award of attorney fees and
costs as to his share of the fee in the Christiansen case, we
address his argument that the court should have ordered Law
offices to pay an additional amount to the common schools
fund. the NWpCa provides that if an employee secures
judgment on a wage collection claim, the court may order
the employer to pay an amount equal to one or two times the
amount of the judgment to the common schools fund.30 It is
within the court’s discretion whether to order such a payment.31
Whether or not the parties had an agreement whereby Howard
would receive a percentage of the fee in the Christiansen case
was disputed at trial. although the jury resolved this issue in
Howard’s favor, we conclude that the district court did not
abuse its discretion in declining to order Law offices to pay an
amount to the common schools fund under § 48-1232.
(d) breach of Fiduciary Duty
In its cross-appeal, Law offices argues that the district court
erred in directing a verdict against Law offices on its claim
that Howard breached a fiduciary duty by communicating
with Jurado regarding his decision to leave the firm while still
employed by Law offices. In sustaining Howard’s motion, the
district court noted that there was no evidence that Howard’s
conduct was the proximate cause of any damage to Law
29 brief for appellant in case No. s-06-664 at 31 (emphasis supplied).
30 § 48-1232.
31 Morris v. Rochester Midland Corp., 259 Neb. 870, 612 N.W.2d 921
(2000).
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354 	275 Nebraska reports
offices. as noted, Jurado testified that she would have retained
Howard to conclude her case regardless of when she learned
that he was leaving Law offices, and regardless of any efforts
by Law offices to discourage her from doing so.
relying on a Utah case32 and this court’s inherent author-
ity to regulate lawyers and the practice of law, Law offices
argues that Howard’s communication with Jurado in his own
behalf while still an employee of Law offices warrants “two
possible remedies: disgorgement of any amounts awarded to
Howard from the Jurado case, or reimbursement to the firm of
the $247,852.00 that is specifically related to the provisions of
the [attorney’s] agreement relating to post-termination legal
fees.”33 In the Utah case, an associate attorney had secretly
represented clients and retained fees while employed by a
law firm, using the firm’s resources to do so. Finding that this
conduct breached a fiduciary duty owed to the firm, the court
ordered him to disgorge all fees collected from the undisclosed
clients while still employed by the firm. the court denied the
firm’s request for total forfeiture of all compensation paid
to the associate during the period when the breach occurred,
concluding that the circumstances did not require “such a
harsh remedy.”34
We do not read this case to support Law offices’ apparent
contention that causation is not an element of a claim based
upon an alleged breach of a fiduciary duty. Indeed, a subse-
quent decision by a U.s. District Court applied Utah law and
specifically discussed evidence of causation in denying sum-
mary judgment on a breach of fiduciary duty claim.35 We note
that Howard has not retained fees from his representation of
Jurado, and he will receive only those portions of the total fee
specifically awarded to him in this case and the action in the
district court for buffalo County. We conclude on the basis
of this record that the district court did not err in granting
32 Prince, Yeates & Geldzahler v. Young, 94 p.3d 179 (Utah 2004).
33 brief for appellee on cross-appeal in case No. s-06-664 at 10.
34 Prince, Yeates & Geldzahler v. Young, supra note 32, 94 p.3d at 185.
35 Farm Bureau Life Ins. v. American Nat. Ins. Co., 505 F. supp. 2d 1178 (D.
Utah 2007), citing Prince, Yeates & Geldzahler v. Young, supra note 32.

Howard’s motion for directed verdict with respect to Law
offices’ claim of breach of fiduciary duty.
(e) remaining assignments of error
[8] an appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it.36 In light of our determinations that Law offices is
not entitled to recover on its breach of contract and breach of
fiduciary claims and that Howard is to retain his judgment on
the counterclaims, as modified, it is unnecessary for us to reach
the remaining assignments of error.
IV. Case No. s-06-384
this is an appeal by Law offices from the dismissal of the
second action which it filed against Howard in the district court
for Douglas County. It sought to enforce the provision of the
attorney’s agreement which required Howard to assign fees
received from former clients of the firm if he performed ser-
vices for such clients, at their request, after he left the firm. the
district court sustained Howard’s motion to dismiss, reasoning
that the case involved the same parties and the same issues
presented in the previously filed action. Law offices does not
dispute this, and concedes in its brief that “it could well be
argued that Law offices has not been prejudiced by the court’s
dismissal.”37 but it argues that the dismissal with prejudice
“might be construed as limiting Law offices’ remedies down
the road.”38
Without speculating as to the nature of such remedies or the
length of the road, we conclude that the district court did not
err in dismissing this action. In general, the law does not favor
piecemeal litigation of disputes.39 In this action, Law offices
sought to enforce the same contractual restrictions on Howard’s
36 In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).
37 brief for appellee on cross-appeal in case No. s-06-664 at 13.
38 Id.
39 see, e.g., Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678
N.W.2d 726 (2004); J.B. Contracting Servs. v. Universal Surety Co., 261
Neb. 586, 624 N.W.2d 13 (2001).
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right to retain fees after leaving the firm that were at issue in
the previously filed action which was tried to conclusion. We
have found those restrictions to be contrary to public policy
and unenforceable in our disposition of case No. s-06-664. We
affirm the order of dismissal in this case.
V. CoNCLUsIoN
For the reasons discussed, the appeal in case No. s-07-757
is dismissed for lack of appellate jurisdiction. Upon issuance
of our mandate, the final order of the district court will require
the clerk of the phelps County Court to disburse the $780,000
fee in the Jurado case which has been held in an interest-
bearing account pursuant to the stipulation of the parties. of this
amount, Law offices will receive $746,250 plus 95.68 percent
of the accrued interest, and Howard will receive $33,750 plus
4.32 percent of the accrued interest.
In case No. s-06-664, we reverse and vacate the judgment
in favor of Law offices, based upon our determination that the
contractual restrictions which it sought to place upon Howard’s
practice of law after leaving the firm are contrary to public
policy and unenforceable. as to Howard’s counterclaim seeking
25 percent of the fee in the Jurado case paid to Law offices,
we reduce the amount from $195,000 to $186,562.50 in order
to prevent a double recovery and affirm as modified. as to
Howard’s counterclaim seeking 25 percent of the fee in the
Christiansen case paid to Law offices, we affirm the judgment
of $16,625 and the award of $4,156.25 in costs and attorney
fees under the NWpCa.
Finally, in case No. s-06-384, we affirm the judgment of
dismissal entered by the district court.
J udgment in no . S-06-384 affirmed .
J udgment in no . S-06-664 reverSed and vacated
in part , and in part affirmed aS modified .
appeaL in no . S-07-757 diSmiSSed .