Aon Consulting v. Midlands Fin. Benefits

642 	275 Nebraska reports
A on C onsultinG, inC., AppellAnt And Cross -Appellee ,
v . midlAnds finAnCiAl B enefits , inC.,
Appellee And Cross -AppellAnt .
A on C onsultinG, inC., Appellee And Cross -AppellAnt ,
v . williAm peArson , AppellAnt And Cross -Appellee .
748 N.W.2d 626
Filed May 9, 2008. 	Nos. s-06-1256, s-07-034.
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 was granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
4. Damages: Appeal and Error. the amount of damages to be awarded is a
determination solely for the fact finder, and the fact finder’s decision will not
be disturbed on appeal if it is supported by the evidence and bears a reasonable
relationship to the elements of the damages proved.
5. Directed Verdict: Evidence. a directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one conclu-
sion from the evidence, that is to say, when an issue should be decided as a matter
of law.
6. ____: ____. the party against whom the verdict is directed is entitled to have
every controverted fact resolved in his or her favor and to have the benefit of
every inference which can reasonably be drawn from the evidence. If there is any
evidence which will sustain a finding for the party against whom the motion is
made, the case may not be decided as a matter of law.
7. Restrictive Covenants: Employer and Employee. In determining whether a
covenant not to compete is valid, a court considers whether the restriction is (1)
reasonable in the sense that it is not injurious to the public, (2) not greater than is
reasonably necessary to protect the employer in some legitimate interest, and (3)
not unduly harsh and oppressive on the employee.
8. ____: ____. an employer has a legitimate business interest in protection against a
former employee’s competition by improper and unfair means, but is not entitled
to protection against ordinary competition from a former employee.
9. Restrictive Covenants: Employer and Employee: Goodwill: Words and
Phrases. to distinguish between ordinary competition and unfair competition,
courts focus on an employee’s opportunity to appropriate the employer’s goodwill
by initiating personal contacts with the employer’s customers.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

10. Restrictive Covenants: Employer and Employee: Goodwill. Where an employee
has substantial personal contact with the employer’s customers, develops goodwill
with such customers, and siphons away the goodwill under circumstances where
the goodwill properly belongs to the employer, the employee’s resultant competi-
tion is unfair and the employer has a legitimate need for protection against the
employee’s competition.
11. Contracts. Generally, sufficient consideration for an agreement will be found if
there is some benefit to one of the parties or a detriment to the other.
12. Breach of Contract: Damages. In a breach of contract case, the ultimate objec-
tive of a damages award is to put the injured party in the same position the injured
party would have occupied if the contract had been performed, that is, to make the
injured party whole.
13. ____: ____. one injured by a breach of contract is entitled to recover all its
damages, including the gains prevented as well as the losses sustained, provided
the damages are reasonably certain and such as might be expected to follow
the breach.
14. Damages: Proof. While damages need not be proved with mathematical certainty,
neither can they be established by evidence which is speculative and conjectural.
15. 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.
16. Expert Witnesses. Not every attack on expert testimony amounts to a claim under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 u.s. 579, 113 s. Ct. 2786,
125 L. ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631
N.W.2d 862 (2001).
17. Trial: Expert Witnesses: Appeal and Error. the admission of expert testimony
is ordinarily within the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion.
18. Damages: Proof. there is no precise formula for determining lost profits, and
the only requirement in Nebraska is that the calculation be supported by some
financial data which would permit an estimate of the actual loss to be made with
reasonable certitude and exactness.
19. Corporations. an officer must comply with all applicable fiduciary duties when
dealing with the corporation and its shareholders.
20. ____. Nominal corporate officers, with no management authority, generally do not
owe fiduciary duties to the corporation.
21. ____. an officer who participates in management of the corporation, exercising
some discretionary authority, is a fiduciary of the corporation as a matter of law.
22. Torts: Intent: Proof. to succeed on a claim for tortious interference with a
business relationship or expectancy, a plaintiff must prove (1) the existence of a
valid business relationship or expectancy, (2) knowledge by the interferer of the
relationship or expectancy, (3) an unjustified intentional act of interference on the
part of the interferer, (4) proof that the interference caused the harm sustained, and
(5) damage to the party whose relationship or expectancy was disrupted.
23. Torts: Employer and Employee. Factors to consider in determining whether
interference with a business relationship is “improper” include: (1) the nature of
the actor’s conduct, (2) the actor’s motive, (3) the interests of the other with which
aoN CoNsuLtING v. MIDLaNDs FIN. beNeFIts 	643
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644 	275 Nebraska reports
the actor’s conduct interferes, (4) the interests sought to be advanced by the actor,
(5) the social interests in protecting the freedom of action of the actor and the
contractual interests of the other, (6) the proximity or remoteness of the actor’s
conduct to the interference, and (7) the relations between the parties.
24. Actions: Intent. In order to be actionable, interference with a business relation-
ship must be both intentional and unjustified.
appeals from the District Court for Douglas County: J.
miCHAel C offey, Judge. affirmed.
richard J. Gilloon and bradley b. Mallberg, of erickson &
sederstrom, p.C., for appellant aon Consulting, Inc.
Mark a. Fahleson, of rembolt Ludtke, L.L.p., for appellee
Midlands Financial benefits, Inc.
Frederick s. Cassman and Frank F. pospishil, of abrahams,
kaslow & Cassman, for appellant William pearson.
H eAviCAn , 	C.J., 	wriGHt , 	C onnolly , 	G errArd , 	stepHAn ,
mCC ormACk , and miller -lermAn , JJ.
stepHAn , J.
While employed by alexander & alexander services Inc.
(a&a) in 1981, William pearson signed an agreement which
restricted his ability to solicit business from certain custom-
ers of the firm for 2 years after leaving its employment.
aon Consulting, Inc. (aon), merged with a&a in 1997, and
pearson remained as an officer and employee of aon until 2001,
when he resigned and joined a competitor, Midlands Financial
benefits, Inc. (Midlands). In his new employment, pearson
solicited business from aon customers with whom he had per-
sonal business relationships while employed by aon. aon sued
pearson for breach of contract and was awarded a money judg-
ment from which pearson appeals. aon cross-appeals from the
dismissal of its breach of fiduciary duty claim against pearson.
In a separate case, aon sued Midlands for intentional interfer-
ence with a business relationship and appeals from a directed
verdict of dismissal. We affirm the judgments of the district
court in both cases.

I. baCkGrouND
1. fACts
both cases arise from the same factual circumstances. In
1981, pearson began working for a&a as an account execu-
tive selling and servicing group health insurance plans. several
months later, he signed a nonsolicitation agreement. the agree-
ment provided in relevant part:
[I]f your employment with a&a should terminate for
any reason, you will not, directly or indirectly, for a
period of two (2) years after the date of such termination
of your employment, in any capacity whatsoever (either
as an employee, officer, director, stockholder, proprietor,
partner, joint venturer, consultant or otherwise), solicit,
sell to, divert, serve, accept or receive insurance agency,
brokerage or consulting business . . . from any customer
or active prospect of a&a which you personally, alone or
in combination with others, handled, serviced or solicited
at any time during the two (2) year period immediately
preceeding termination of your employment.
. . . .
In the event of your termination (except for death, per-
manent or total disability or retirement), a&a agrees that
it will pay you a sum equivalent to (a) one (1) month’s
salary computed as of the date of such termination if such
termination takes place within one year from the date
hereof or (b) two (2) month’s salary computed as of the
date of such termination if such termination takes place
after one year from the date hereof.
In 1990, pearson became the manager of a&a’s Lincoln,
Nebraska, office and was given the title of vice president. In
1994, he became the manager of the omaha, Nebraska, office
as well. In 1996, in anticipation of the merger, a&a requested
that pearson sign a new nonsolicitation agreement that expressly
stated it was assignable without his consent. pearson declined
to sign this agreement.
In 1997, aon merged with a&a. pearson continued to work
for the company in the same capacity and performed the same
duties. In March 2001, aon relieved pearson of his managerial
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646 	275 Nebraska reports
and supervisory duties, although he remained designated as
a vice president. aon corporate minutes show that he was
officially designated a vice president by aon’s board of direc-
tors. the record indicates that over 200 aon employees were
designated as “Vice presidents” and that approximately 125
more were “senior Vice presidents.”
pearson became dissatisfied with his employment at aon,
and in the summer of 2001, he sought legal advice regard-
ing the validity of the nonsolicitation agreement. His attorney
advised him that the agreement was not enforceable because
he was no longer employed by a&a, but, rather, by aon, and
more than 2 years had elapsed since he was last employed by
a&a. In June or July 2001, pearson contacted and met with a
co-owner of Midlands, a Lincoln firm engaged in the business
of financial planning and employee benefits programs. they
discussed the possibility of pearson’s becoming employed by
Midlands. pearson and his aon coworker Cathy Dorenbach met
with the co-owners of Midlands again in July and september to
discuss employment opportunities at Midlands. During one of
these meetings, pearson showed Midlands the nonsolicitation
agreement and informed Midlands that his attorney had opined
that it was unenforceable. Midlands’ co-owners testified that
they did not recruit pearson, nor did they expect him to solicit
former aon customers during his employment at Midlands.
there is evidence that the sales goals which Midlands sets for
its employees could have been met by pearson without solicita-
tion of aon customers.
Dorenbach testified that she and pearson began discuss-
ing their mutual unhappiness at aon during the summer of
2001. on september 28, 2001, both pearson and Dorenbach
resigned from aon and joined Midlands. prior to resigning,
both informed aon customers with whom they worked that they
would soon be leaving aon. In some instances, they indicated
that they would be employed by Midlands. either just prior to
or immediately after leaving, pearson and Dorenbach helped
customers prepare broker of record letters changing those cus-
tomers’ affiliations from aon to Midlands. Dorenbach testified
that she and pearson independently made the decision to leave
aon, but that after the decision was made, they coordinated the

time and date of their leaving. Dorenbach testified that pearson
was aware of her plans to leave aon and was aware that she was
contacting aon customers and telling them of her plans prior to
leaving. pearson admitted that despite this knowledge, he did
not inform anyone at aon of Dorenbach’s plans.
as employees of Midlands, both pearson and Dorenbach
were paid a commission of 50 percent of all revenues generated.
ultimately, 12 customers pearson had served at aon transferred
their business to him at Midlands. approximately 25 other aon
customers served by Dorenbach also transferred their business
to her at Midlands. by January 2002, Midlands’ management
was aware that most of pearson’s business was being generated
from former aon customers.
2. CAse no . s-07-034: A on v . peArson
aon sued pearson in the district court for Douglas County,
alleging, inter alia, that he had breached the nonsolicitation
agreement and breached his fiduciary duty. pearson answered,
denying aon’s material allegations and specifically alleging
that the nonsolicitation agreement was not enforceable by aon.
on cross-motions for summary judgment, the district court
determined that the nonsolicitation agreement was valid and
enforceable as an asset of a&a which became an asset of aon
following the merger. the court entered summary judgment for
aon on the issue of liability with respect to claims involving
breach of the agreement. the court entered summary judgment
in favor of pearson with respect to aon’s claim alleging breach
of fiduciary duty. the matter proceeded to a bench trial on the
issue of damages, and the court entered judgment in favor of
aon in the amount of $123,063. after both parties’ motions
for new trial and motions to alter or amend the judgment were
overruled, pearson appealed, and aon cross-appealed. that
matter is before us as case No. s-07-034.
3. CAse no . s-06-1256: A on v . midlAnds
aon filed an action in the same court against Midlands,
alleging that by hiring pearson with knowledge of the nonso-
licitation agreement, it “unjustifiably and intentionally acted to
interfere with, and to assist pearson to breach” the agreement.
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648 	275 Nebraska reports
In its answer, Midlands asserted a general denial and, in an
affirmative defense, alleged that it had relied on pearson’s rep-
resentation that “he had received a legal opinion that such Non-
solicitation agreement was no longer valid or enforceable.”
pursuant to a stipulation of the parties, the court consolidated
the case with aon’s action against pearson for both discovery
and trial. at the consolidated trial, the court granted Midlands’
motion for a directed verdict at the close of aon’s evidence
and dismissed the action. aon appealed, and Midlands cross-
appealed. We moved this appeal and case No. s-07-034 to our
docket pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.1
although the two appeals were argued separately, we address
and resolve both in this opinion.
II. assIGNMeNts oF error
In case No. s-07-034, pearson assigns, restated and con-
solidated, that the trial court erred in (1) finding that the non-
solicitation agreement was enforceable by aon, (2) admitting
the opinion of aon’s expert witness on lost profits, (3) calculat-
ing aon’s net lost profits, and (4) failing to allow it to amend its
answer to conform to the evidence.
on cross-appeal in case No. s-07-034, aon assigns that the
trial court erred in (1) overruling its motion for summary judg-
ment on the claim that pearson breached his fiduciary duty as
an officer of aon, (2) dismissing its action against pearson for
breach of his fiduciary duty, (3) limiting its evidence of dam-
ages to the 2-year period identified in the nonsolicitation agree-
ment, and (4) calculating damages by counting certain expenses
twice and using the wrong ratio of expenses to revenue to cal-
culate net lost profits.
In case No. s-06-1256, aon assigns that the district court
erred in (1) sustaining Midlands’ motion for directed verdict and
(2) sustaining Midlands’ objection to aon’s evidence of damages
beyond the 2-year period of the nonsolicitation agreement.
on cross-appeal in case No. s-06-1256, Midlands assigns that
the trial court erred in (1) finding the nonsolicitation agreement
1 see Neb. rev. stat. § 24-1106(3) (reissue 1995).

was enforceable under Nebraska law and (2) finding that aon
had standing to enforce the nonsolicitation agreement.
III. staNDarD oF reVIeW
[1,2] 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 In reviewing a summary judg-
ment, an appellate 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.3
[3,4] In a bench trial of a law action, the trial court’s factual
findings have the effect of a jury verdict and will not be dis-
turbed on appeal unless clearly wrong.4 the amount of damages
to be awarded is a determination solely for the fact finder, and
the fact finder’s decision will not be disturbed on appeal if it is
supported by the evidence and bears a reasonable relationship
to the elements of the damages proved.5
[5,6] a directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is to say, when an
issue should be decided as a matter of law.6 the party against
whom the verdict is directed is entitled to have every contro-
verted fact resolved in his or her favor and to have the benefit
of every inference which can reasonably be drawn from the
2 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007); Glad
Tidings v. Nebraska Dist. Council, 273 Neb. 960, 734 N.W.2d 731 (2007).
3 Sayah v. Metropolitan Prop. & Cas. Ins. Co., 273 Neb. 744, 733 N.W.2d 192
(2007).
4 Magistro v. J. Lou, Inc., 270 Neb. 438, 703 N.W.2d 887 (2005); Par 3, Inc.
v. Livingston, 268 Neb. 636, 686 N.W.2d 369 (2004).
5 Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007); Orduna v. Total
Constr. Servs., 271 Neb. 557, 713 N.W.2d 471 (2006).
6 Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007); LeRette
v. American Med. Security, 270 Neb. 545, 705 N.W.2d 41 (2005).
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650 	275 Nebraska reports
evidence.7 If there is any evidence which will sustain a finding
for the party against whom the motion is made, the case may not
be decided as a matter of law.8
IV. aNaLysIs
1. enforCeABility of nonsoliCitAtion AGreement
a legal issue common to both cases is whether the 1981 non-
solicitation agreement between pearson and a&a was enforce-
able by aon following pearson’s resignation in 2001. to resolve
this question, we must determine (1) whether, as the district
court held, the agreement became an asset of aon by virtue of
the merger with a&a and, if so, (2) whether the agreement was
reasonable with respect to the nature and scope of the restric-
tions it imposed upon pearson.
(a) effect of Merger
pearson and Midlands argue that a&a’s rights under the non-
solicitation agreement were not assignable and that therefore,
aon had no right to enforce the agreement. aon argues, and
the district court held, that it acquired the right to enforce the
agreement by operation of law as a result of the 1997 merger.
the record includes documents pertaining to the merger which
were received without objection. the “agreement and plan of
Merger” expressly states that it is to be governed by the law of
the state of Maryland, specifically the “General Corporation
Law of the state of Maryland.” the receipt of this evidence
placed pearson on notice that Maryland law governed the
merger, and we therefore take judicial notice of the law of
that state.9
the merger agreement specifically provides that the “[m]erger
shall have the effects set forth in section 3-114 of the [Maryland
statutes].” under that statute, the assets of each party to the
merger “transfer to, vest in, and devolve on the successor
7 Jackson v. Brotherhood’s Relief & Comp. Fund, 273 Neb. 1013, 734 N.W.2d
739 (2007); Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 791
(2002).
8 Id.
9 see Neb. rev. stat. §§ 25-12,101 to 25-12,107 (reissue 1995).

without further act or deed.”10 “assets” in this context are
defined as “any tangible, intangible, real, or personal property
or other assets, including goodwill and franchises.”11 although
no reported Maryland decision has applied these statutes to the
question presented here, other state courts applying similar stat-
utory language have concluded that a covenant not to compete is
an asset which is transferred to and vests in the surviving entity
of a merger by operation of law.12 In UARCO Inc. v. Lam,13 the
applicable Hawaii statute provided that after a statutory merger,
the surviving corporation possessed “‘all of the rights, privi-
leges, immunities, and franchises.’” the court held that under
this statute, a successor corporation could enforce a noncom-
petition agreement entered into by the corporation acquired by
merger. the court reasoned that although such agreements were
not assignable under Hawaii law, the enforcement right of the
successor corporation passed by operation of law.
similarly, in Corporate Exp. Office Products v. Phillips,14 the
applicable statute provided that after a merger, “‘[t]he title to all
real estate and other property, or any interest therein, owned by
each corporation party to the merger is vested in the surviving
corporation without reversion or impairment.’” based on this
language, the court concluded:
[t]he surviving corporation in a merger assumes the right
to enforce a noncompete agreement entered into with
an employee of the merged corporation by operation of
law, and no assignment is necessary. this is because in a
merger, the two corporations in essence unite into a single
corporate existence.15
10 see Md. Code ann., Corps. & assns. § 3-114(e) (LexisNexis 2007).
11 see Md. Code ann., Corps. & assns. § 1-101(d) (LexisNexis 2007).
12 UARCO Inc. v. Lam, 18 F. supp. 2d 1116 (D. Haw. 1998); Corporate
Exp. Office Products v. Phillips, 847 so. 2d 406 (Fla. 2003); Alexander &
Alexander, Inc. v. Koelz, 722 s.W.2d 311 (Mo. app. 1986).
13 UARCO Inc. v. Lam, supra note 12, 18 F. supp. 2d at 1122.
14 Corporate Exp. Office Products v. Phillips, supra note 12, 847 so. 2d at
413.
15 Id. at 414.
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Likewise, in Alexander & Alexander, Inc. v. Koelz,16 the court
reasoned that after a statutory merger, the surviving corpora-
tion succeeded to all the rights and liabilities of the preceding
corporation under the applicable statutes, and thus the survivor
could enforce a noncompetition agreement.
pearson urges that we follow the reasoning of Smith, Bell &
Hauck v. Cullins.17 In that case, the supreme Court of Vermont
held that the purchaser of the assets of an insurance agency
could not enforce an agreement not to compete between the for-
mer owner and an employee. a Vermont statute provided that in
the event of a transfer of assets by sale, merger, or consolidation
of different corporate entities, the acquiring corporation “shall
possess all the rights, privileges and benefits of the original
corporation properly exercisable under the laws of [Vermont].”18
the court reasoned that because the agreement was personal
to the original parties, it was incapable of effective assignment
and therefore not “properly exercisable” by the new owner
under Vermont law. We are not persuaded by this reasoning,
primarily because the Vermont statute differs substantially from
the Maryland statute which governs the effect of the corporate
merger by which aon acquired a&a.
We agree with those cases which hold, under statutes similar
to Maryland’s, that a covenant not to compete is an asset of a
corporation which passes by operation of law to a successor
corporation as the result of a merger, regardless of whether the
agreement would otherwise be assignable. accordingly, by vir-
tue of the merger, aon succeeded to a&a’s right to enforce its
nonsolicitation agreement with pearson.
16 Alexander & Alexander, Inc. v. Koelz, supra note 12. see, also, Equifax
Services, Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir. 1990) (holding
that after merger, surviving corporation “automatically succeeds to the
rights of the merged corporations to enforce employees’ covenants not to
compete”).
17 Smith, Bell & Hauck v. Cullins, 123 Vt. 96, 183 a.2d 528 (1962).
18 Id. at 100, 183 a.2d at 531, citing Vt. stat. ann. tit. 11, §§ 161 and 165
(1958).

(b) scope and reasonableness of Nonsolicitation agreement
[7] approaching the issue of enforceability from a dif-
ferent perspective, Midlands argues that the nonsolicitation
agreement was unenforceable under Nebraska law because it
imposes broader restrictions than our law permits. In determin-
ing whether a covenant not to compete is valid, a court consid-
ers whether the restriction is (1) reasonable in the sense that it
is not injurious to the public, (2) not greater than is reasonably
necessary to protect the employer in some legitimate interest,
and (3) not unduly harsh and oppressive on the employee.19
[8-10] an employer has a legitimate business interest in pro-
tection against a former employee’s competition by improper
and unfair means, but is not entitled to protection against
ordinary competition from a former employee.20 to distinguish
between “ordinary competition” and “unfair competition,” we
have focused on an employee’s opportunity to appropriate
the employer’s goodwill by initiating personal contacts with
the employer’s customers.21 Where an employee has substan-
tial personal contact with the employer’s customers, develops
goodwill with such customers, and siphons away the goodwill
under circumstances where the goodwill properly belongs to
the employer, the employee’s resultant competition is unfair and
the employer has a legitimate need for protection against the
employee’s competition.22
the nonsolicitation agreement signed by pearson did not
prevent him from engaging in “ordinary competition” with aon
after leaving its employment. It only prevented him from busi-
ness contacts with those customers with whom he had personal
business dealings during the last 2 years of his employment
with aon. the agreement was properly focused on the legiti-
mate purpose of protecting aon’s goodwill with its customers.
19 Mertz v. Pharmacists Mut. Ins. Co., 261 Neb. 704, 625 N.W.2d 197
(2001).
20 Professional Bus. Servs. v. Rosno, 256 Neb. 217, 589 N.W.2d 826 (1999);
Moore v. Eggers Consulting Co., 252 Neb. 396, 562 N.W.2d 534 (1997).
21 see, id.; Boisen v. Petersen Flying Serv., 222 Neb. 239, 383 N.W.2d 29
(1986).
22 Id.
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We conclude that the nonsolicitation agreement was reason-
able in the sense that it is not injurious to the public, not
greater than reasonably necessary to protect aon’s legitimate
interest in retaining the goodwill of its customers with whom
pearson dealt personally, and not unduly harsh and oppressive
on pearson. accordingly, we conclude that the agreement was
enforceable under Nebraska law.
(c) Consideration
Midlands also argues that the nonsolicitation agreement was
invalid for lack of consideration. It notes that pearson was
already employed by a&a when he signed the agreement
and that he did not receive any bonus or additional compen-
sation for doing so. Midlands argues that pearson’s contin-
ued employment after signing the agreement did not constitute
adequate consideration.
[11] We need not address this specific argument, because
we conclude that the nonsolicitation agreement recites other
consideration. Generally, sufficient consideration for an agree-
ment will be found if there is some benefit to one of the parties
or a detriment to the other.23 In the nonsolicitation agreement,
a&a undertook to pay severance compensation in the event
that pearson left its employment for reasons other than death,
disability, or retirement. this undertaking constituted a benefit
to pearson and a detriment to a&a which would not otherwise
have existed in their employment relationship. the fact that
pearson claims not to have received a severance payment fol-
lowing termination does not alter the fact that a&a’s agreement
to make such payment constituted valid consideration for the
nonsolicitation agreement.
(d) summary
For the reasons discussed, we conclude that the nonsolici-
tation agreement between pearson and a&a was valid under
Nebraska law and that the right to enforce the agreement passed
to aon by operation of law when it acquired a&a by merger.
It is undisputed that almost immediately upon leaving aon’s
23 Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998).

employment, pearson became employed by Midlands and solic-
ited business from aon customers with whom he had personal
business dealings within the last 2 years of his employment
with aon. accordingly, the district court did not err in grant-
ing partial summary judgment in favor of aon as to pearson’s
liability for breach of the nonsolicitation agreement.
2. dAmAGes
both pearson and aon assign error with respect to aspects of
the district court’s calculation of damages. because the issues
are interrelated, we address them together.
(a) General principles
[12-14] Certain general principles apply to aon’s claimed
loss of profits resulting from pearson’s breach of the non-
solicitation agreement. In a breach of contract case, the ulti-
mate objective of a damages award is to put the injured party
in the same position the injured party would have occupied if
the contract had been performed, that is, to make the injured
party whole.24 one injured by a breach of contract is entitled to
recover all its damages, including the gains prevented as well
as the losses sustained, provided the damages are reasonably
certain and such as might be expected to follow the breach.25
While damages need not be proved with mathematical certainty,
neither can they be established by evidence which is speculative
and conjectural.26
(b) Damages Limited to 2-year period
aon assigns error to the district court’s determination that
evidence regarding damages allegedly incurred more than 2
years after pearson’s breach of the nonsolicitation agreement
would be speculative and irrelevant and, therefore, inadmis-
sible. In response to this ruling, aon made an offer of proof
24 Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001);
Ruble v. Reich, 259 Neb. 658, 611 N.W.2d 844 (2000).
25 Nebraska Nutrients v. Shepherd, supra note 24; Gagne v. Severa, 259 Neb.
884, 612 N.W.2d 500 (2000).
26 J.D. Warehouse v. Lutz & Co., 263 Neb. 189, 639 N.W.2d 88 (2002); Home
Pride Foods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001).
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establishing that aon has retained 95 percent of its customers
each year since 2001 and that the losses caused by pearson’s
breach could be expected to occur at least through the year
2005. the district court again ruled that evidence of damages
beyond the 2-year period was speculative and inadmissible. It
sustained pearson’s objection to an offer of evidence showing
aon’s claimed lost profits in the years 2004 to 2006.
[15] a trial court has the discretion to determine the rele-
vancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion.27 pearson would have been free to solicit
business from aon customers after the 2-year restricted period,
and there is evidence in the record that customers can change
brokers whenever they choose to do so, without prior notice.
We conclude that the district court did not abuse its discretion
in holding that evidence of lost profits beyond the 2-year period
was speculative and, therefore, irrelevant and inadmissible.
(c) testimony of Dennis r. Hein
Dennis r. Hein is a certified public accountant who testified
as an expert witness on behalf of aon. pearson assigns error by
the district court in overruling his motion in limine and receiv-
ing, over pearson’s foundational objections, Hein’s opinions
with regard to lost profits.
Hein testified that he reviewed aon’s financial documents
for the years 2000 to 2002. He attempted to determine what
revenues were taken away by pearson during 2002 and 2003
and what effect expenses had on those revenues. In calculat-
ing expenses, he focused on those that he opined would vary
directly with the production of business, including items such as
entertainment, lodging, travel, public relations, postage, office
supplies, and printing. He found that aon’s average expense
ratio for these variable items in the years 2000 to 2002 was
3.72 percent of its revenues. to be conservative, he rounded this
figure up to 6 percent.
27 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).

to calculate the revenue lost when the aon customers fol-
lowed pearson to Midlands, Hein looked at aon’s average
growth rate of 4.76 percent in the years 2000 to 2002. He
rounded that number down to 4 percent, and then multiplied
the total revenues generated to aon in 2001 by the customers
pearson took to Midlands by that percentage. after determin-
ing this sum, he subtracted 6 percent to represent the additional
expenses aon would have incurred in generating the revenue.
His calculation resulted in a net lost profit to aon in 2002 of
$199,683. Hein conducted a similar analysis for 2003 and deter-
mined that the 2003 lost profits were $207,671. Hein’s opinions
with respect to lost profits were based upon a reasonable degree
of professional certainty as a certified public accountant.
on cross-examination, Hein testified that in performing his
calculations, he considered all of aon’s actual expenses. He
essentially stated that aon’s fixed costs would have remained
the same with respect to the additional revenue, because aon
had employees capable of handling the increased revenue vol-
ume. thus, Hein reasoned that the only additional expenses
aon would have incurred in generating the income were
those that he identified as accounting for 6 percent of the
revenue generated.
[16,17] pearson argues that the trial court failed to properly
perform its “gatekeeper” function and that Hein’s methodology
was suspect because he failed to include all relevant expenses.
We held in City of Lincoln v. Realty Trust Group28 that not every
attack on expert testimony amounts to a claim under Daubert
v. Merrell Dow Pharmaceuticals, Inc.,29 and Schafersman v.
Agland Coop.30 pearson’s motion in limine and objections dur-
ing trial did not raise a Daubert/Schafersman issue. What
pearson really is asserting is an attack on the factual basis of
the opinion, a criticism that goes to its weight, not its admis-
sibility. the admission of expert testimony is ordinarily within
28 City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432
(2005).
29 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 u.s. 579, 113 s. Ct.
2786, 125 L. ed. 2d 469 (1993).
30 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
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the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion.31 We conclude that the district court did
not err in receiving Hein’s opinions regarding damages over
pearson’s objections.
(d) Calculation of Damage award
both pearson and aon assign error to the district court’s
determination that aon sustained damages in the amount of
$123,063. additional portions of the record bear on our review
of this issue.
to rebut Hein’s testimony, pearson offered the expert tes-
timony of David C. riley, also a certified public accountant.
riley disagreed with Hein’s methodology and opined that the
proper method of calculating damages was to consider aon’s
percentage increase in expenses during the years 2000 to 2002.
according to riley, Hein did not follow generally accepted prin-
ciples of accounting and failed to properly calculate aon’s lost
profits. riley calculated that in the years 2001 to 2003, aon had
an average net profit percent of 6.57 percent. When he applied
that percentage to the revenues lost by aon, he determined that
aon’s lost profits “attributable to” pearson were $28,457.
pearson testified at trial that no more than 80 percent of the
revenue he generated for Midlands in 2002 and 2003 came from
former aon customers. He had earlier testified in his deposition
that approximately 75 percent of the revenue came from aon
customers. evidence was received, without objection, detailing
the amount of compensation pearson received from Midlands
in the years 2001 to 2003. an exhibit was received without
objection which purported to show the revenue generated by
pearson for Midlands with respect to the customers pearson had
formerly serviced at aon.
In its order of judgment, the district court found that the “best
evidence” of revenues actually lost to aon due to pearson’s
actions was pearson’s “testimony relative to his commissions
while at Midlands.” the court therefore “reject[ed] opinions of
the experts of the parties as to projected lost revenues and/or
31 In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007); Ford v.
Estate of Clinton, 265 Neb. 285, 656 N.W.2d 606 (2003).

profits.” However, the court expressly accepted Hein’s opinion
that aon would have incurred additional expenses servicing the
customers and that those expenses would equal 6 percent of the
gross revenues generated by pearson. the court also specifically
found that as of January 1, 2002, aon had sufficient personnel
to service the customers that pearson took to Midlands.
the district court then calculated lost profits in a manner
that differed from either method used by the parties’ experts.
the court first determined the actual revenues lost to aon. It
reached this sum by multiplying pearson’s actual compensa-
tion for the years 2002 and 2003 by 2, based on the undisputed
evidence that pearson was paid 50 percent of all revenues he
generated. then, the court multiplied this sum by 80 percent,
based on pearson’s testimony that approximately 80 percent
of the revenue he generated at Midlands came from former
aon customers.
the court then multiplied the revenues lost by 6 percent to
determine what additional expenses would have been incurred
in generating those revenues. once these numbers were deter-
mined, the court (1) added the additional revenues into the
actual operating revenues for aon for the year in question, (2)
added the additional expenses into the actual expenses incurred
by aon for the year in question, and (3) determined what the
profit/expense ratio was for the year in question. after deter-
mining this ratio, the court applied it to the additional revenues
generated by pearson and arrived at a lost profit figure of
$53,958 for 2002 and a figure of $92,141 for 2003. because
the nonsolicitation agreement would have expired in september
2003, the court reduced the 2003 amount by 25 percent and
concluded that aon’s total lost profits were $123,063.
both aon and pearson assert that the trial court erred in
its calculations. pearson argues that Hein’s 6-percent variable
expense estimate was not based on the evidence, and aon con-
tends that the court erred in accessing the 6-percent variable
twice. We conclude that neither is correct. there is evidence in
the record to support Hein’s conclusion that aon would only
have incurred an additional 6 percent in “variable” expenses in
generating the additional revenue. Hein gave a reasoned basis
for his calculations, and the district court explicitly found that
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660 	275 Nebraska reports
aon had personnel in place to service the additional revenue so
that no allocation needed to be made for items such as salary and
benefits. based upon our review of the record, we find no merit
in pearson’s argument that the district court improperly calcu-
lated expenses in arriving at its finding of lost net profits.
[18] there is no precise formula for determining lost profits,
and the only requirement in Nebraska is that the calculation
be supported by some financial data which would permit an
estimate of the actual loss to be made with reasonable certi-
tude and exactness.32 We conclude that the record is sufficient
to support the method of calculating damages utilized by the
district court.
3. B reACH of fiduCiAry duty C lAim
In its cross-appeal in case No. s-07-034, aon assigns and
argues that the district court erred in granting summary judg-
ment in favor of pearson on aon’s claim that pearson breached
his fiduciary duty as an officer of aon and in dismissing that
claim. aon contends that pearson breached fiduciary duties
of good faith and loyalty because he failed to alert aon to
Dorenbach’s plans to leave her employment with aon and solicit
some of its customers on behalf of Midlands. In aon’s second
amended petition, it alleged that pearson planned both his and
Dorenbach’s departure from aon “in such a manner so as to
solicit and divert customers of [aon] prior to their termina-
tion from employment.” the record is clear that these alleged
breaches could not have occurred any earlier than June 2001,
as that is the date that pearson and Dorenbach first discussed
leaving their positions at aon. the district court did not disclose
its reasons for granting pearson’s motion for summary judgment
on this issue.
[19-21] aon’s brief relies exclusively on Nebraska law. In
Nebraska, an officer must comply with all applicable fiduciary
duties when dealing with the corporation and its shareholders.33
Nominal corporate officers, with no management authority,
32 see Home Pride Foods v. Johnson, supra note 26.
33 see, Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004); Anderson
v. Bellino, 265 Neb. 577, 658 N.W.2d 645 (2003).

generally do not owe fiduciary duties to the corporation.34
However, “an officer who participates in management of the
corporation, exercising some discretionary authority, is a fidu-
ciary of the corporation as a matter of law.”35
pearson became a vice president of a&a in 1990 and
assumed management duties at that time, which included man-
agement of the company’s Lincoln office and later the omaha
office as well. His duties included supervising sales personnel,
developing budgets, and hiring and firing employees. after the
merger of a&a and aon in 1997, pearson was designated as a
vice president of aon by the company’s board of directors. He
initially performed the same management duties for aon. In
March 2001, aon relieved pearson of all managerial duties, but
he retained the title of vice president.
the alleged breaches of pearson’s fiduciary duty all occurred
after March 2001. thus, assuming that he owed fiduciary duties
to aon at the time he exercised managerial discretion, the issue
before us is whether his fiduciary obligation continued when his
managerial duties ceased. restated, the question is, Was pearson
a fiduciary when he retained the title of a corporate officer but
no longer exercised discretionary management authority?
there is little legal authority on this issue. one court has
adopted the general rule that once a fiduciary duty exists, it
does not cease when managerial duties cease, noting “[e]ven
when an officer loses power or authority, that officer still owes
a fiduciary duty to the corporation. to divest himself or herself
of the duty, the officer must resign the office.”36 We find this
rule unpersuasive for two reasons. First, the authority cited in
34 3 William Meade Fletcher, Fletcher Cyclopedia of the Law of private
Corporations § 837.50 (perm. ed., rev. vol. 2002 & Cum. supp. 2007). see
Neb. rev. stat. § 21-2099 (reissue 1997). see, also, GAB v. Lindsey &
Newsom Claim Services, 83 Cal. app. 4th 409, 99 Cal. rptr. 2d 665 (2000),
disapproved on other grounds, Reeves v. Hanlon, 33 Cal. 4th 1140, 95 p.3d
513, 17 Cal. rptr. 3d 289 (2004).
35 GAB v. Lindsey & Newsom Claim Services, supra note 34, 83 Cal. app. 4th
at 420-21, 99 Cal. rptr. 2d at 672. see, § 21-2099; 3 Fletcher, supra note
34.
36 GAB v. Lindsey & Newsom Claim Services, supra note 34, 83 Cal. app. 4th
at 421, 99 Cal. rptr. 2d at 673.
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support of this rule does not involve corporate officers and is
distinguishable from the instant case.37 second, the stated ration-
ale for the rule is the agency principle of apparent authority, a
principle that is not at issue in the instant case.38
We are more persuaded by decisions from other jurisdictions
holding that the existence of a fiduciary duty of an officer in
a closely held corporation “depends on the ability to exercise
the status which creates it.”39 these courts conclude that when
a corporate officer loses managerial responsibilities, the cor-
responding fiduciary duty ceases to exist.40 although aon is not
a closely held corporation, we find that this rule is applicable
to the facts of the instant case and is consistent with § 21-2099.
pearson exercised low-level, local management authority in a
large corporation. this authority was taken away from him in
March 2001, and at that point, he was simply one of hundreds
of aon vice presidents. at the time of pearson’s alleged breach,
he had no involvement in the management and operation of
the corporation beyond his own production. We conclude that
pearson owed no fiduciary duty to aon at the time the alleged
breach of the duty occurred, and thus the district court properly
granted summary judgment in his favor on this claim.
4. tortious interferenCe witH B usiness relAtionsHip
[22] In case No. s-06-1256, aon contends that the district
court erred in directing a verdict in favor of Midlands on aon’s
claim that Midlands tortiously interfered with its contract with
pearson. to succeed on a claim for tortious interference with a
37 Rader v. Thrasher, 57 Cal. 2d 244, 368 p.2d 360, 18 Cal. rptr. 736 (1962)
(referencing duties owed by attorney to client after client expresses disap-
proval of attorney’s actions); Vai v. Bank of America, 56 Cal. 2d 329, 364
p.2d 247, 15 Cal. rptr. 71 (1961) (holding spouses owe reciprocal fiduciary
duties with respect to undivided community property); Sime v. Malouf, 95
Cal. app. 2d 82, 212 p.2d 946 (1949) (holding cojoint venturers owed each
other fiduciary duties).
38 see GAB v. Lindsey & Newsom Claim Services, supra note 34.
39 J Bar H, Inc. v. Johnson, 822 p.2d 849, 861 (Wyo. 1991) (emphasis omit-
ted). see Voss Engineering v. Voss Industries, 134 Ill. app. 3d 632, 481
N.e.2d 63, 89 Ill. Dec. 711 (1985).
40 Id.

business relationship or expectancy, a plaintiff must prove (1)
the existence of a valid business relationship or expectancy, (2)
knowledge by the interferer of the relationship or expectancy,
(3) an unjustified intentional act of interference on the part of
the interferer, (4) proof that the interference caused the harm
sustained, and (5) damage to the party whose relationship or
expectancy was disrupted.41
We have concluded that the nonsolicitation agreement between
aon and pearson was valid and enforceable, and there is no
dispute that representatives of Midlands were made aware of
the agreement prior to hiring pearson in september 2001. by
January 2002 at the latest, Midlands knew that pearson was
soliciting business on its behalf from customers he had served
while employed by aon. the key issue is whether the district
court erred in determining that there was no evidence to support
a finding that Midlands’ hiring and continued employment of
pearson with such knowledge constituted an “unjustified inten-
tional act of interference.”
[23] Factors to consider in determining whether interfer-
ence with a business relationship is “improper” include: (1)
the nature of the actor’s conduct, (2) the actor’s motive, (3) the
interests of the other with which the actor’s conduct interferes,
(4) the interests sought to be advanced by the actor, (5) the
social interests in protecting the freedom of action of the actor
and the contractual interests of the other, (6) the proximity or
remoteness of the actor’s conduct to the interference, and (7) the
relations between the parties.42
“the issue in each case is whether the interference is
improper or not under the circumstances; whether, upon
a consideration of the relative significance of the fac-
tors involved, the conduct should be permitted without
liability, despite its effect of harm to another. the deci-
sion therefore depends upon a judgment and choice of
values in each situation. this section states the important
factors to be weighed against each other and balanced in
41 see Macke v. Pierce, 266 Neb. 9, 661 N.W.2d 313 (2003), citing Huff v.
Swartz, 258 Neb. 820, 606 N.W.2d 461 (2000).
42 Macke v. Pierce, supra note 41.
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arriving at a judgment; but it does not exhaust the list of
possible factors.”43
[24] In this case, it is clear that pearson contacted Midlands
about employment and that Midlands neither solicited nor
recruited pearson. pearson informed Midlands of the non-
solicitation agreement, but at the same time, he told Midlands
that his attorney had given him an opinion that the agreement
was unenforceable. It is undisputed that Midlands did not
expect or require pearson to solicit customers he had served
while employed by aon and that he likely could have met the
Midlands’ production expectations without doing so. From this
record, the most that can be said is that Midlands hired an expe-
rienced individual who sought employment and relied in good
faith upon his representation that, according to his attorney, his
nonsolicitation agreement with a prior employer was unenforce-
able. In order to be actionable, interference with a business
relationship must be both intentional and unjustified.44 based
upon our review of the record, we conclude that the district
court did not err in determining that aon presented no evidence
to support a reasonable inference that Midlands intentionally
and unjustifiably interfered with its contractual relationship
with pearson.
V. CoNCLusIoN
For the reasons discussed, we affirm the judgment of dis-
missal in case No. s-06-1256. In case No. s-07-034, we affirm
the award of damages in favor of aon and affirm the partial
summary judgment in favor of pearson.
A ffirmed .
43 Huff v. Swartz, supra note 41, 258 Neb. at 829, 606 N.W.2d at 468, quoting
restatement (second) of torts § 767, comment b. (1979).
44 see Huff v. Swartz, supra note 41.