Pick v. Norfolk Anesthesia

such a particularized study would be necessary to accurately
access the machine’s margin of error. We find the evidence suf-
ficient to support the trial court’s determination that Kuhl was
driving while having a concentration of at least .08 of 1 gram
or more by weight of alcohol per 210 liters of his breath.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Court of Appeals affirming the judgment of the county court.
A ffirmed .
PICK v. NOrFOLK ANeSTHeSIA 	511
Cite as 276 Neb. 511
miChAel g. piCk et Al ., AppelleeS, v .
Norfolk ANeStheSiA, p.C., AppellANt .
755 N.W.2d 382
Filed September 5, 2008. 	No. S-07-264.
1. 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 erroneous.
2. ____: ____. In reviewing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the evidence in the light
most favorable to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference deducible
from the evidence.
3. Judgments: Statutes: Appeal and Error. When an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determination made by the
court below.
4. Employer and Employee: Employment Contracts: Wages. A payment will be
considered a wage subject to the Nebraska Wage Payment and Collection Act if
(1) it is compensation for labor or services, (2) it was previously agreed to, and
(3) all the conditions stipulated have been met.
5. ____: ____: ____. Absent an express agreement otherwise, an employee ordi-
narily forfeits the right to receive a bonus by resigning before the corresponding
bonus period ends.
Appeal from the District Court for Madison County: pAtriCk
g. rogerS, Judge. reversed.
David r. buntain, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

ronald e. Temple, of Fitzgerald, Vetter & Temple, for
appellees.
heAviCAN, C.J., C oNNolly, gerrArd, S tephAN, mCC ormACk,
and miller -lermAN, JJ.
heAviCAN, C.J.
INTrODUCTION
Seven nurse anesthetists sued Norfolk Anesthesia, P.C., their
former employer, seeking unpaid bonuses under the Nebraska
Wage Payment and Collection Act (NWPCA). The nurse anes-
thetists, all of whom resigned on September 16, 2005, claim
that Norfolk Anesthesia violated the NWPCA when it failed
to pay them their annual bonuses. A bench trial was held in
the district court for Madison County and ultimately resulted
in a judgment in favor of the nurse anesthetists. The court
awarded the nurse anesthetists damages and attorney fees.
Norfolk Anesthesia now appeals. We reverse for reasons set
forth below.
bACKGrOUND
Norfolk Anesthesia was formed in 1995 by Dr. James bertus.
Dr. Cynthia Ferris joined the practice later that year, as did the
seven nurse anesthetists in this case. In 1996, Ferris became a
shareholder of the company. Dr. Chris Price joined the practice
in 2003. Price joined the practice as an employee and did not
become an actual shareholder until 2004.
Since its inception, Norfolk Anesthesia had a practice of
paying out annual bonuses to physicians and nurse anesthe-
tists. Until 2004, all of the bonuses were distributed at the
company’s annual holiday party which was held sometime after
Thanksgiving and before Christmas.
In 2004, bertus left Norfolk Anesthesia. The company bought
out bertus’ shares, and Price replaced bertus as co-owner of
Norfolk Anesthesia with Ferris. Shortly after Price became a
shareholder, he suggested that the physicians take their bonuses
on a quarterly, rather than annual, basis. Ferris agreed. The
nurse anesthetists continued to receive their bonuses on an
annual basis at the company’s holiday party.
512 	276 NebrASKA rePOrTS

On August 31, 2005, Price left Norfolk Anesthesia, making
Ferris the sole remaining shareholder. There is some evidence
that Price’s decision to leave was brought about by a personal
rift with Ferris. The company bought out Price’s interest for an
undisclosed amount. On September 2, 2 days after Price left,
the seven nurse anesthetists collectively notified Ferris of their
intent to resign effective September 16. At the time of their
departure, the full-time nurse anesthetists were earning roughly
$120,000 per year before bonuses. Ferris was the sole remain-
ing employee in the office after the nurse anesthetists resigned,
and Norfolk Anesthesia wound up its operations shortly there-
after. Ferris did not pay the nurse anesthetists their annual
bonuses for 2005.
The 	nurse 	anesthetists 	filed 	an 	amended 	complaint 	on
January 3, 2007, seeking bonuses that had “accumulated and
accrued” by the time they resigned. A bench trial was held on
January 31. Testimony was presented by the seven nurse anes-
thetists, Ferris, and Lee brandt, the bookkeeper for Norfolk
Anesthesia. The nurse anesthetists testified that they were
promised a bonus in their initial oral employment agreement
with bertus. There was testimony from several nurse anesthe-
tists that pursuant to their agreement with bertus, the bonuses
came from the year-end profits of the company and were dis-
tributed at the company’s holiday party. Several of the nurse
anesthetists also testified that bonuses were dispersed on a 2:1
ratio such that the doctors would share two-thirds of the year-
end profits, while the remaining one-third was split among the
nurse anesthetists.
brandt, the bookkeeper, testified that after the physicians
switched to a quarterly bonus schedule, he began earmarking
funds each quarter for the nurse anesthetists’ year-end bonuses.
On brandt’s worksheets, the funds were labeled “CrNA bonus
Accrual.” (“CrNA” stands for “Certified registered Nurse
Anesthetist,” the formal name for nurse anesthetists like those
formerly employed at Norfolk Anesthesia.) brandt made two
such accruals for the first and second quarters of 2005, respec-
tively. As of March 2005, $40,000 was allocated for the nurse
anesthetists’ bonuses. Another accrual was entered on the June
2005 worksheet in the amount of $48,000.
PICK v. NOrFOLK ANeSTHeSIA 	513
Cite as 276 Neb. 511

brandt stated that earmarking the funds in this fashion
helped him keep track of the money that would eventually be
paid to the nurse anesthetists as part of their year-end bonuses.
brandt testified that Ferris knew of, but did not object to, his
decision to track the money in this manner. (Ferris testified that
she objected to brandt’s setting aside money in this fashion as
soon as she learned about it.)
brandt also testified that due to the buyout of Price’s inter-
est in Norfolk Anesthesia, the company did not have sufficient
profits to pay the $88,000 that had accrued for the nurse anes-
thetists’ bonuses. According to brandt, the buyout left the com-
pany with a mere $15,251 in profits as of September 15, 2005,
and paying $88,000 in accrued bonuses to the nurse anesthe-
tists would result in a loss of $72,749 to the company.
Ferris reaffirmed the idea that the physicians’ and nurse anes-
thetists’ bonuses were to be based on a 2:1 ratio from the year-
end profits of the company. However, Ferris denied the bonuses
were intended to enhance productivity. She also testified that
between 2001 and 2003, three employees—one physician and
two nurse anesthetists—left the company in the middle of the
calendar year. None of these individuals received a whole or
partial bonus even though, as the nurse anesthetists testified,
one of these employees specifically requested her bonus.
The district court issued its order on February 12, 2007. The
court found that in their verbal employment agreements with
Norfolk Anesthesia, each of the nurse anesthetists was prom-
ised an annual bonus from the corporation’s year-end profits.
The court also found that the bonuses were paid according to
the 2:1 ratio discussed earlier. It is not clear, however, whether
the court found that this specific ratio was part of the bonus
agreement between bertus and the nurse anesthetists. The court
did find, however, that there was no stated condition that the
nurse anesthetists had to remain on staff for the full year in
order to receive their bonuses. Instead, the court concluded that
the only stated condition was that the corporation had some
profit at the end of the year. As such, the court concluded the
bonuses were wages under the NWPCA.
While the court acknowledged that due to the buyout of
Price’s interest, the company had a profit of only $15,251 as of
514 	276 NebrASKA rePOrTS

September 2005, it refused to accept that number because “the
costs of buying out owners is not a proper deduction” to count
against a corporation’s profits. Finding no other evidence of
Norfolk Anesthesia’s actual net profits as of September 2005,
the court concluded that the nurse anesthetists were entitled to
the $88,000 in bonus accrual.
The court entered an award in the amount of $88,000 in
damages, with $13,333 to each of the six full-time nurse anes-
thetists and $8,002 to the lone part-time nurse anesthetist. The
court awarded an additional $3,333 in attorney fees to each of
the six full-time nurse anesthetists and $2,000 in attorney fees
to the part-time nurse anesthetist. Finally, the court ordered
Norfolk Anesthesia to pay court costs. Norfolk Anesthesia
appealed to the Court of Appeals, and we advanced the case to
our docket pursuant to our authority to regulate the caseloads
of the appellate courts of this state.1
ASSIGNMeNTS OF errOr
Norfolk Anesthesia assigns, restated, that the district court
erred when it (1) found that the nurse anesthetists were entitled
to payment of their annual bonuses for 2005 under the NWPCA
and (2) awarded the nurse anesthetists damages in the amount
of $88,000.
STANDArD OF reVIeW
[1,2] In a bench trial of a law action, the trial court’s fac-
tual findings have the effect of a jury verdict and will not be
disturbed on appeal unless clearly erroneous.2 In reviewing a
judgment awarded in a bench trial of a law action, an appel-
late court does not reweigh evidence, but considers the evi-
dence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence.3
1 See Neb. rev. Stat. § 24-1106(3) (reissue 1995).
2 Professional Bus. Servs. v. Rosno, 268 Neb. 99, 680 N.W.2d 176 (2004).
3 Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d
1 (2008).
PICK v. NOrFOLK ANeSTHeSIA 	515
Cite as 276 Neb. 511

[3] When an appeal calls for statutory interpretation or pre-
sents questions of law, an appellate court must reach an inde-
pendent, correct conclusion irrespective of the determination
made by the court below.4
ANALYSIS
[4] The NWPCA essentially permits an employee to sue his
or her employer if the employer fails to pay the employee’s
wages as they become due.5 “Wages” are defined as “compen-
sation for labor or services rendered by an employee, includ-
ing fringe benefits, when previously agreed to and conditions
stipulated have been met by the employee, whether the amount
is determined on a time, task, fee, commission, or other basis.”6
On the basis of this language, we have held that a payment will
be considered a wage subject to the NWPCA if (1) it is com-
pensation for labor or services, (2) it was previously agreed to,
and (3) all the conditions stipulated have been met.7 In Knutson
v. Snyder Industries, Inc.,8 we held that a bonus qualifies as
a wage subject to the NWPCA if these three criteria have
been satisfied.
The district court found—and the parties agree—that the
bonuses at issue were compensation for labor or services. The
parties dispute, however, whether such payment was previ-
ously agreed to and whether the conditions stipulated have
been met.
regarding the existence of an agreement, Norfolk Anesthesia
claims that there was no express agreement to pay bonuses.
but the nurse anesthetists all testified that an annual bonus
was part of an oral employment agreement entered into with
bertus when they were hired. The district court credited the
nurse anesthetists’ testimony and found that there was a prior
4 Id.; Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d
33 (2004).
5 See Neb. rev. Stat. § 48-1231 (reissue 2004).
6 Neb. rev. Stat. § 48-1229(4) (Supp. 2007).
7 See Knutson v. Snyder Industries, Inc., 231 Neb. 374, 436 N.W.2d
496 (1989).
8 Id.
516 	276 NebrASKA rePOrTS

agreement between the company and the nurse anesthetists
regarding an annual bonus in late November or early December
each year. Norfolk Anesthesia does not point to any evidence
which might show that the district court clearly erred in mak-
ing this determination.
This leaves only the third element—whether the conditions
stipulated have been met regarding payment of the bonuses to
the nurse anesthetists. The district court found that the only
express condition which would trigger Norfolk Anesthesia’s
obligation to pay the bonuses was that it had a profit at the
end of the year. As such, the court concluded that there was no
express condition that the nurse anesthetists stay on throughout
the entire year in order to receive the bonuses. Although we do
not quarrel with this factual finding, we disagree that the lack
of such an express condition is dispositive.
In Knutson, an employer, Snyder Industries, Inc., refused
to pay a bonus to an employee, Linda Knutson, who volun-
tarily resigned before receiving a bonus that she would have
received had she remained on staff. As is true here, Snyder
Industries’ sole reason for refusing to pay Knutson the bonus
was the fact she “was not employed at the time the bonus was
to be paid.”9 We rejected this justification and awarded Knutson
her bonus.
We recognized a distinction in Knutson between bonuses
designed to “improve productivity” and those intended to
“retain long-term employees.”10 Our conclusion that Knutson
was entitled to a bonus was, at least in part, based on the
fact that “the evidence in this case would support, if . . . not
compel, a finding that the purpose of the bonus plan was to
improve productivity.”11
[5] It is important to note, however, that Knutson did not
involve an unqualified annual bonus. Instead, an express part
of the bonus agreement was that the bonus would be paid
provided “a certain profit level was reached for the fiscal year
9 Id. at 375, 436 N.W.2d at 498.
10 Id. at 377, 436 N.W.2d at 499.
11 Id.
PICK v. NOrFOLK ANeSTHeSIA 	517
Cite as 276 Neb. 511

ending July 31, 1985.”12 While Knutson did not remain on staff
long enough to actually receive her bonus, “she was employed
at the end of the fiscal year.”13 Viewed in light of that fact,
Knutson does not disturb the commonsense notion that absent
an express agreement otherwise, an employee ordinarily for-
feits the right to receive a bonus by resigning before the cor-
responding bonus period ends.14
In Knutson, under the terms of the bonus agreement, the
bonus period began on January 15, 1985, and concluded
with the close of the company’s fiscal year on July 31. by
remaining on staff beyond July 31, Knutson fulfilled her obli-
gation to remain on staff throughout the bonus period. but
the same cannot be said here. All parties agree that this was
an annual bonus based on the year-end profits from that cal-
endar year and paid at the company’s holiday party between
late November and early December of each year. The rele-
vant bonus period, then, was from late November or early
December 2004 to late November or early December 2005.
Therefore, when the nurse anesthetists resigned in September
2005, they, unlike Knutson, failed to remain on staff for the
duration of the bonus period.
As noted above, an employee could still receive an annual
bonus despite a premature resignation if the employer expressly
promised to pay the bonus under such circumstances. but as
Norfolk Anesthesia points out, the nurse anesthetists have not
shown anything to suggest that anyone at Norfolk Anesthesia
made such a promise. We conclude, therefore, that the nurse
anesthetists lost their right to receive this bonus by resign-
ing prematurely.
CONCLUSION
We conclude that under these facts, the nurse anesthetists
forfeited their right to receive the annual bonus by resigning
before late November 2005, the earliest date on which the
12 Id. at 375, 436 N.W.2d at 498 (emphasis supplied).
13 Id.
14 Cf. Sinnett v. Hie Food Products, Inc., 185 Neb. 221, 174 N.W.2d 720
(1970).
518 	276 NebrASKA rePOrTS

bonus period for 2005 would have concluded. because there
was no express agreement by Norfolk Anesthesia to pay the
bonus despite such a premature resignation, we conclude that
the nurse anesthetists are not entitled to the annual bonus from
2005, and we reverse the district court’s judgment.
reverSed .
wright, J., not participating.
gerrArd, J., concurring.
I reluctantly concur in the result reached by the majority,
but write separately to make clear the basis for my conclusion
that the nurse anesthetists were not entitled to the annual bonus
under these circumstances.
According to the nurses anesthetists’ testimonies, their base
salary was generally considered insufficient and the year-end
bonus was intended to supplement this deficiency. Indeed, the
record indicates that at some point in May 2004, Ferris pre-
sented the nurse anesthetists with the option of increasing their
monthly salary and decreasing their year-end bonus. but, for
whatever unfortunate reason, the nurse anesthetists declined
this offer and instead chose to continue receiving a year-end
bonus based on the year-end profits from each calendar year.
Given these circumstances, it is apparent that employment
through the end of the bonus period was a known and negoti-
ated condition of receiving the bonus. And the nurse anesthetists
resigned on September 16, 2005, before the year-end bonuses
had been distributed, and before the end of the calendar year
upon which the bonuses were to be based on “year-end prof-
its.” because the nurse anesthetists were no longer employed
at the time the bonuses were to have been distributed, they did
not meet an essential employment condition of receiving the
bonuses. Therefore, I concur in the judgment.
PICK v. NOrFOLK ANeSTHeSIA 	519
Cite as 276 Neb. 511