Professional Mgmt. Midwest v. Lund Co.

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	777
Cite as 284 Neb. 777
ineffective assistance of trial counsel relating to the allegation
that counsel failed to utilize Harper’s alleged inconsistent state-
ment to Hayes that Poe was innocent.
CONCLUSION
We affirm the judgment of the trial court in all respects
except for the denial of an evidentiary hearing on the issue of
whether defense counsel was ineffective for failing to pursue
impeachment of Harper with his alleged inconsistent statement.
We reverse in part, and remand with directions to conduct an
evidentiary hearing on this issue.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
heAvicAn, C.J., not participating.
professionAl mAnAgement midwest, inc., et Al.,
AppellAnts, v. lund compAny, Appellee.
826 N.W.2d 225
Filed December 7, 2012. 	No. S-11-948.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. 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 that party the benefit of all reasonable inferences deducible
from the evidence.
3. Statutes: Actions: Torts: Negligence. Whether a statute includes an implied
right of action is distinct and separate from the issue whether a statute creates a
duty in tort which can be enforced via a negligence action.
4. Statutes: Actions: Legislature: Intent. Whether a statute creates a private right
of action depends on the statute’s purpose and whether the Legislature intended
to create a private right of action.
5. Actions: Legislature: Intent. Without legislative intent to create not just a
private right but also a private remedy, courts cannot create an implied cause of
action, no matter how desirable that might be as a policy matter or how compat-
ible with the statute.
6. Appeal and Error. The party appealing must point out the factual and legal
bases that show the error in the lower court’s decision.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

778 	284 NEBRASKA REPORTS
7. ____. An appellate court is not obligated to engage in an analysis that is not nec-
essary to adjudicate the case and controversy before it.
8. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
9. Summary Judgment: Evidence: Proof. After the movant for summary judg-
ment makes a prima facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law shifts to the party opposing
the motion.
10. 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 interfer-
ence 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.
11. 	Summary Judgment. In the summary judgment context, a fact is material only
if it would affect the outcome of the case.
12. Brokers: Real Estate: Words and Phrases. Broadly speaking, a broker is any
person who (1) negotiates or attempts to negotiate the listing, sale, purchase,
exchange, rent, lease, or option for any real estate or improvements thereon;
(2) assists in procuring prospects or holds himself or herself out as a referral
agent for the purpose of securing prospects for these purposes; (3) collects
rents or attempts to collect rents; (4) gives a broker’s price opinion or compara-
tive market analysis; or (5) holds himself or herself out as engaged in any of
the foregoing.
13. ____: ____: ____. A designated broker is an individual holding a broker’s
license who has full authority to conduct the real estate activities of a real
estate business.
14. Brokers: Words and Phrases. An associate broker is a person who has a bro-
ker’s license and who is employed by another broker to participate in any activity
in which a broker engages.
15. ____: ____. A salesperson is anyone employed by a broker who is not himself or
herself a licensed broker.
16. ____: ____. Associate brokers and salespersons under the supervision of a desig-
nated broker are called affiliated licensees.
17. ____: ____. Once engaged in a brokerage relationship with a client, the desig-
nated broker and affiliated licensees are called licensees.
18. Brokers: Agents: Words and Phrases. Within the context of a brokerage
relationship, which is an agency relationship, a licensee is the limited agent of
the client.
19. Real Estate: Agents: Words and Phrases. A single agent represents only one
party in a real estate transaction.

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	779
Cite as 284 Neb. 777
20. Real Estate: Agents. Unless there is an agreement specifically designating a
limited agent as a seller’s agent, a landlord’s agent, a subagent, or a dual agent,
the limited agent is considered a buyer’s or tenant’s agent.
21. Brokers: Agents: Words and Phrases. A dual agent has entered into a brokerage
relationship with and therefore represents both the seller and buyer or both the
landlord and tenant.
22. Brokers: Agents. A designated broker is not considered to be a dual agent even
though his or her affiliated licensees represent parties on both sides of the trans-
action so long as the broker exercises his or her powers to appoint in writing
those affiliated licensees who will be acting as limited agents of the client to the
exclusion of all other affiliated licensees.
23. Brokers: Agents: Words and Phrases. A subagent is a designated broker,
together with his or her affiliated licensees, engaged by another designated broker
to act as a limited agent for a client.
24. Brokers. According to Neb. Rev. Stat. § 76-2423(1) (Reissue 2009), the fiduciary
relationship between a broker and client shall commence at the time that the
licensee begins representing a client and continue until performance or comple-
tion of the representation.
25. Statutes: Legislature: Intent. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions are consistent, harmonious, and sensible.
26. Brokers: Agency. A brokerage relationship is a limited agency relationship.
27. Brokers: Statutes. With certain exceptions, the statutes governing brokerage
relationships supersede any common-law duties and responsibilities of brokers,
including those of a fiduciary nature.
28. Brokers. A broker’s commission generally becomes payable on completion of the
transaction which the broker was employed to negotiate, unless there is a stipula-
tion in the contract of employment to the contrary.
Appeal from the District Court for Douglas County: J
russell derr, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellants.
Jennifer D. Tricker and Robert A. Stark, of Baird Holm,
L.L.P., for appellee.
heAvicAn, c.J., wright, connolly, stephAn, and cAssel, JJ.
cAssel, J.
I. INTRODUCTION
Professional Management Midwest, Inc. (PMMI), and two
of its officers brought suit against Lund Company (Lund), a

780 	284 NEBRASKA REPORTS
brokerage firm, to recover damages that allegedly resulted
when the president of PMMI independently engaged Lund’s
services to locate and lease new office space while PMMI was
still liable under a previous lease, which PMMI later breached.
The district court granted summary judgment in favor of Lund
after concluding, for various reasons, that the brokerage com-
pany was not liable to PMMI for engaging in such actions
under the theories of inducement, tortious interference, or
negligence. Finding no error in the district court’s judgment,
we affirm.
II. BACKGROUND
PMMI is a corporation that provides health care management
consulting in Nebraska and neighboring states. At all times
relevant to this case, Donald Pedersen, James W. Huntington,
and Tony C. Clark were the sole officers and shareholders
of PMMI. For several years, Pedersen served as president of
the corporation.
In 2005, PMMI leased office space at 4905 South 107th
Avenue, Omaha, Nebraska (107th Avenue property), from
William and Mary Doucette, the landlords of the 107th
Avenue property. Alvin Shipps and Mark Thurber served as
real estate agents for PMMI in the transaction. Both Shipps
and Thurber were affiliated with Lund. Mark Covert, also
an agent at Lund, served as both listing agent and property
manager for the Doucettes. Pedersen, as PMMI’s president,
initially signed a “Standard Intent to Lease Agreement,”
which set forth the terms of the proposed lease. On behalf
of PMMI, Pedersen later signed a business property lease for
the 107th Avenue property (107th Avenue lease). The lease
was for a term of 5 years 1 month, to begin on September
15, 2005. The lease provided that PMMI would be held in
default or breach of the lease if, among other things, it failed
to pay rent when due or vacated or abandoned the premises.
Upon default, the Doucettes would be allowed to retake the
premises, terminate the lease, and recover from the tenant all
damages proximately resulting from the breach. Pedersen,
Huntington, and Clark signed personal guarantees as part of
the 107th Avenue lease.

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	781
Cite as 284 Neb. 777
Sometime in late 2006, PMMI began having trouble mak-
ing timely rent payments under the 107th Avenue lease. These
financial troubles ultimately motivated Pedersen to contact
Shipps for help in finding cheaper office space, and on January
17, 2007, Pedersen signed a lease, in his personal capacity, for
office space at 11711 Arbor Street, Suite 215, in Omaha (Arbor
Street property). Immediately upon signing the lease, Pedersen
moved PMMI’s equipment and staff from the 107th Avenue
property to the Arbor Street property.
Once Covert learned that PMMI had vacated the 107th
Avenue property, he sent a letter to Pedersen to “remind”
him that PMMI was obligated under the lease until October
15, 2010. Covert had previously sent Pedersen a notice of
default on January 22, 2007. On February 7, Covert prepared a
“Commercial Tenant’s Notice to Vacate” and sent the notice to
his superiors at Lund, informing them that PMMI had vacated
the 107th Avenue property effective February 1. At some point
around this time, Pedersen tendered his 107th Avenue prop-
erty keys to Covert. However, in a February 20 letter, Covert
stated: “Landlord has not accepted surrender of the Premises.
The payment of your rental obligations shall be required for the
remaining term of the lease.”
Soon thereafter, the Doucettes filed a complaint against
PMMI, Pedersen, Huntington, and Clark to collect damages
for breach of the 107th Avenue lease. In the district court’s
ultimate ruling on the Doucettes’ complaint, it found that
PMMI breached the lease and that Pedersen, Huntington, and
Clark were joint and several guarantors but entered judg-
ment against Pedersen alone in the amount of $96,971.50.
The court dismissed the Doucettes’ claim against Huntington
and Clark with prejudice. Nevertheless, in April or May
2007, Huntington and Clark each individually paid $20,000 to
the Doucettes.
Following the district court’s June 2008 finding that PMMI
breached the 107th Avenue lease but prior to the judgment
against Pedersen in April 2010, PMMI, Huntington, and Clark
(collectively appellants) initiated the instant case against Lund
for inducement to breach a lease, tortious interference with a
business relationship, and negligence.

782 	284 NEBRASKA REPORTS
Lund filed a motion for summary judgment in February
2011, and both parties adduced evidence at a hearing on
March 18.
On October 18, 2011, the district court granted the motion
for summary judgment. The court made findings related to
the scope of Lund’s liability, whether there was inducement
to breach a lease, whether there was tortious interference, and
Lund’s duty to appellants for purposes of negligence. We sum-
marize only those findings of the court with which appellants
take issue.
The district court first considered whether there was a
private right of action for inducement to breach. Appellants
alleged that such a right of action was created by Neb. Rev.
Stat. § 81-885.24(13) (Reissue 2008), which gives the State
Real Estate Commission power to censure, suspend the license
of, or impose a civil fine on a licensed broker if he or she has
been found guilty of “[i]nducing any party to a contract of sale
or lease to break such contract for the purpose of substitut-
ing, in lieu thereof, a new contract with another principal.”
Appellants had argued to the court that a violation of this
licensure statute could be used to prove breach in the same
manner that violation of a traffic law could be used to establish
negligence of the driver. The court did not accept this reason-
ing. It stated:
First, with regard to the alleged “inducement,” this
case does not involve a claim of negligence. Both cases
cited by [appellants] are negligence cases. Second, this is
a code of conduct established by the [State] Real Estate
Commission for real estate agents and brokers. Violation
can lead to discipline, but there is nothing in Nebraska
law that would allow an individual to bring a private
civil action against an agent or broker for violation of
this prohibition.
Despite having found that there was no private right of
action for inducement to breach, the district court engaged in a
factual analysis of this claim and concluded that Lund did not
engage in any actions which would constitute inducement.
The district court similarly found that Lund did not engage
in actions which would constitute tortious interference, because

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	783
Cite as 284 Neb. 777
there was no “unjustified intentional act on the part of Lund
and/or any of its agents.” The court concluded that there was
“no evidence to support this allegation.”
Finally, the district court discussed whether Lund owed a
duty to appellants at the time of PMMI’s breach in 2007. The
court determined that Lund owed no duty to Huntington or
Clark, because they were guarantors. Neither did Lund owe
a duty to PMMI, according to the court, because “the agency
relationship between PMMI and Lund terminated when the
107th Avenue Lease began” in 2005. As such, “[t]hat Pedersen
chose to contact Lund to secure the Arbor Street property
in 2007 and negotiate a lease that Pedersen signed in his
personal capacity, not on behalf of PMMI, is clearly not a
breach of duty, if such a duty even exists, that Lund may have
to PMMI.”
Despite this conclusion, the district court again undertook
a factual analysis of appellants’ negligence claim. It reasoned
that “expert testimony is necessary to support a claim of breach
of the standard of care in this case because the alleged negli-
gence cannot be presumed to be within the comprehension of
laypersons.” Appellants had not offered any expert testimony,
so the court concluded that “[e]ven if, arguendo, such a duty
did exist, there is absolutely no evidence in the record as to the
standard of care that is owed by a real estate agent to PMMI,
Clark or Huntington.” (Emphasis in original.)
Because the district court found that appellants’ claims of
inducement to breach a lease, tortious interference, and neg-
ligence had no merit, it granted summary judgment in favor
of Lund.
Appellants 	timely 	appealed, 	and 	pursuant 	to 	statutory
authority,1 we moved the case to our docket.
III. ASSIGNMENTS OF ERROR
Appellants allege, restated and reordered, that the district
court erred in (1) concluding that (a) there is no private cause
of action under § 81-885.24(13) against a real estate broker for
1 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).

784 	284 NEBRASKA REPORTS
inducement to breach a contract of sale or lease and (b) there
was insufficient evidence to find that Lund induced a breach
of the 107th Avenue lease, (2) concluding that there was insuf-
ficient evidence to find that Lund tortiously interfered with
PMMI’s lease agreement with the Doucettes, (3) concluding
that PMMI’s agency relationship with Lund terminated when
the 107th Avenue lease began, (4) concluding that there was
insufficient evidence to find that Lund breached its fiduciary
duties, (5) concluding that appellants needed expert testimony
to establish the standard of care owed by Lund, and (6) grant-
ing Lund’s motion for summary judgment because there were
no material issues of fact.
IV. STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.2
[2] 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 	that
party the benefit of all reasonable inferences deducible from
the evidence.3
V. ANALYSIS
1. inducement to BreAch leAse
Appellants argue that the district court erred both in deter-
mining that § 81-885.24(13) did not create a private cause of
action for inducement to breach a lease and in finding that even
if there were a private cause of action, there was insufficient
evidence to find inducement. We discuss each of these assign-
ments of error in turn.
2 Heritage Bank v. Bruha, 283 Neb. 263, 812 N.W.2d 260 (2012).
3 Westin Hills v. Federal Nat. Mortgage Assn., 283 Neb. 960, 814 N.W.2d
378 (2012).

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	785
Cite as 284 Neb. 777
(a) Private Cause of Action
Under § 81-885.24(13)
Appellants assign error to the district court’s conclusion
that § 81-885.24(13) did not create a private right of action
against a real estate broker for inducement to breach a con-
tract of sale or lease. Section 81-885.24(13) is part of the
Nebraska Real Estate License Act4 and gives the State Real
Estate Commission power to censure, suspend the license of,
or impose a civil fine on a licensed agent or broker if he or she
has been found guilty of the unfair trade practice of “[i]nducing
any party to a contract of sale or lease to break such contract
for the purpose of substituting, in lieu thereof, a new contract
with another principal.”5
Before the district court and on appeal, appellants’ argument
for this private right of action is based in negligence. They
argue that a violation of § 81-885.24(13) could be used to
prove breach of a duty for purposes of negligence in the same
manner as “violations [of a traffic law] can be utilized to estab-
lish negligence [of] a driver.”6
[3] But as the Restatement (Third) of Torts explains,
“[t]he body of law addressing [whether an implied right of
action should be found in a statute] is robust, is distinct from
tort law, and entails an assessment of legislative action.”7
Nevertheless, “[c]ourts frequently have not made a clear
distinction between implied rights of action and statutorily
supported tort duties when addressing whether a private
claim can be maintained.”8 On occasion, we have not made
this distinction clear. For example, in Strauel v. Peterson,9
4 See Neb. Rev. Stat. §§ 81-885 to 81-885.55 (Reissue 2008 & Cum. Supp.
2012).
5 § 81-885.24(13).
6 See brief for appellants at 15.
7 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 38, Reporter’s Note comment c. at 736 (Proposed Final Draft No. 1,
2005) (approved in 2011).
8 Id.
9 Strauel v. Peterson, 155 Neb. 448, 52 N.W.2d 307 (1952).

786 	284 NEBRASKA REPORTS
this court responded to an argument that a statute created a
duty in tort by considering whether an implied right of action
accrued from the statute. In that case, we held that there was
no private right of action despite the fact that the question
on appeal was framed by the parties as one of statutorily
created duties in tort. In the face of this blurred distinction,
we now recognize that whether a statute includes an implied
right of action is distinct and separate from the issue whether
a statute creates a duty in tort which can be enforced via a
negligence action.
[4,5] This distinction exposes the problem in appellants’
argument for a private cause of action for inducement under
§ 81-885.24(13). Although claiming to argue for recognition
of a private right of action, the substance of appellants’ argu-
ment in no way supports such a finding. Whether a statute cre-
ates a private right of action depends on the statute’s purpose
and whether the Legislature intended to create a private right
of action.10 Without legislative intent “to create not just a pri-
vate right but also a private remedy,” courts cannot create an
implied cause of action, “no matter how desirable that might
be as a policy matter or how compatible with the statute.”11
Appellants argue neither that the Legislature intended to cre-
ate a private right of action against offending licensees under
§ 81-885.24(13) nor that the purposes of the statute would
support implying such a right. In making their argument for a
private right of action, appellants address solely the question
whether § 81-885.24(13) creates a duty in tort, the violation of
which is evidence of negligence. This is a distinct issue that is
irrelevant to the question whether § 81-885.24(13) creates an
implied right of action.
[6] In their reply brief, appellants seem to acknowledge
that legislative purpose and intent are the sole factors relevant
to the implied right of action inquiry, but push the burden of
presenting evidence of such intent or purpose onto Lund. In
effect, appellants argue that Lund has the burden on appeal of
10 See, e.g., State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011), cert. denied
565 U.S. 967, 132 S. Ct. 463, 181 L. Ed. 2d 302.
11 Id. at 604, 799 N.W.2d at 296.

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	787
Cite as 284 Neb. 777
proving that the district court ruled correctly. Such an argument
is wholly incorrect and ignores the basic proposition that the
party appealing “must point out the factual and legal bases that
show the error” in the lower court’s decision.12
Because appellants fail to address the factors relevant to
deciding whether a private right of action exists, we do not
reach this assignment of error.
(b) Insufficient Evidence
of Inducement
[7] Given that we do not reach the previous assignment
of error regarding § 81-885.24(13), we need not review the
district court’s finding that appellants adduced insufficient
evidence to find that Lund induced a breach of the 107th
Avenue lease. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it.13
2. tortious interference
(a) Insufficient Evidence of
Tortious Interference
Appellants allege that the district court erred in concluding
that there was insufficient evidence to find tortious interfer-
ence with the 107th Avenue lease, arguing that on this issue
and others, the court’s order was “drafted as if the [c]ourt
reviewed evidence, made factual determinations and entered
an [o]rder after a trial.”14 Because (1) appellants misconstrue
the court’s finding, ignoring that it was a finding of suffi-
ciency as a matter of law, and (2) it is not improper to con-
sider whether a party adduced sufficient evidence to meet its
evidentiary burden in summary judgment, this assignment of
error lacks merit.
First, appellants’ argument that the district court erred in
concluding that there was insufficient evidence misconstrues
the court’s finding. The court neither employed the phrase
12 Mandolfo v. Mandolfo, 281 Neb. 443, 452, 796 N.W.2d 603, 612 (2011).
13 In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398 (2011).
14 Brief for appellants at 11.

788 	284 NEBRASKA REPORTS
“insufficient evidence” nor spoke in terms of sufficiency of
evidence. Rather, the court stated that it “can find no evidence
to support this allegation” of tortious interference. In making
this finding, the court was not weighing conflicting evidence.
As the court’s subsequent analysis revealed, it was addressing
whether appellants’ evidence was satisfactory legal proof of
tortious interference. In other words, the court was weighing
the sufficiency of the evidence as a matter of law.
[8,9] Second, the district court’s analysis was proper because
consideration of a motion for summary judgment also requires
a court to consider the quantitative sufficiency of the evi-
dence. The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that the
moving party is entitled to judgment as a matter of law.15
This standard explicitly invokes the idea of sufficiency of evi-
dence. Furthermore,
[a]fter the movant for summary judgment makes a prima
facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence
was uncontroverted at trial, the burden to produce evi-
dence showing the existence of a material issue of fact
that prevents judgment as a matter of law shifts to the
party opposing the motion.16
Courts also speak in terms of “sufficiency” when considering
whether the nonmoving party met this burden. In fact, this
court has defined the decisive question on appeal from sum-
mary judgment as “whether [the nonmoving party] produced
sufficient evidence to present a genuine issue of material
fact.”17 Indeed, any burden of proof necessarily requires a
court to determine whether the party with the burden of proof
adduced sufficient evidence to meet that burden. In claiming
that the district court erred in finding that there was insuffi-
cient evidence to find that Lund tortiously interfered with the
15 In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).
16 Id. at 578, 810 N.W.2d at 747.
17 Deviney v. Union Pacific RR. Co., 280 Neb. 450, 455, 786 N.W.2d 902,
907 (2010).

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	789
Cite as 284 Neb. 777
107th Avenue lease, appellants overlook the evidentiary bur-
dens applicable in the summary judgment procedure.
In the instant case, appellants were in the position of the
nonmoving party, and thus, once Lund adduced sufficient evi-
dence to show that it was entitled to judgment as a matter of
law if Lund’s evidence remained uncontroverted at trial, they
had the burden of showing the existence of material issues of
fact that would have precluded judgment as a matter of law
in favor of Lund, the moving party. Because appellants had a
burden of proof in the summary judgment hearing, the district
court did not err in considering whether appellants produced
sufficient evidence to meet that burden of proof.
(b) Existence of Material
Issue of Fact
Lund was the moving party and carried the initial burden of
showing its entitlement to judgment on the tortious interference
claim. As the original plaintiffs, appellants would have had the
burden of proving the elements of tortious interference at trial.
Failure to meet this burden would have resulted in judgment
for Lund. Consequently, Lund was entitled to judgment as a
matter of law at the summary judgment stage if it affirmatively
showed that appellants would be unable to prove one or more
of the elements of tortious interference at trial.
[10] 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.18
Although the procedural history is slightly different from
that of the instant appeal, the case of Aon Consulting v.
Midlands Fin. Benefits19 is instructive in considering whether
18 Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009).
19 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).

790 	284 NEBRASKA REPORTS
appellants could prove the elements of tortious interference.
In Aon Consulting, William Pearson left his position with
Aon Consulting, Inc. (Aon), to take a similar position with
Midlands Financial Benefits, Inc. (Midlands), whereupon he
proceeded to breach a nonsolicitation agreement he had with
Aon. Aon brought suit against Midlands for tortious interfer-
ence, but the action was dismissed on Midlands’ motion for
directed verdict. On appeal, this court agreed with the district
court that Aon failed to prove an unjustified intentional act of
interference on the part of Midlands. In so concluding, this
court highlighted three pertinent facts: (1) “Pearson contacted
Midlands about employment and . . . Midlands neither solicited
nor recruited Pearson,” (2) Pearson “told Midlands that . . .
the agreement was unenforceable,” and (3) “Midlands did not
expect or require Pearson to solicit customers he had served
while employed by Aon,” which was the action that breached
the nonsolicitation agreement.20 Given these facts, this court
reasoned that “the most that can be said is that Midlands hired
an experienced 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 unenforceable.”21 Consequently, this court held 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.”22
For purposes of the instant appeal, it is important to note
that Aon’s case for tortious interference failed because of the
existence of three facts: (1) Pearson established contact with
Midlands, the party who allegedly interfered with Aon’s con-
tractual relationship with Pearson; (2) Pearson represented to
Midlands that the nonsolicitation agreement was not enforce-
able, which agreement was the contract with which Midlands
supposedly interfered; and (3) Midlands did not require Pearson
20 Id. at 664, 748 N.W.2d at 645.
21 Id.
22 Id.

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	791
Cite as 284 Neb. 777
to engage in the actions which ultimately breached the agree-
ment. Together, these three facts combined to show that there
was no unjustified intentional act of interference on the part
of Midlands.23
These same three facts in the instant case establish that
there was no unjustified intentional act of interference by
Lund. First, it is significant that Lund did not initiate the
communication with Pedersen, a fact that is not disputed by
appellants. Rather, Pedersen telephoned Shipps of his own
volition and requested assistance in finding cheaper office
space. Second, Lund’s evidence showed that Pedersen repre-
sented to Shipps, prior to viewing any property or signing the
Arbor Street lease, that “he had made arrangements” with the
Doucettes. Lund also produced evidence that Shipps “was of
the understanding” that any liability under the 107th Avenue
lease “had been taken care of.” Such an understanding dis-
proves any intent by Lund to interfere with the 107th Avenue
lease, a lease Lund believed had been terminated. Third, in
showing Pedersen the Arbor Street property and ultimately
negotiating the Arbor Street lease, Shipps did not require
Pedersen to breach the 107th Avenue lease or terminate busi-
ness relations with the Doucettes. Although appellants argue
that “looking for additional office space” would “necessar-
ily” cause PMMI to stop paying rent under the 107th Avenue
lease,24 Pedersen incurred no obligation to cease making other
rent payments or to withdraw from other leases by viewing
the Arbor Street property or even by signing the Arbor Street
lease. Thus, as in Aon Consulting,25 the party that allegedly
interfered did not expect or require breach of the prior busi-
ness relationship.
Because Pedersen initiated contact with Shipps and repre-
sented to him that liability under the 107th Avenue lease was
terminated and because the new lease negotiated by Shipps
did not require Pedersen to breach the 107th Avenue lease, we
23 See id.
24 Brief for appellants at 14.
25 Aon Consulting v. Midlands Fin. Benefits, supra note 19.

792 	284 NEBRASKA REPORTS
find that Lund adduced sufficient evidence to disprove that it
engaged in an unjustified intentional act of interference. Thus,
Lund established a prima facie case for summary judgment.
[11] At this point in the summary judgment proceedings,
the burden shifted to appellants to produce sufficient evidence
to establish the existence of a material issue of fact that pre-
vented judgment for Lund.26 We recognize that appellants’
evidence did call into question Lund’s evidence on certain
factual matters, such as how much Pedersen disclosed to Lund
about his plans to vacate the 107th Avenue property and when
such disclosures were made. However, not all issues of fact
preclude summary judgment, but only those that are material.
In the summary judgment context, a fact is material only if it
would affect the outcome of the case.27 Accordingly, because
Lund showed that appellants could not prove an unjustified
intentional act of interference under the precedent of Aon
Consulting, the only way for appellants to establish a material
issue of fact would have been to contradict Lund’s evidence on
one of the three facts identified in Aon Consulting.
In reviewing the record, we find no evidence to contradict
that Pedersen established contact with Shipps, that Pedersen
told Shipps that he had made arrangements with the Doucettes
to prevent liability under the 107th Avenue lease, and that the
Arbor Street lease did not require Pedersen to breach the 107th
Avenue lease. Because appellants did not show the existence
of material issues of fact on these issues, the district court did
not err in holding that appellants’ evidence failed to support a
finding of tortious interference.
3. negligence
Three of appellants’ assignments of error relate to their
negligence claim against Lund. The first challenges the district
court’s finding that the agency relationship arising from Lund’s
representation of PMMI in leasing the 107th Avenue prop-
erty terminated prior to Lund’s supposed breach of its duties
under that relationship. The second addresses the sufficiency of
26 See In re Estate of Cushing, supra note 15.
27 Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008).

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	793
Cite as 284 Neb. 777
appellants’ evidence of breach. And the third finds error with
the court’s holding that appellants were required to adduce
expert testimony to establish the appropriate standard of care.
Because of the result we reach, we discuss only the first of
these assignments of error.
(a) Duration of Agency Relationship
Between PMMI and Lund
Appellants’ negligence claim against Lund depended upon
a finding that Lund owed fiduciary duties to PMMI at the
time of the alleged breach. The relationship between Lund
and PMMI began when Pedersen engaged Lund’s services
to find new office space in 2005. The district court deter-
mined that this relationship concluded when the 107th Avenue
lease was signed and that Lund owed no continuing duties to
PMMI when Pedersen signed the Arbor Street lease in 2007.
Appellants argue that the relationship with Lund and the result-
ing fiduciary duties continued until at least that latter point in
time. As such, this assignment of error requires us to define
and delimit the agency relationship between a real estate bro-
ker and the lessee he or she represents. We need not determine
whether Lund’s actions breached the fiduciary duties owed
within that relationship, because we find that the agency rela-
tionship between Lund and PMMI ended no later than October
4, 2005, when Lund received its commission.
In 1994, the Legislature passed a series of statutes “to
codify in statute the relationships between real estate brokers
or salespersons and persons who are sellers, landlords, buyers,
or tenants of rights and interests in real property.”28 Because
these statutes “shall supersede the duties and responsibili-
ties of the parties under the common law, including fiduciary
responsibilities of an agent to a principal,”29 appellants’ cita-
tion to various cases defining the fiduciary duties owed by
a real estate broker and their discussion of foreseeability of
harm as creating duties are both irrelevant to our consideration
of this issue.
28 Neb. Rev. Stat. § 76-2401 (Reissue 2009).
29 Neb. Rev. Stat. § 76-2429 (Reissue 2009).

794 	284 NEBRASKA REPORTS
Before we can define the relationship between Lund and
PMMI, it is first necessary to understand the terminology
used in the statutes and to identify the parties according to
those terms.
[12] Neb. Rev. Stat. §§ 76-2401 to 76-2430 (Reissue 2009)
govern the agency relationships between what we commonly
refer to as a “broker” and his or her clients.30 Broadly speak-
ing, a broker is any person who (1) “negotiates or attempts
to negotiate the listing, sale, purchase, exchange, rent, lease,
or option for any real estate or improvements thereon”; (2)
“assists in procuring prospects or holds himself or herself out
as a referral agent for the purpose of securing prospects” for
these purposes; (3) “collects rents or attempts to collect rents”;
(4) “gives a broker’s price opinion or comparative market anal-
ysis”; or (5) “holds himself or herself out as engaged in any of
the foregoing.”31 When a client engages a broker to perform
any of the above-listed services, the resulting agency relation-
ship is called a brokerage relationship.32
[13] Within the context of a brokerage relationship, the bro-
ker is categorized as either a designated broker or an affiliated
licensee of the designated broker. A designated broker is “an
individual holding a broker’s license who has full authority to
conduct the real estate activities of a real estate business.”33 In
a corporation such as Lund, the board of directors identifies a
designated broker for the entire real estate business to whom is
given “full authority to conduct the real estate activities of the
. . . corporation.”34
[14-17] In all real estate operations other than sole propri-
etorships, the designated broker retains associate brokers or
salespersons to assist with the work of serving clients. An asso-
ciate broker is “a person who has a broker’s license and who
is employed by another broker to participate in any activity [in
30 See § 76-2401.
31 § 81-885.01(2) (definition as adopted by § 76-2405).
32 See § 76-2405.
33 § 81-885.01(4) (definition as adopted by § 76-2410).
34 Id.

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	795
Cite as 284 Neb. 777
which a broker engages].”35 A salesperson is anyone employed
by a broker who is not himself or herself a licensed bro-
ker.36 Associate brokers and salespersons under the supervision
of a designated broker are called affiliated licensees.37 Once
engaged in a brokerage relationship with a client, the desig-
nated broker and affiliated licensees (either associate brokers
or salespersons) are called licensees.38
[18] Within the context of a brokerage relationship, which,
we recall, is an agency relationship, a licensee is the limited
agent of the client.39 There are three types of limited agents,
each of which owes slightly different fiduciary duties to the
client: single agent, dual agent, and subagent.40
[19,20] A single agent “represents only one party in a real
estate transaction.”41 Depending on the client, a single agent
is more specifically called the buyer’s agent, the landlord’s
agent, the seller’s agent, or the tenant’s agent.42 Unless there
is an agreement specifically designating the limited agent as
the seller’s agent, the landlord’s agent, a subagent, or a dual
agent, the limited agent is considered the buyer’s or ten-
ant’s agent.43
[21,22] A dual agent “has entered into a brokerage relation-
ship with and therefor[e] represents both the seller and buyer or
both the landlord and tenant.”44 Dual agency requires the writ-
ten informed consent of all parties to the real estate transac-
tion.45 A designated broker is not considered to be a dual agent
even though his or her affiliated licensees represent parties on
35 § 81-885.01(3) (definition as adopted by §§ 76-2404 and 76-2412).
36 See § 81-885.01(6) (definition as adopted by §§ 76-2404 and 76-2412).
37 See § 76-2404.
38 See § 76-2412.
39 See §§ 76-2413 and 76-2416.
40 See § 76-2416.
41 § 76-2414.
42 See id.
43 See § 76-2416(2).
44 § 76-2411.
45 See id.

796 	284 NEBRASKA REPORTS
both sides of the transaction so long as the designated broker
exercises his or her powers to “appoint in writing those affili-
ated licensees who will be acting as limited agents of th[e] cli-
ent to the exclusion of all other affiliated licensees.”46 Section
76-2427 explicitly provides that “[a] designated broker shall
not be considered to be a dual agent solely because he or she
makes an appointment under this section.”
[23] A subagent is “a designated broker, together with his or
her affiliated licensees, engaged by another designated broker
to act as a limited agent for a client.”47
Having thus outlined the various terms used in the statu-
tory scheme, we turn to the case at hand. Recall that we
are concerned only with the relationship between Lund and
PMMI in 2005. While Lund did enter into a second brokerage
relationship with PMMI, or at least Pedersen, in late 2006 or
early 2007, it is that second relationship that appellants allege
breached the continuing duties arising under the first brokerage
relationship in 2005. As such, the brokerage relationship with
which we are concerned is that arising from the leasing trans-
action in 2005.
In that brokerage relationship, the client was PMMI. Shipps
and Thurber 	together 	were 	licensees, 	specifically 	tenant’s
agents. Shipps and Thurber were also affiliated licensees,
whose designated broker was John Lund.
Although outside the specific brokerage relationship between
Lund and PMMI, we note that Covert was also an affiliated
licensee of John Lund and served as a licensee to the Doucettes
for lease of the 107th Avenue property. Dual agency was
argued before the district court, but appellants did not assign
error to the court’s finding that Lund was not engaged in dual
agency. Therefore, we need not address this finding.
[24] As tenant’s agents, Shipps and Thurber undoubtedly
owed fiduciary duties to PMMI for the duration of the broker-
age relationship.48 However, § 76-2423 is clear that once the
46 § 76-2427.
47 § 76-2415.
48 See § 76-2418(1).

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	797
Cite as 284 Neb. 777
brokerage relationship terminated, Shipps and Thurber—and,
by extension, Lund—ceased to owe duties to PMMI except for
limited duties of confidentiality and accounting for money and
property received during the relationship. According to statute,
the fiduciary relationship between a broker and client “shall
commence at the time that the licensee begins representing
a client and continue until performance or completion of the
representation.”49 Thus, to determine when Lund’s represen-
tation of PMMI was performed or completed, we must first
define and delimit that representation.
[25] Appellants urge us to characterize the relationship
between PMMI and Lund as almost unlimited, arguing that
Lund owed a “continuing duty”50 for the duration of the 107th
Avenue lease and that Lund should be liable for any foresee-
able injury even if the company was not “still technically an
‘agent’ within an active agency.”51 But such an interpretation
of a brokerage relationship and the duties arising therefrom
conflicts with the statutory scheme governing those relation-
ships, as our analysis below will reveal. Because our standard
of review dictates that we interpret the statutes governing bro-
kerage relationships “so that different provisions are consistent,
harmonious, and sensible,”52 we reject appellants’ argument on
the scope of a brokerage relationship.
[26,27] 	A 	brokerage 	relationship 	is 	a 	limited 	agency
relationship,53 and the services a broker can offer to a client are
limited by statute.54 When the Legislature adopted the statutes
governing brokerage relationships in 1994, it made clear that
the resulting statutory scheme would supersede any common-
law duties and responsibilities of brokers, including those of
49 § 76-2423(1)(a).
50 Brief for appellants at 25.
51 Id. at 24.
52 AT&T Communications v. Nebraska Public Serv. Comm., 283 Neb. 204,
211, 811 N.W.2d 666, 672 (2012).
53 See §§ 76-2416 to 76-2418.
54 See § 81-885.01(2) (definition as adopted by § 76-2405).

798 	284 NEBRASKA REPORTS
a fiduciary nature.55 Accordingly, with certain exceptions not
applicable here,56 the fiduciary duties owed by a broker to
his client now derive only from performance of these lim-
ited services.
In the instant case, PMMI engaged Lund to provide two of
the brokerage services defined by statute: “procuring prospects
. . . for the . . . renting [or] leasing . . . of any real estate” and
“negotiat[ing] or attempt[ing] to negotiate the . . . rent [or]
lease . . . for any real estate.”57 Because PMMI was relying
upon Lund to locate office space available to lease, we can
also define the relationship between PMMI and Lund as that
of tenant and tenant’s agent, respectively, in which case Lund
owed duties for its representation of PMMI as the tenant “in a
leasing transaction.”58
Based on these statutory provisions, Lund’s representation
of PMMI had three purposes: (1) to identify acceptable rental
property, (2) to negotiate the lease, and (3) to execute the leas-
ing transaction. Once these three things were accomplished,
the representation was fully performed and any fiduciary duties
owed by Lund to PMMI ceased. Following our rules of statu-
tory interpretation, we give the undefined terms in these provi-
sions their plain, ordinary meaning.59
Our case law does not define when a leasing transaction
terminates. Under Neb. Rev. Stat. § 36-105 (Reissue 2008), it
is clear that a lease contract for longer than 1 year becomes
enforceable only once it is “signed by the party by whom
the lease or sale is to be made.” But there is no correspond-
ing statutory provision or proposition in case law defining
when the leasing transaction, as opposed to the lease contract,
is terminated.
[28] We are, however, able to ascertain that the leasing
transaction in the instant case—and, by consequence, Lund’s
55 See § 76-2429.
56 See § 76-2422(6).
57 § 81-885.01(2) (definition as adopted by § 76-2405).
58 § 76-2414(4).
59 See J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).

PROFESSIONAL MGMT. MIDWEST v. LUND CO. 	799
Cite as 284 Neb. 777
representation of PMMI—was terminated long before Lund’s
alleged breach in 2007. A broker’s commission generally
“becomes payable on completion of the transaction which the
broker was employed to negotiate, unless there is a stipula-
tion in the contract of employment to the contrary.”60 Thus,
if a broker is employed as a tenant’s agent whose purpose is
to represent the tenant in a leasing transaction, as Shipps was
in the instant case, the broker’s commission can be disbursed
only after the leasing transaction—the underlying transaction
for which the commission was earned—is completed. Lund
received the commission for its representation of PMMI on
October 4, 2005. Therefore, the leasing transaction for which
Shipps represented PMMI was concluded by October 2005
at the very latest. We need not determine whether the leas-
ing transaction actually concluded prior to that date because
it is clear that Lund’s representation of PMMI concluded long
before Pedersen engaged Lund to search for cheaper office
space property in late 2006 or early 2007. The district court
did not err in holding that Lund’s fiduciary relationship with
PMMI terminated prior to 2007.
(b) Other Assignments of Error
Related to Negligence
Because we find that any duties owed by Lund to PMMI
by virtue of their brokerage relationship terminated prior to
the alleged breach of those duties in 2007, we need not reach
appellants’ assignment that the district court erred in finding
that there was insufficient evidence of breach.61 Because Lund
owed PMMI no duties at the time of the alleged breach, neither
is there need to discuss whether the court erred in requiring
appellants to adduce expert testimony to prove the standard of
care owed by Lund.
4. summAry Judgment
Finally, appellants generally allege that the district court
erred in granting summary judgment in favor of Lund. In the
60 12 C.J.S. Brokers § 211 at 275 (2004).
61 See In re Trust Created by Hansen, supra note 13.

800 	284 NEBRASKA REPORTS
separate argument section for this assignment, appellants make
mostly factual arguments as to why the court should not have
granted summary judgment in favor of Lund, attempting to
show that there were material issues of fact. Appellants’ only
legal argument under this assignment of error asserts that Lund
was liable for the negligent acts of its agents, a legal conclu-
sion with which the district court agreed. Otherwise, appellants
do not advance any legal arguments distinct from those we
have already dismissed as lacking merit.
Given our previous findings that there was no tortious inter-
ference and that Lund owed no duty to PMMI in 2007, which
prevents a finding of negligence,62 and without recognition of
an implied private cause of action for inducement, appellants
are legally barred from succeeding on any of their theories of
relief. For these same reasons, any issues of fact that exist are
not considered material.63
Because appellants’ purely factual arguments are of no avail
in challenging these legal bars to relief or in raising material
issues of fact, we find no merit to this assignment of error.
The district court did not err in granting summary judgment in
favor of Lund.
VI. CONCLUSION
We hold that Lund, as a real estate broker, cannot be held
liable to PMMI for inducement, tortious interference, or neg-
ligence for assisting Pedersen to enter into a new lease while
knowing that PMMI remained liable under a previous lease.
From our conclusion that the limited brokerage relationship
between Lund and PMMI was terminated, at the very latest,
upon the payment of Lund’s commission regarding the 107th
Avenue lease, it necessarily follows that Lund owed no fidu-
ciary duties to PMMI at the time of the alleged breach of those
duties in 2007. As a matter of law, PMMI’s claim that Lund
engaged in an unjustified intentional act of interference by
assisting Pedersen in locating new office space fails because
62 See Spear T Ranch v. Nebraska Dept. of Nat. Resources, 270 Neb. 130,
699 N.W.2d 379 (2005).
63 See Amanda C. v. Case, supra note 27.

INTERCALL, INC. v. EGENERA, INC. 	801
Cite as 284 Neb. 801
the assistance was performed at Pedersen’s request, in reliance
on Pedersen’s representation that he had made arrangements
to prevent liability under the 107th Avenue lease, and without
requirement that Pedersen breach any existing contractual rela-
tionships. As for Lund’s liability for inducing the breach of a
lease under § 81-885.24(13), we do not reach the issue because
appellants’ arguments for an implied private right of action
focus solely on whether the statute imposed a duty in tort—a
distinct and separate issue. These holdings make it unnecessary
to consider appellants’ remaining assignments of error. Because
we either do not reach appellants’ assignments of error or find
them to be without merit, we affirm the judgment of the dis-
trict court.
A ffirmed.
mccormAck and miller-lermAn, JJ., not participating.
intercAll, inc., AppellAnt, v.
egenerA, inc., Appellee.
824 N.W.2d 12
Filed December 7, 2012. 	No. S-11-1003.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and an appellate court will not disturb the trial
court’s decision absent an abuse of discretion.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
3. Verdicts: Appeal and Error. A civil verdict will not be set aside where evidence
is in conflict or where reasonable minds may reach different conclusions or infer-
ences, as it is within the jury’s province to decide issues of fact.
4. Motions for New Trial: Appeal and Error. An appellate court reviews a denial
of a motion for new trial or, in the alternative, to alter or amend the judgment, for
an abuse of discretion.
5. Contracts: Fraud. A contract is voidable by a party if his or her manifestation
of assent is induced by either a fraudulent or a material misrepresentation by the
other party upon which he or she is justified in relying.
6. ____: ____. A misrepresentation induces a party’s manifestation of assent if it
substantially contributes to the party’s decision to manifest his or her assent.
7. ____: ____. A party who has been induced to enter into a contract by a material
misrepresentation has, upon discovery of such misrepresentation, an election of
remedies: either to affirm the contract and sue for damages or to disaffirm the