In re Application No. B-1829

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293 Nebraska Reports
IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
In re Application No. B-1829.
Golden Plains Services Transportation, Inc.,
doing business as GPS Transportation,
appellee, v. Happy Cab Company, doing
business as Happy Cab Company,
Checker Cab Company, and
Yellow Cab Company,
et al., appellants.
880 N.W.2d 51
Filed April 28, 2016. 	No. S-15-601.
1. Public Service Commission: Appeal and Error. Under Neb. Rev. Stat.
§ 75-136(2) (Cum. Supp. 2014), an appellate court reviews an order of
the Nebraska Public Service Commission de novo on the record.
2. Appeal and Error. In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches its own
independent conclusions concerning the matters at issue.
3. Evidence: Proof. It is the burden of the proponent of the evidence to
establish the relevancy of the evidence it seeks to introduce.
Appeal from the Public Service Commission. Affirmed.
Andrew S. Pollock, Tara Tesmer Paulson, and Halley A.
Kruse, of Rembolt Ludtke, L.L.P., for appellants.
Jack L. Shultz and Adam J. Prochaska, of O’Neill, Heinrich,
Damkroger, Bergmeyer & Shultz, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:28 AM CST

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
Heavican, C.J.
INTRODUCTION
Golden Plains Services Transportation, Inc. (GPS), oper-
ated as a common carrier under an open class “Certificate of
Public Convenience and Necessity” granted by the Nebraska
Public Service Commission (PSC). GPS sought to amend its
certificate so that it could transport passengers from one point
in Lancaster County to another point in Lancaster County.
Happy Cab Company; DonMark, Inc.; and Valor Transportation
Company (collectively the Omaha cab companies) objected.
Following a hearing, the PSC granted GPS’ application. The
Omaha cab companies appeal.
At issue before the PSC and now on appeal is whether GPS
was fit, willing, and able to properly perform the service pro-
posed in its application. We affirm.
BACKGROUND
GPS filed an application with the PSC on July 23, 2014,
seeking to modify its authority by (1) removing the restric-
tion for point-to-point service within Lancaster County and (2)
amending the restriction relating to operation in areas where
other cab companies hold a certificate or permit.
On August 13, 2014, the Omaha cab companies filed a pro-
test to GPS’ application. In that protest, the Omaha cab compa-
nies argued both that there was no need for the service which
GPS intended to offer and that GPS was not able to adequately
provide that service. On August 28, another provider, Transport
Plus of Lincoln, Inc., also filed a protest. Transport Plus of
Lincoln is not a party to this appeal.
A hearing was held on March 4 and 5, 2015. At the hearing,
evidence was adduced regarding GPS. GPS is a corporation;
Kirby Young is its sole owner, stockholder, officer, and direc-
tor. Young also manages all day-to-day operations for GPS.
GPS has provided open class service for approximately 21⁄2
years. Open class service, as defined by regulation,

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
shall consist of all of the following elements: (i) the
business of carrying passengers for hire by a vehicle, (ii)
along the most direct route between the points of origin
and destination or along a route under the control of the
person who hired the vehicle and not over a defined regu-
lar route, (iii) at a mileage based or per trip fare.1
GPS provides service to both the general public and to the
Nebraska Department of Health and Human Services (DHHS)
through its broker, “IntelliRide.” As of the time of the hear-
ing, GPS had the authority to transport DHHS clients in open
class service, except that it was not allowed to transport a pas-
senger from one point in Lancaster County to another point in
Lancaster County.
GPS is the largest open class transporter by number of trips
in the Omaha, Nebraska, market for clients transported for
DHHS. A representative testified that IntelliRide would con-
tinue to use GPS’ services if GPS were authorized as an open
class provider within Lancaster County.
Young is also a coowner and involved in the management
of Servant Cab Company, L.L.C. (Servant). Servant holds cab
authority and is operated on a day-to-day basis by Young’s
brother. Regulations provide:
Taxi service shall consist of all of the following elements:
(i) the business of carrying passengers for hire by a vehi-
cle, subject to the provisions of Rule 011.01D, (ii) along
the most direct route between the points of origin and
destination or a route under the control of the person who
hired the vehicle and not over a defined regular route,
(iii) on a prearranged or demand basis, (iv) at a metered,
mileage based or per trip fare according to the provisions
of 011.01F, (v) commencing within, and/or restricted to, a
defined geographic area.2
1 291 Neb. Admin. Code, ch. 3, § 010.01C (2003).
2 Id., § 010.01A.

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
GPS and Servant share space in the same building, but have
different offices within that building.
At the hearing on GPS’ application, the Omaha cab com-
panies offered exhibit 10, which was entitled “Summary of
DHHS Complaints Against Servant Cab.” GPS objected on the
basis of relevancy, because Servant was not an applicant. The
PSC agreed and refused to admit exhibit 10.
In addition to exhibit 10, the Omaha cab companies offered
the testimony of Mike Davis, a transportation manager with
StarTran, the bus service for the city of Lincoln, Nebraska,
regarding complaints made against Servant by patrons of
“Handi-Van.” Handi-Van is Lincoln’s fixed-route transporta-
tion service and contracts with Servant to provide transporta-
tion for some of that service. The Omaha cab companies also
offered exhibits 17 to 21, which are copies of StarTran minutes
which contain complaints against Servant. The PSC did not
admit those minutes or Davis’ testimony, concluding neither
was relevant.
On June 2, 2015, the PSC granted GPS’ application to
extend its authority, finding both that there was a need for the
proposed service and that GPS was fit, willing, and able to pro-
vide the proposed service. The Omaha cab companies appeal.
ASSIGNMENTS OF ERROR
The Omaha cab companies assign that the PSC erred in
(1) excluding evidence relevant to GPS’ fitness and ability to
provide the proposed service and (2) finding that GPS was fit,
willing, and able to provide the proposed service.
STANDARD OF REVIEW
[1,2] Under Neb. Rev. Stat. § 75-136(2) (Cum. Supp. 2014),
an appellate court reviews an order of the PSC de novo on
the record.3 In a review de novo on the record, an appellate
court reappraises the evidence as presented by the record and
3 Telrite Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d
910 (2014).

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
reaches its own independent conclusions concerning the mat-
ters at issue.4
ANALYSIS
Admission of Evidence
In its first assignment of error, the Omaha cab companies
argue that the PSC erred in not admitting evidence relating
to complaints against Servant. The parties disagree on the
appropriate standard of review that this court should employ
when determining whether the PSC erred in not admitting this
evidence. The Omaha cab companies direct us to § 75-136(2),
which requires an appellate court to review an order of the
PSC de novo on the record. GPS argues that as an evidentiary
ruling, the admission of evidence is subject to a review for an
abuse of discretion, and that the de novo review required by
§ 75-136(2) applies only to substantive rulings. But we need
not decide this issue today, because we conclude, for the rea-
sons explained below, that under either standard of review, the
Omaha cab companies did not establish the relevancy of the
evidence at issue.
On appeal, the Omaha cab companies argue that this evi-
dence was relevant to GPS’ fitness, because Young testified
that he was involved in the management of Servant. The
Omaha cab companies also direct this court to Young’s tes-
timony in prior PSC cases, which are not part of our record,
where Young made similar statements regarding his involve-
ment in the management of Servant. But GPS argues that there
is no common management or enterprise, that Servant and GPS
are separate entities, and that Servant’s records are not relevant
to GPS’ fitness.
A review of the challenged evidence is helpful. Exhibit 10 is
a summary of DHHS complaints against Servant for the period
beginning December 20, 2012, and ending February 26, 2014.
During that time period, there were 51 complaints deemed
4 Id.

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
valid or still under advisement. Most dealt with late pickup of
clients or failure to pick up the client at all.
Exhibits 17 to 21 are minutes from the StarTran advisory
board meetings held in September, October, and December
2014, and in January 2015. Those minutes detail meetings
between StarTran and Servant to deal with the issue of late
pickups. In addition, the Omaha cab companies presented
an offer of proof with respect to the testimony of Davis. If
allowed, Davis would have testified regarding complaints made
to StarTran about Servant’s performance under its contract with
Handi-Van.
[3] As the proponent of the evidence, it was the burden of
the Omaha cab companies to establish the relevancy of the evi-
dence they sought to introduce.5 In order to do so, the Omaha
cab companies attempted to show that Young was involved in
the day-to-day operation of both GPS and Servant.
To show this, the Omaha cab companies point to Young’s
testimony that he and his brother owned Servant and that
Young was the president of Servant. The Omaha cab companies
also note that Young indicated he considered “both Servant . . .
and GPS to be names of [his] businesses,” that he was involved
in the management of Servant “to a certain degree,” and that
he was “involved in the oversight of [Servant].” Young also
testified that if GPS’ certificate was amended, certain “traffic”
from the Servant side would be moved for business reasons,
suggesting that Young did, in fact, have management author-
ity over Servant. Young testified that his brother was Servant’s
day-to-day operations manager.
We conclude that this evidence, while sufficient to show that
Young had an interest in Servant, was insufficient to meet the
5 See, e.g., State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010)
(scientific evidence); State v. Alford, 278 Neb. 818, 774 N.W.2d 394
(2009) (hearsay evidence); Shipler v. General Motors Corp., 271 Neb.
194, 710 N.W.2d 807 (2006) (similar occurrence in products liability
action).

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
Omaha cab companies’ burden. The evidence did not estab-
lish that Young was involved in the day-to-day operations of
Servant such that the complaints against Servant were relevant
to GPS’ application. It appears from the record that there might
be documentation from other proceedings before the PSC that
speak to Young’s management and oversight of Servant. But
that documentation is not in our record, and as such, we cannot
review it.
Moreover, we do not have enough information to determine
the timeframe of these complaints as compared to Young’s
alleged management responsibilities. At the time of the hear-
ing, GPS had been operating for less than 3 years—while it
appears from the record that Servant had been operating longer
and that Young had been involved with Servant prior to GPS’
beginning operations. Thus, it is possible that Young was, at
one point in time, involved in the day-to-day operations of
Servant, but at a time not relevant to this inquiry.
Even considered under a de novo review, the Omaha cab
companies did not meet their burden to show that the Servant
records were relevant. The PSC did not err in failing to admit
that evidence.
Finding GPS Fit, Willing,
and Able
In its second assignment of error, the Omaha cab companies
argue that the PSC erred in finding that GPS was fit to pro-
vide the proposed service. The Omaha cab companies did not
contest the need for the proposed service and agreed that GPS
was financially fit. It argued only that GPS was not manageri-
ally fit.
Given that the Omaha cab companies’ evidence regard-
ing Servant was found inadmissible, its primary evidence in
support of that position was exhibit 13. Exhibit 13 is a list
of complaints filed against GPS, as well as the testimony of
a GPS passenger who testified that she had been driven by a
GPS driver who was driving recklessly, and another driver who

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IN RE APPLICATION NO. B-1829
Cite as 293 Neb. 485
made comments of a sexual nature which, while not directed at
her, the passenger nevertheless found inappropriate.
Exhibit 13 detailed a list of complaints against GPS by
DHHS clients between May 2014 and March 2015. Ultimately,
28 out of a total of 52 incidents were found to be valid. The
record shows that in that same period of time—May 2014
to March 2015—GPS had a total of 48,020 completed trips.
Valid complaints, then, composed a small percentage of GPS’
total trips.
In its order, the PSC did express some concern about the
complaints and indicated that they would be investigated fur-
ther. But the PSC did not find that these complaints were suf-
ficient to conclude that GPS was not fit.
We note that many of the complaints from exhibit 13 were
that the driver was late. There was evidence at the hearing
that part of this was a function of the IntelliRide system,
which dispatched calls to drivers. There was testimony that
calls were sometimes canceled as the driver was en route
and the driver was then rerouted elsewhere. In addition, there
are fewer providers in the Lincoln area, which could have
caused the remaining providers’ capacity to be taxed, resulting
in tardiness.
Finally, a representative for IntelliRide testified that it would
utilize GPS’ services for point-to-point transportation within
Lancaster County should GPS’ certificate be amended.
Upon our de novo review, we conclude there was evidence
to support the PSC’s decision that GPS was fit, willing, and
able to properly perform the service proposed in its application,
and therefore, the PSC did not err in amending GPS’ certifi-
cate. There is no merit to the Omaha cab companies’ arguments
on appeal.
CONCLUSION
The decision of the PSC is affirmed.
Affirmed.