Eikmeier v. City of Omaha

compensation claims. The trial court also viewed the DVD.
Based on the record before us, we find that the trial court did
not clearly err in determining that Straub had injured his hip
during the first accident. Appellants’ third assignment of error
is without merit.
CONCLUSION
We find Straub’s second accident, which occurred while
en route to a required medical appointment for compensable
injuries, was also compensable. We also find the trial court
did not commit clear error when determining that Straub sus-
tained a 35-percent loss of earning capacity or when finding
that the DVD, found at exhibit 2, showed that Straub’s left hip
was injured.
A ffirmed.
eIkmeIer v. CITy Of OmAhA 	173
Cite as 280 Neb. 173
donAld B. eikmeier , AppellAnt, v. the C ity of
omAhA, neBrAskA, A muniCipAl CorporAtion,
et Al ., Appellees.
C heryl eCkermAn, AppellAnt, v. the C ity of
omAhA, neBrAskA, A muniCipAl CorporAtion,
et Al ., Appellees.
783 N.W.2d 795
filed July 2, 2010. 	Nos. S-09-1183, S-09-1184.
1. Statutes: Appeal and Error. The determination of the applicability of a statute
is a question of law, and when considering a question of law, the appellate court
makes a determination independent of the trial court.
2. Attorney Fees: Appeal and Error. A party may recover attorney fees and
expenses in a civil action only when a statute permits recovery or when the
Nebraska Supreme Court has recognized and accepted a uniform course of pro-
cedure for allowing attorney fees.
3. 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.
Appeals from the District Court for Douglas County: G erAld
e. morAn, Judge. Affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

Jeff C. miller, Duncan A. young, and keith I. kosaki, of
young & White Law Offices, for appellants.
Alan 	m. 	Thelen, 	Deputy 	Omaha 	City 	Attorney, 	for
appellees.
heAviCAn, 	C.J., 	WriGht, 	C onnolly, 	G errArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
WriGht, J.
NATUre Of CASe
Donald B. eikmeier and Cheryl eckerman (plaintiffs) signed
severance agreements with the city of elkhorn (elkhorn) prior
to the annexation of elkhorn by the City of Omaha (Omaha).
After litigation and an appeal to this court, Omaha approved
resolutions for compensation to eikmeier and eckerman but
denied their claims for attorney fees and prejudgment interest.
The plaintiffs filed separate lawsuits in Douglas County
District Court seeking attorney fees and prejudgment interest.
The cases were consolidated, and the district court affirmed the
actions of the Omaha City Council (City Council). The plain-
tiffs appeal from that judgment. We affirm.
SCOPe Of reVIeW
[1] The determination of the applicability of a statute is a
question of law, and when considering a question of law, the
appellate court makes a determination independent of the trial
court. Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520
N.W.2d 203 (1994).
fACTS
eikmeier and eckerman are former employees of elkhorn.
eikmeier was the city administrator, and eckerman was the
city clerk. each signed a severance agreement with elkhorn
providing for compensation if their employment was termi-
nated due to the annexation of elkhorn by Omaha.
Omaha annexed elkhorn on march 1, 2007, at which time
the plaintiffs’ employment was terminated. Before the effec-
tive date of the annexation, Omaha sought declaratory judg-
ments that the severance agreements violated the Nebraska
174 	280 NeBrASkA rePOrTS

constitutional provision prohibiting the payment of extra com-
pensation to public employees after services have been ren-
dered. We ultimately determined that the severance agreements
did not violate Neb. Const. art. III, § 19, and were valid and
enforceable. City of Omaha v. City of Elkhorn, 276 Neb. 70,
752 N.W.2d 137 (2008).
The plaintiffs filed claims pursuant to Neb. rev. Stat.
§ 14-804 (reissue 2007), seeking wages, attorney fees, and
prejudgment interest. eikmeier sought $56,167.55 in com-
pensation and $18,722.52 in attorney fees, and eckerman
sought $10,906.79 in compensation and $3,635.60 in attorney
fees. On April 14, 2009, the City Council approved resolution
No. 334 for eikmeier to receive compensation of $52,535.57
and resolution No. 335 for eckerman to receive compensation
of $10,890.52. It denied the plaintiffs’ requests for attorney
fees and prejudgment interest.
eikmeier and eckerman filed separate lawsuits seeking attor-
ney fees pursuant to the Nebraska Wage Payment and Collection
Act (NWPCA), Neb. rev. Stat. §§ 48-1228 to 48-1232 (reissue
2004 & Cum. Supp. 2008), specifically § 48-1231, and pre-
judgment interest on the awarded amounts. They did not dis-
pute the amounts determined by the City Council; they simply
contended that the City Council should have also awarded them
attorney fees and prejudgment interest.
relying on our opinion in Heimbouch v. Victorio Ins. Serv.,
Inc., 220 Neb. 279, 369 N.W.2d 620 (1985), the district court
determined that the compensation pursuant to the severance
agreements was not compensation for labor or services, but
was severance pay or liquidated damages which became due
upon termination of employment. Determining that sever-
ance pay did not fall under the NWPCA, the court found
that the City Council’s denial of attorney fees was appropri-
ate. The court also concluded that eikmeier and eckerman
could not recover prejudgment interest because such interest
does not accrue against political subdivisions pursuant to Neb.
rev. Stat. § 45-103.04(2) (reissue 2004). Accordingly, the
court affirmed the actions of the City Council. eikmeier and
eckerman appeal.
eIkmeIer v. CITy Of OmAhA 	175
Cite as 280 Neb. 173

ASSIGNmeNTS Of errOr
eikmeier and eckerman claim that the district court erred
in (1) failing to award attorney fees and (2) failing to award
prejudgment interest.
ANALySIS
Attorney fees
[2] A party may recover attorney fees and expenses in a
civil action only when a statute permits recovery or when the
Nebraska Supreme Court has recognized and accepted a uni-
form course of procedure for allowing attorney fees. Evertson
v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). After
recovering payments due under their severance agreements with
elkhorn, eikmeier and eckerman sought attorney fees pursuant
to the NWPCA. The issue is whether the amounts recovered in
accordance with the severance agreements are wages within the
scope of the NWPCA.
The NWPCA allows an employee having a claim for wages
which are not paid within 30 days of the regular payday to
recover the unpaid wages through the courts. See § 48-1231.
If the employee is successful, he or she is entitled to recover
attorney fees in an amount no less than 25 percent of the
unpaid wages. See id. Wages are “compensation for labor or
services rendered by an employee, including 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.” § 48-1229(4).
[3] When applying § 48-1229, we have held that a pay-
ment will be considered a wage subject to the NWPCA if (1)
it is compensation for labor or services, (2) it was previously
agreed to, and (3) all the conditions stipulated have been met.
Pick v. Norfolk Anesthesia, 276 Neb. 511, 755 N.W.2d 382
(2008). The plaintiffs argue that payments under the sever-
ance agreements constituted deferred compensation for labor
or services and not severance pay. They claim the payments
were consideration for their promises to continue to work for
elkhorn until it was annexed by Omaha.
We addressed the issue whether compensation paid after
the termination of employment is wages for purposes of the
176 	280 NeBrASkA rePOrTS

NWPCA in Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb.
279, 369 N.W.2d 620 (1985). In Heimbouch, an insurance
salesman who was an independent contractor sought payment
of “‘Termination Compensation’” pursuant to a contract with
the insurance company. 220 Neb. at 281, 369 N.W.2d at 622.
We concluded that the compensation due under the contract
was not payment for labor or services rendered but was a sever-
ance payment or liquidated damages which became due upon
the termination of the parties’ relationship.
Likewise, in Babb v. United Food & Commercial Workers
Local 271, 233 Neb. 826, 448 N.W.2d 168 (1989), we rejected
the claim that severance pay constituted wages under the
NWPCA. Gene L. Babb was president of a union, Local
1015, which merged with a second union, Local 271. After
the merger, Babb’s employment was terminated. Babb sought
severance pay from Local 271 in accordance with a policy
adopted by Local 1015 prior to the merger, on the grounds that
Local 271 had accepted all obligations of Local 1015 under the
merger agreement.
When Local 271 refused to pay, Babb invoked the arbitra-
tion provision of the merger agreement. The arbitrators denied
his claim, and Babb appealed, claiming that Local 271 was in
violation of the NWPCA. relying on Heimbouch, supra, we
concluded that the NWPCA did not apply to a “severance pay-
ment which becomes due upon termination of employment.”
Babb, 233 Neb. at 832, 448 N.W.2d at 172.
Similar to the severance agreement in Babb, eikmeier
and eckerman were entitled to receive payment only if their
employment was terminated due to the annexation, consoli-
dation, or merger of elkhorn with another municipal entity.
They were already receiving regular wages and benefits in
exchange for their labor and services performed for elkhorn.
Although the payments served as an incentive for eikmeier
and eckerman to remain employed by elkhorn, the payments
are not automatically characterized as in exchange for labor or
services. The payments pursuant to the severance agreements
were not earned and did not accrue through eikmeier’s and
eckerman’s continued labor. eikmeier and eckerman were
not entitled to compensation if they resigned, if they were
eIkmeIer v. CITy Of OmAhA 	177
Cite as 280 Neb. 173

terminated for just cause, or if the annexation did not occur.
Therefore, the payments are not compensation for labor or
services rendered.
eikmeier and eckerman also attempt to characterize our
opinion in City of Omaha v. City of Elkhorn, 276 Neb. 70,
752 N.W.2d 137 (2008), as a finding that the severance agree-
ment payments were wages. We disagree. In City of Omaha,
we determined that the severance agreements were valid and
enforceable and were not an unconstitutional gratuity. We did
not determine and it cannot be inferred that we concluded the
severance payments were wages under the NWPCA. As such,
eikmeier’s and eckerman’s claims of res judicata and collateral
estoppel are not applicable.
We find the compensation paid to eikmeier and eckerman
pursuant to the severance agreements was severance pay and is
not subject to the NWPCA. Their claims for attorney fees were
properly denied.
preJudGment interest
eikmeier and eckerman also seek prejudgment interest on
their claims accruing from July 29, 2008—the date of our man-
date confirming the validity of the severance agreements. They
claim that the amount of their claims was easily calculated as
of the time of the mandate.
Generally, prejudgment interest accrues on the unpaid bal-
ance of liquidated claims arising from an instrument in writing
from the date the cause of action arose until the entry of judg-
ment pursuant to Neb. rev. Stat. §§ 45-103.02(2) and 45-104
(reissue 2004). however, this rule is subject to § 45-103.04,
which states:
Interest as provided in section 45-103.02 shall not
accrue prior to the date of entry of judgment for:
(1) Any action arising under Chapter 42; or
(2) Any action involving the state, a political subdivi-
sion of the state, or any employee of the state or any of
its political subdivisions for any negligent or wrongful act
or omission accruing within the scope of such employee’s
office or employment.
178 	280 NeBrASkA rePOrTS

The plaintiffs argue that § 45-103.04(2) should be read to
prohibit prejudgment interest against a political subdivision
only when the claim involves a “negligent or wrongful act
or omission.” We find no merit to this argument. The phrase
“negligent or wrongful act or omission” appears between two
clauses that specifically and exclusively discuss government
employees. Accordingly, we interpret § 45-103.04(2) to pro-
hibit prejudgment interest for (1) any action involving the
state, (2) any action involving a political subdivision of the
state, or (3) any action involving an employee of the state
or political subdivision for any negligent or wrongful act or
omission accruing within the scope of such employee’s office
or employment.
This clarification is in line with our decision in Hammond
v. City of Broken Bow, 239 Neb. 437, 476 N.W.2d 822 (1991),
determining that § 45-103.04 (reissue 1988) precluded the
plaintiff’s claim for prejudgment interest against the city of
Broken Bow for claims accruing on or after January 1, 1987.
Likewise, we conclude that § 45-103.04 (reissue 2004) pre-
cludes eikmeier’s and eckerman’s claims against Omaha for
prejudgment interest on their severance agreement payments.
CONCLUSION
We conclude that the payments received by eikmeier and
eckerman were not wages under the NWPCA; therefore,
the plaintiffs are not entitled to attorney fees. furthermore,
§ 45-103.04 prohibits their claims for prejudgment interest.
eikmeier’s and eckerman’s claims were properly denied, and
the judgment of the district court is affirmed.
A ffirmed.
eIkmeIer v. CITy Of OmAhA 	179
Cite as 280 Neb. 173