Clemens v. Emme

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLEMENS v. EMME
Cite as 316 Neb. 777
Elaine Clemens, appellant, v. Curtis Emme,
Personal Representative of the Estate of
Arthur D. Emme, deceased, appellee.
___ N.W.3d ___
Filed June 7, 2024. 	No. S-23-146.
1. Judgments: Estoppel: Appeal and Error. An appellate court reviews a
court’s application of judicial estoppel to the facts of a case for abuse of
discretion and reviews its underlying factual findings for clear error.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
3. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
4. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
5. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
6. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:44 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLEMENS v. EMME
Cite as 316 Neb. 777
7. Motions for New Trial: Appeal and Error. An appellate court reviews
the denial of a motion for new trial for an abuse of discretion.
8. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial process.
9. Estoppel. The doctrine of judicial estoppel protects the integrity of the
judicial process by preventing a party from taking a position inconsistent
with one successfully and unequivocally asserted by the same party in a
prior proceeding.
10. ____. Judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doc-
trine precludes a contradictory position without examining the truth of
either statement.
11. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
12. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
13. ____: ____: ____. The exclusion of evidence is ordinarily not prejudi-
cial where substantially similar evidence is admitted without objection.
14. Trial: Evidence: Testimony. Where the information contained in an
exhibit is, for the most part, already in evidence from the testimony of
witnesses, the exclusion of the exhibit is not prejudicial.
15. Partnerships: Intent. Being “co-owners” of a business for profit does
not refer to the co-ownership of property, but to the co-ownership of the
business intended to garner profits.
16. Partnerships: Words and Phrases. Co-ownership distinguishes part-
nerships from other commercial relationships such as creditor and
debtor, employer and employee, franchisor and franchisee, and landlord
and tenant.
17. Partnerships. Co-ownership generally addresses whether the parties
share the benefits, risks, and management of the enterprise such that
(1) they subjectively view themselves as members of the business rather
than as outsiders contracting with it and (2) they are in a better position
than others dealing with the firm to monitor and obtain information
about the business.
18. Partnerships: Proof. The objective indicia of co-ownership are com-
monly considered to be: (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. The five
indicia of co-ownership are only that; they are not all necessary to estab-
lish a partnership relationship, and no single indicium of co-ownership
is either necessary or sufficient to prove co-ownership.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLEMENS v. EMME
Cite as 316 Neb. 777
19. ____: ____. The party asserting the partnership relationship exists
has the burden of proving that relationship by a preponderance of the
evidence.
20. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion, as a formal act done in the course of judicial proceedings, is a
substitute for evidence and thereby waives and dispenses with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by an opponent is true.
21. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
unequivocal, and they do not extend beyond the intent of the admission
as disclosed by its context.
Appeal from the District Court for Holt County, Mark D.
Kozisek, Judge. Affirmed.
Frederick T. Bartell, of Fitzgerald, Vetter, Temple, Bartell &
Henderson, for appellant.
Tracey L. Buettner, of Stratton, DeLay, Doele, Carlson,
Buettner & Stover, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
This case concerns an alleged business partnership between
the appellant and the decedent, who were also intimate part-
ners, but who never married. After the jury found against the
appellant as to the existence of a business partnership, the
district court for Holt County, Nebraska, entered a judgment
against her and in favor of the personal representative of the
decedent’s estate. The appellant challenges the jury’s verdict,
as well as several rulings by the district court. Finding no error,
we affirm.
II. BACKGROUND
1. Factual Background
The decedent, Arthur Emme (Butch), established O’Neill
Body and Frame in O’Neill, Nebraska, in 1978. Butch’s

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLEMENS v. EMME
Cite as 316 Neb. 777
then-wife acted as his bookkeeper. She filed for divorce
in 1990.
Around that time, the appellant, Elaine Clemens, began
working at O’Neill Body and Frame. Clemens and Butch later
became intimately involved. They moved in together in 1992.
Thereafter, Clemens and Butch lived together while working
together at O’Neill Body and Frame and at other ventures,
including O’Neill Truck Service, two apartment complexes,
and cattle and ranching operations.
Clemens and Butch had a falling out in March 2015. Clemens
alleges that Butch subsequently closed or removed her name
from several bank accounts.
Butch died on June 14, 2017. Butch’s last will and testament
left the bulk of his estate to his son, Curtis Emme (Emme), who
was appointed copersonal representative of the estate. Randy
Hupp, Butch’s friend and former banker, was also appointed
copersonal representative of the estate but later resigned from
that position. Hupp is not a party to the present appeal.
2. Clemens Files Suit Seeking Declaration
That Partnership Existed
On August 24, 2017, Clemens filed suit against Emme and
Hupp, as the copersonal representatives of Butch’s estate,
alleging that she and Butch created a business partnership in
1992. Clemens acknowledged that the partnership did not use
a name and was not memorialized in a written agreement,
but she alleged that it continued until Butch dissociated from
it due to his death. 1 Clemens further alleged that before his
death, Butch breached his duties of loyalty and care to the
partnership. Clemens sought a declaration that a business
partnership existed between her and Butch, with each own-
ing equal interests in the partnership. Clemens also sought an
order accounting for and settling partnership assets and debts
1 See Neb. Rev. Stat. § 67-431(7)(a) (Reissue 2018) (partner who is
individual is dissociated from partnership upon partner’s death).

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Nebraska Supreme Court Advance Sheets
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CLEMENS v. EMME
Cite as 316 Neb. 777
and distributing such assets and debts equitably, as well as
related relief.
In their answer, Emme and Hupp denied Clemens’ allega-
tions as to the business partnership and alleged affirmative
defenses. Among those defenses was a request that if a busi-
ness partnership was found to exist, it include Clemens’ rental
properties.
3. Proceedings Regarding
Judicial Estoppel
Clemens moved for partial summary judgment on the ground
that Emme and Hupp were “estopped and precluded from
denying the existence of a partnership” between her and Butch.
In support of that claim, Clemens pointed to statements that
she and Butch made about their relationship during an earlier
action to surcharge Clemens, in her capacity as the personal
representative of the estate of Butch’s ex-wife, for allegedly
breaching her fiduciary duties to the estate. 2 Clemens also
pointed to language in the opinion of the Nebraska Court of
Appeals affirming the district court’s denial of the surcharge
petition, which opinion described Clemens as Butch’s “busi-
ness partner and significant other.” 3
The district court overruled Clemens’ motion for partial
summary judgment because it found that there was, at a
minimum, a genuine issue of material fact as to the business
relationship between Clemens and Butch. Specifically, the
district court declined to attribute the same significance that
Clemens did to Butch’s reference to her as “[his] secretary
. . . [b]usiness partner” during his deposition in the surcharge
action. The district court found that this statement failed to
eliminate any question as to whether Clemens and Butch were
business partners. The district court also found that the state-
ment was inconsistent with Butch’s testimony at the trial in
2 In re Estate of Murphy, No. A-12-1001, 2014 WL 396249 (Neb. App. Feb.
4, 2014) (selected for posting to court website).
3 Id. at *1.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLEMENS v. EMME
Cite as 316 Neb. 777
the surcharge action that Clemens was “[his] secretary. But
partner in the business, the ownership of it, [he was] the sole
proprietor of [his] property.”
As to Clemens’ own statement during the surcharge action
that she was Butch’s business partner, the district court found
it was immaterial because for judicial estoppel to apply, there
would need to be a change in position by Butch. The district
court similarly found that the Court of Appeals’ statement that
Clemens was Butch’s business partner was dictum because it
was not necessary to the decision of the surcharge action.
Clemens then filed an amended reply, again asserting that
Emme and Hupp were judicially estopped, or barred by the
doctrine against inconsistent positions, from asserting that a
business partnership did not exist between her and Butch.
After a bench trial, the district court entered a judgment in
favor of Emme and Hupp and against Clemens on the issue of
judicial estoppel and dismissed that theory of recovery with
prejudice. In so doing, the district court rejected Clemens’
argument that in the surcharge action, Butch took the posi-
tion that they were business partners when he testified as fol-
lows: “Q. . . . Clemens testified yesterday that [she was his]
partner; is that correct? A. Yes.” The district court observed
that Butch’s testimony could be construed to mean either that
Butch agreed Clemens was his partner or that Butch agreed
Clemens had testified she was his partner. The district court
also observed that “partner was not defined” and could mean a
business partner or a domestic partner. In addition, the district
court observed that Butch had otherwise testified that “[he
was] the sole proprietor of [his] property.” The district court
took a similar view of statements that Butch made describing
Clemens as his “business manager and secretary” and “his sec-
retary and . . . business partner.”
The district court also found that Butch did not assert any
position that was adopted by the court in the surcharge action,
as is required for judicial estoppel. The district court observed
that while Butch was named in the caption of the petition for

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Nebraska Supreme Court Advance Sheets
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CLEMENS v. EMME
Cite as 316 Neb. 777
surcharge, he was apparently never served with summons and
never made a party, no claim for refund from him appeared in
the record, and all issues raised adversely to Clemens in that
action were resolved without resort to any claimed position
taken by Butch. As to the Court of Appeals’ statement that
Clemens was Butch’s business partner, the district court con-
cluded that it was a “gratuitous comment” and not a finding of
fact, as Clemens argued.
4. Proceedings Regarding Partnership
A jury trial was then held regarding the existence of a busi-
ness partnership between Clemens and Butch. The evidence
adduced at the trial was voluminous. We summarize it below
as it pertains to the primary arguments raised by Clemens
on appeal.
(a) Formation of Partnership
Clemens testified that she and Butch formed a partnership
in the summer of 1990, after she went to O’Neill Body and
Frame to apply for a job. Clemens testified that Butch initially
told her that “he needed somebody in the office.” Clemens
also testified that several days after this conversation, Butch
came to her house and told her that his then-wife had served
him with divorce papers. According to Clemens, Butch said
that his then-wife “always worked with [him]” and that he
“need[ed] a new partner to come and work with [him].”
Clemens stated that she began working at O’Neill Body and
Frame several days later, without any discussion of her title or
compensation. Clemens also testified that the partnership sub-
sequently expanded to other ventures and that she contributed
primarily services to the partnership.
In contrast, an employee who worked at O’Neill Body
and Frame when Clemens started working there testified
that Butch told him in August 1990 that Clemens was being
“[brought] in to run the books, take care of the financials,
office manager, secretary.” The employee also testified that

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLEMENS v. EMME
Cite as 316 Neb. 777
he did not believe Clemens “was coming in as [his] boss” or
Butch’s partner. Emme, who himself worked for O’Neill Body
and Frame from 1991 to 2000, testified similarly that during
his time there, Butch was “in charge of the towing opera-
tion” and Clemens was the business manager and secretary,
although she also went on tow calls. Emme also testified that
in his subsequent review of the company’s documents after
his father died, he found “a lot” of documents identifying
Clemens as the business manager, but he “never located a
single document . . . that referenced her as a partner.”
(b) Clemens’ and Butch’s
References to One Another
Several witnesses testified that they heard Clemens and Butch
describe themselves as “business partner[s]” or “partner[s].”
However, other witnesses testified that they could not recall
Clemens or Butch making such statements. Among those who
could not recall Clemens or Butch mentioning a partnership
were Hupp and Butch’s accountants, both of whom testified
that they would have “done things differently” if they had been
told of a business partnership.
There was also evidence of a flyer for O’Neill Body
and Frame that stated, “Butch & Elaine Emme, Owners &
Operators.” Clemens testified that Butch drafted the flyer and
paid for it out of the O’Neill Body and Frame account, and
one of her witnesses recalled seeing the poster “around town.”
However, other witnesses testified that they never saw the flyer
or heard Butch refer to Clemens as “Elaine Emme.”
In addition, there was a letter written by Clemens to a
prospective employee inviting him to come “work for us” at
O’Neill Body and Frame. Clemens signed the letter as the
business manager.
(c) Alleged Cocontrol
Several witnesses testified that Clemens interviewed or
hired them for positions at O’Neill Body and Frame and

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CLEMENS v. EMME
Cite as 316 Neb. 777
instructed them on their duties. The witnesses also described
Clemens and Butch working “[h]and in hand,” “as a team,”
on tow calls at all hours and in all weather. There was similar
testimony that Clemens bid on and calved cattle and consigned
them for sale. In addition, Clemens described helping Butch
to determine what price to offer for a parcel of real property
and “physically sitting next to [him] when he was bidding.”
Clemens similarly described furnishing the apartments, draft-
ing leases, and dealing with tenants. Clemens opined that
Butch could not have drafted certain documents because he
did not “read and write very well.” Other witnesses testified
that “financial documents [were] not [Butch’s] forte.”
Emme’s witnesses, however, testified that Butch was “in
charge” and “always had the last word.” One witness testified
that on tow jobs, Clemens was “usually on the controls,” but
“Butch would tell her” what to do. This witness also testified
that “if [Clemens] had to order parts, [Butch] would tell her
what kind of parts.” The offer to the prospective employee
similarly stated that all “after hours in the shop” and “[w]ork
in the shop on [the employee’s] own vehicles” must be cleared
with Butch, although Clemens testified that she could have
given permission. Emme’s witnesses also disputed the sugges-
tion that Butch had difficulty comprehending financial state-
ments or other documents.
(d) Bank Accounts
Witnesses for both parties agreed there were “[p]erhaps as
many as five” bank accounts that listed Clemens and Butch
as joint owners or that were partnership or multiple-party
accounts. One of those accounts was the checking account for
O’Neill Body and Frame, which apparently financed many
of the alleged partnership’s activities, as well as Clemens
and Butch’s household. Clemens was a co-owner and joint
tenant with rights of survivorship on that account from 1995
to 2007. Hupp testified that in light of that designation,
Clemens was “an owner of th[e] account” during that period.

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CLEMENS v. EMME
Cite as 316 Neb. 777
But Hupp also testified that the account’s paperwork was
“contradictory” because it indicated a sole proprietorship.
According to Hupp, at one time, the bank listed multiple
names on sole proprietorship accounts “so that they could
have [an] authorized signer on there.” However, Hupp testi-
fied that this practice was discontinued in 2007 because it
was “unclear and not correct.” Hupp also testified that in
2007, Clemens was changed to an authorized signer on the
O’Neill Body and Frame checking account. Clemens testified
similarly that in 2007, “[t]he bank . . . changed their rules and
said that they couldn’t have a joint ownership on an account
with a sole proprietor.” But Clemens testified that she was
told “everything else remained the same” and that she did not
“intend to relinquish any rights [she] may have had” when she
agreed to the change.
There was also evidence of several bank accounts owned
solely by Butch with Clemens as an authorized signer.
(e) Real Property
Witnesses for both parties also agreed that all real estate,
personal property, and vehicles of the alleged partnership
were in Butch’s name and listed only on Butch’s personal
financial statements, not those of Clemens. Clemens testi-
fied that the real property, in particular, was in Butch’s name
because “[h]e liked to be able to go up to the land map and
say, It says Arthur D. Emme. He liked . . . to be able to say
that it was his. I think they call it a grandiose syndrome.”
Clemens testified similarly that the personal financial state-
ments were “done to satisfy banks” and were not “designed to
be entirely accurate.”
Clemens acknowledged that she owned multiple parcels of
property, collectively valued at $600,000, solely in her name,
but she maintained that Butch “didn’t want to be on” her prop-
erties. Clemens also acknowledged that she signed Butch’s
name on, witnessed, or notarized documents describing alleged
partnership properties as belonging solely to him.

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Nebraska Supreme Court Advance Sheets
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CLEMENS v. EMME
Cite as 316 Neb. 777
(f) Tax Documents and Ledgers
Witnesses for both parties similarly agreed that no partner-
ship tax returns were filed and that the assets and losses of
O’Neill Body and Frame were always listed on the Schedule
C of Butch’s individual tax returns. However, Clemens testi-
fied that the ledgers of O’Neill Body and Frame showed pay-
ments to her in and after 1999, when she no longer received
“W-2s or 1099s” from the company. Clemens testified simi-
larly that while the payments to her were initially for “[o]dd
number[s],” apparently meaning that they included fractions
of a dollar, the payments after April 1995 were for “even”
numbers. Clemens maintained that the ledgers showed that
she received a “flat draw,” without withholding, as a partner,
although she conceded that the ledgers did not reflect pay-
ments to Butch.
A former employee of O’Neill Body and Frame, however,
testified that he received an “even” amount, but that this was
not a draw and that he was not a partner. This employee also
testified that the company gave him a “1099,” rather than a
“W-2,” so that “[he] didn’t have to pay taxes” and “they didn’t
pay [his] Social Security.” Other witnesses testified similarly
that Butch “wanted to pay labor in cash” in part “[t]o avoid
paying taxes.”
(g) Other Evidence
There was evidence that Clemens and Butch co-owned a
livestock brand in 2010-13. However, Emme testified that
the brand was previously owned by his mother’s family, and
the brand’s ownership was subsequently transferred to him
and Butch.
Clemens also testified about “going to court” for O’Neill
Body and Frame. Several of the cases described were in small
claims court, and Clemens acknowledged that “in terms of . . .
representing O’Neill Body and Frame in court, [she was] or
would have had to have been [a] designated representative to
do that.”

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CLEMENS v. EMME
Cite as 316 Neb. 777
5. Motion for Directed Verdict
At the close of all the evidence, Clemens moved for a
directed verdict in her favor, on the grounds that Emme and
Hupp “both testified under oath” to all elements of a business
partnership. Specifically, Clemens argued that Emme and Hupp
had admitted that she and Butch were “two or more people”
who “joined together,” both contributing money, services, or
property, for purposes of associating to carry on a business for
profit and divide and share in the profits. Clemens also argued
that Butch’s testimony in the surcharge action constituted a
judicial admission, requiring that a verdict be directed in her
favor. Emme disagreed.
The district court overruled Clemens’ motion. In so doing,
the district court observed that for a judicial admission, a party
must testify clearly and unequivocally as to a fact within the
party’s knowledge. But the district court was not persuaded
Emme or Hupp had “facts within their knowledge as far as
the sharing of the profits, the intent of the parties and that sort
of thing.”
6. Jury Verdict and Judgment
The jury found that Clemens failed to meet her burden of
proof establishing that a partnership existed and failed to meet
her burden of proof establishing a presumption that a partner-
ship existed under Neb. Rev. Stat. § 67-410(3)(c) (Reissue
2018). The district court then entered judgment in favor of
Emme and against Clemens and dismissed Clemens’ complaint
with prejudice.
Clemens subsequently moved for judgment in her favor not-
withstanding the verdict or, alternatively, that the verdict be set
aside and a new trial be granted. That motion was overruled.
Clemens appealed, and we moved the matter to our docket. 4
4 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).

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CLEMENS v. EMME
Cite as 316 Neb. 777
III. ASSIGNMENTS OF ERROR
Clemens assigns, restated and reordered, that the district
court erred (1) in entering judgment in favor of Emme and
against her on the issue of judicial estoppel and related theo-
ries and dismissing such theories of recovery, (2) in its rulings
on alleged hearsay testimony, and (3) in refusing to enter a
directed verdict in her favor at the close of all evidence and
in overruling her motion to set aside the verdict and for a new
trial. Clemens also alleges that the jury verdict was clearly
wrong and was not supported by competent evidence.
IV. STANDARD OF REVIEW
[1] An appellate court reviews a court’s application of judi-
cial estoppel to the facts of a case for abuse of discretion and
reviews its underlying factual findings for clear error. 5
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection or exclude evidence on hearsay grounds. 6
[3] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. 7 In reviewing that determination, an appellate court gives
the nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence. 8
[4-6] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. 9 To sustain
a motion for judgment notwithstanding the verdict, the court
5 Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472 (2022).
6 Paw K. v. Christian G., 315 Neb. 781, 1 N.W.3d 467 (2024).
7 In re Estate of Koetter, 312 Neb. 549, 980 N.W.2d 376 (2022).
8 Id.
9 Id.

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CLEMENS v. EMME
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resolves the controversy as a matter of law and may do so
only when the facts are such that reasonable minds can draw
but one conclusion. 10 On a motion for judgment notwithstand-
ing the verdict, the moving party is deemed to have admitted
as true all the relevant evidence admitted that is favorable to
the party against whom the motion is directed, and, further,
the party against whom the motion is directed is entitled to the
benefit of all proper inferences deducible from the relevant
evidence. 11
[7] An appellate court reviews the denial of a motion for
new trial for an abuse of discretion. 12
The standard under which we review the jury’s verdict
requires more discussion. Clemens points to our decision in
In re Dissolution & Winding Up of KeyTronics 13 to suggest
that we try factual questions de novo on the record and reach
a conclusion independent of the findings of the trial court
because hers is an action for the dissolution of a partnership
and an accounting between partners, and such an action is
one in equity. 14 Clemens is correct that in In re Dissolution &
Winding Up of KeyTronics, we stated that in considering the
proper standard of review for the question of the existence
of a partnership, we apply the standard of review generally
applicable to the underlying action. 15 We also stated that an
action for the dissolution of a partnership and an accounting
between partners is one in equity and that such actions are
generally reviewed de novo on the record. 16
10 Id.
11 Id.
12 Id.
13 In re Dissolution & Winding Up of KeyTronics, 274 Neb. 936, 744 N.W.2d
425 (2008).
14 See, e.g., id.
15 Id.
16 Id.

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CLEMENS v. EMME
Cite as 316 Neb. 777
However, prior to In re Dissolution & Winding Up of
KeyTronics, we stated that where the existence of a partner-
ship is in dispute and the evidence is contradictory, the ques-
tion is for the jury under appropriate instructions. Our earlier
cases also stated that the verdict of a jury in such a case “will
not be set aside on the ground that it is against the weight of
testimony, unless it is clearly so.” 17
In the present case, though, we need not resolve the tension
between these two lines of cases because the evidence here is
insufficient under either standard to establish that a partner-
ship existed. 18
V. ANALYSIS
1. Emme Was Not Estopped From Denying
Existence of Business Partnership
Clemens’ first assignment of error concerns the district
court’s finding that Emme was not judicially estopped, or
barred by the doctrine of inconsistent positions, from denying
that she and Butch were business partners. Clemens claims
that “[w]hile sworn to tell the truth, under oath, during the
surcharge trial,” Butch unequivocally agreed that it was “cor-
rect” that she had testified she was “[his] partner.” 19 Clemens
also claims that there were “[n]umerous other instances of
Butch referring to [her] as his partner” during the surcharge
action. 20 As a result, Clemens argues that Emme should not
have been allowed to deny the existence of a business partner-
ship between her and Butch. Emme, on the other hand, argues
17 McCann v. McDonald & Co., 7 Neb. 305, 309 (1878). See, also, Blue
Valley State Bank v. Milburn, 120 Neb. 421, 232 N.W. 777 (1930);
Waggoner v. First Nat. Bank of Creighton, 43 Neb. 84, 61 N.W. 112
(1894).
18 See In re Estate of Wells, 221 Neb. 741, 380 N.W.2d 615 (1986).
19 Brief for appellant at 36.
20 Id. at 37.

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CLEMENS v. EMME
Cite as 316 Neb. 777
that the doctrines of judicial estoppel and inconsistent posi-
tions “do[] not apply to the facts of this case.” 21
[8,9] Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial
process. 22 The doctrine of judicial estoppel “protects the integ-
rity of the judicial process by preventing a party from taking a
position inconsistent with one successfully and unequivocally
asserted by the same party in a prior proceeding.” 23
[10] Fundamentally, the intent behind the doctrine of judi-
cial estoppel is to prevent parties from gaining an advantage
by taking one position in a proceeding and then switching
to a different position when convenient in a later proceed-
ing. 24 In other words, the doctrine is designed to “‘“prevent
parties from playing fast and loose with the courts.”’” 25
Judicial estoppel is, however, to be applied with caution so
as to avoid impinging on the truth-seeking function of the
court, because the doctrine precludes a contradictory posi-
tion without examining the truth of either statement. 26 We
have also held that before a court may apply the doctrine of
judicial estoppel, “‘bad faith or an actual intent to mislead on
the part of the party asserting inconsistent positions must be
demonstrated.’” 27
In light of the foregoing principles, we find that even if
Butch were seen to have been a party to the surcharge action
for purposes of the application of the doctrine of judicial
estoppel, his position in that action was not inconsistent with
Emme’s position here, because Butch never unequivocally
21 Brief for appellee at 16.
22 Becher, supra note 5.
23 Id., 311 Neb. at 20, 970 N.W.2d at 488.
24 Id.
25 Id.
26 Id.
27 Id.

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stated that Clemens was his business partner. 28 Clemens relies
primarily upon the following testimony by Butch in the sur-
charge action: “Q. . . . Clemens testified yesterday that [she
was his] partner; is that correct? A. Yes.” However, Butch’s
statement can be construed in several ways, as the district
court observed. The statement could mean that Butch agreed
Clemens was his partner or that Butch agreed Clemens had
testified she was his partner. The statement could also refer
to a business partner or an intimate partner. Moreover, imme-
diately after the exchange in question, Butch testified that
Clemens was “[his] secretary. But partner in the business, the
ownership of it, [he was] the sole proprietor of [his] property.”
There is similar ambiguity in Butch’s other statements in the
surcharge action, including his description of Clemens as
“[his] secretary . . . [b]usiness partner.”
Furthermore, even if Butch were seen to have taken the
position that Clemens was his business partner, the result
would be the same because that position was not successfully
asserted in the surcharge action. As we have explained, for a
party to have successfully asserted a position in a prior action
for purposes of judicial estoppel, “the party must have been
successful in getting the first court to accept the position.” 29
“[A]bsent such acceptance, the doctrine of judicial estoppel
does not apply.” 30 Judicial acceptance does not require that a
party prevail on the merits. 31 However, the position urged by
28 Cf., deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017)
(claim for breach of contract not inconsistent with fraud claim, where fraud
claim was premised on existence of contract); Burns v. Nielsen, 273 Neb.
724, 732 N.W.2d 640 (2007) (not necessarily inconsistent for employer to
contest compensability of injury before Workers’ Compensation Court and
also claim subrogation interest in proceeds of third-party settlement).
29 Jardine v. McVey, 276 Neb. 1023, 1032, 759 N.W.2d 690, 697 (2009).
30 Id.
31 Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938
N.W.2d 329 (2020).

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the party must have been “adopted” by the first court “either as
a preliminary matter or as part of a final disposition.” 32
For example, in TFF, Inc. v. SID No. 59, 33 we found that
the plaintiff was judicially estopped from asserting that the
SID’s assessments were invalid in a claim against the SID.
We did so because the plaintiff had previously recovered a
judgment from another party on a claim for breach of contract
that was premised on the theory that the SID’s assessments
were valid. 34 We took a similar view in O’Connor v. Kearny
Junction. 35 In that case, a landlord sought to assert that a
condition precedent for an option to purchase real property
had not been met in response to a claim for damages for the
landlord’s delay in allowing the purchase of the property. 36 We
found that the landlord was judicially estopped from doing so
because the landlord had previously persuaded the court to
order the sale of the property on the theory that the option had
been duly exercised. 37
Here, in contrast, the position that Clemens and Butch
were business partners was not adopted by the court in the
surcharge action as a preliminary matter or as part of the final
disposition. In fact, the petition in the surcharge action alleged
that it was the “intimate relationship” between Clemens and
Butch, and not their alleged business partnership, that caused
Clemens’ dealings with Butch, in her capacity as personal
representative of Butch’s ex-wife’s estate, to conflict with her
32 Id. at 19, 938 N.W.2d at 344.
33 TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
34 Id.
35 O’Connor v. Kearny Junction, 295 Neb. 981, 893 N.W.2d 684 (2017).
36 Id.
37 Id. Cf., Western Ethanol Co., supra note 31; Hike v. State, 297 Neb. 212,
899 N.W.2d 614 (2017); Jardine, supra note 29; Stewart v. Bennett, 273
Neb. 17, 727 N.W.2d 424 (2007); In re Loyal W. Sheen Family Trust, 263
Neb. 477, 640 N.W.2d 653 (2002); Vowers & Sons, Inc. v. Strasheim, 254
Neb. 506, 576 N.W.2d 817 (1998); Melcher v. Bank of Madison, 248 Neb.
793, 539 N.W.2d 837 (1995).

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duties to the estate. 38 The court’s decisions in the surcharge
action were similarly based on matters other than the existence
of the alleged business partnership. Specifically, the court
ruled in Clemens’ favor and against the surcharge petitioner
because the petitioner failed to meet his “initial burden of
proof to show that Clemens’ [dealings] benefited [her] at the
estate’s expense.” 39
It is true that the Court of Appeals described Clemens as
Butch’s “business partner” in its opinion affirming the denial
of the surcharge petition. 40 However, that statement, which was
made in the opinion’s opening paragraph, prior to the recitation
of the background facts, cannot be seen to have been adopted
by the Court of Appeals, because it played no role in the Court
of Appeals’ conclusion that the petitioner failed to produce
evidence showing the value of over 200 items of Butch’s
ex-wife’s personal property that Clemens allegedly failed to
account for or showing that Butch’s bill for hauling personal
property for the estate was excessive. 41 Instead, the statement
was dictum, as the district court observed.
Clemens argues that the Court of Appeals’ statement is not
dictum because it did not concern “‘some question of law.’” 42
Clemens bases this argument on a 1924 opinion of this court,
wherein we define dictum as “‘[a]n opinion expressed by a
court upon some question of law which is not necessary to
the decision of the case before it.’” 43 However, we elsewhere
define dictum more broadly to mean a “judicial opinion[]
expressed by the writer on a point that is not necessarily
raised and not involved in the case, or on a point in which
38 In re Estate of Murphy, supra note 2, 2014 WL 396249 at *3.
39 Id. at *9.
40 Id. at *1.
41 Id.
42 Brief for appellant at 37 (emphasis omitted).
43 Id. (quoting Sedlacek v. Welpton Lumber Co., 111 Neb. 677, 197 N.W. 618
(1924)).

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the judicial mind was not directed to the precise question
necessary to be determined to fix the rights of the parties.” 44
Under this broader definition, which is consistent with the
general meaning of “dictum” as a legal term of art, 45 the Court
of Appeals’ statement was dictum because the court’s opin-
ion regarding the business relationship between Clemens and
Butch was not directed to the precise question necessary to be
determined to fix the parties’ rights in the surcharge action.
Clemens’ corollary claim that the Court of Appeals’ state-
ment that she and Butch were business partners was a “factual
finding,” having the effect of a jury verdict, is similarly with-
out merit. 46 A finding of fact is a “‘determination concern[ing]
whether the evidence showed that something occurred or
existed.’” 47 The Court of Appeals’ statement that Clemens
was Butch’s business partner was not a finding of fact in this
sense because the parties in the surcharge action did not dis-
pute whether Clemens and Butch were business partners, and
the trier of fact did not have to decide that question.
Accordingly, because Butch never unequivocally stated in
the surcharge action that Clemens was his business partner,
and because the courts in that action did not adopt the posi-
tion that Clemens and Butch were business partners, the dis-
trict court did not abuse its discretion in finding that Emme
was not judicially estopped or otherwise barred from denying
44 City of Lincoln v. Steffensmeyer, 134 Neb. 613, 616, 279 N.W. 272, 273
(1938). See, also, Securities Acceptance Corp. v. Brown, 171 Neb. 406,
106 N.W.2d 456 (1960) (statement not dictum where question fairly arises
in course of trial and there is distinct decision of question), clarified on
denial of rehearing on other grounds 171 Neb. 701, 107 N.W.2d 540
(1961).
45 See Black’s Law Dictionary 569 (11th ed. 2019) (defining “judicial
dictum” to mean opinion by court on question that is not essential to
decision and therefore not binding).
46 Brief for appellant at 37.
47 Quilang v. Dep’t of Soc. & Health Services, 25 Wash. App. 2d 164, 181
n.7, 527 P.3d 73, 83 n.7 (2022).

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the existence of a business partnership between Clemens
and Butch.
2. No Error in Rulings
on Alleged Hearsay
Clemens’ second assignment of error concerns the district
court’s rulings on alleged hearsay at the trial. Clemens argues
that the district court improperly allowed Emme and Hupp to
testify about statements made by Butch, but refused to allow
her to introduce an exhibit containing her own prior consistent
statement that she was Butch’s business partner. Emme coun-
ters that the testimony regarding Butch’s statements to which
he understands Clemens to refer was not hearsay because it
was not offered for the truth of the matter asserted. Emme
also argues that the exclusion of Clemens’ exhibit was proper
or, alternatively, was not prejudicial to her.
[11] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. 48 Hearsay is
not admissible unless otherwise provided for in the Nebraska
Evidence Rules or elsewhere. 49 However, by definition, state-
ments are not hearsay if they are consistent with the declarant’s
testimony and are offered to rebut an express or implied charge
against the declarant of recent fabrication, improper influence,
or improper motive under Neb. Rev. Stat. § 27-801(4)(a)(ii)
(Cum. Supp. 2022). 50
(a) Clemens Failed to Identify Any Objections
That She Made on Hearsay Grounds
A cursory review of the bill of exceptions in this case
shows that Clemens objected to certain statements at the trial
on hearsay grounds and that the district court overruled some
48 State v. Clark, 315 Neb. 736, 1 N.W.3d 487 (2024).
49 Id.
50 See, e.g., State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).

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of those objections. However, Clemens does not cite any
of those statements in her brief on appeal in support of this
assignment of error. Instead, Clemens cites to portions of the
bill of exceptions containing her oral motion in limine to bar
Hupp from testifying as an expert on banking matters, as well
as several statements to which she did not object at trial. This
is insufficient for us to review Clemens’ claim that Emme and
Hupp were improperly allowed to testify about statements
made by Butch. As an appellate court, we decline to scour the
record on appeal in search of hearsay objections by Clemens
that were overruled by the district court that might support
her claim. 51
(b) Clemens Not Prejudiced by Exclusion
of Her Exhibit on Hearsay Grounds
As to Clemens’ claim that the district court improperly
excluded evidence of her own prior consistent statement that
she and Butch were business partners, there is no merit. At
the trial in the present matter, Clemens sought to introduce an
exhibit that contained the following excerpt from her deposi-
tion in the surcharge action:
Q. And what is your occupation?
A. I’m a business manager and a partner at O’Neill
Body & Frame.
Q. And who is your partner?
A. Butch Emme, also known as Arthur.
Q. Is there a formal partnership arrangement?
A. No.
Q. How long have you been a partner?
A. 22 years almost, 21 and some months.
Clemens argues that her exhibit constituted a prior consist-
ent statement, introduced to rebut what she characterizes as
Emme’s “allegation and inference . . . that she had recently
51 See, e.g., State v. Boppre, 315 Neb. 203, 995 N.W.2d 28 (2023); State v.
Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).

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fabricated her [claim] that she and Butch were partners when
she filed this lawsuit.” 52
[12-14] However, even assuming that the exhibit in question
is not hearsay, Clemens was not prejudiced by its exclusion
because immediately after the exhibit was excluded, Clemens
herself testified that she had previously “testified in court”
that Butch referred to her as “his business partner.” In a civil
case, such as this, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. 53 The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection. 54 In particular, where the infor-
mation contained in an exhibit is, for the most part, already in
evidence from the testimony of witnesses, as was the case here,
the exclusion of the exhibit is not prejudicial. 55
Accordingly, because Clemens failed to identify any hear-
say that the district court admitted over her objections, and
because she was not prejudiced by the exclusion of the exhibit
containing her own prior statement that she and Butch were
business partners, the district court did not abuse its discretion
in its rulings on the alleged hearsay.
3. Proof of Business Partnership
Under Nebraska Law
Before turning to Clemens’ remaining assignments of error,
both of which relate to the alleged existence of a business
partnership between her and Butch, we briefly review the legal
framework governing such partnerships in Nebraska.
[15,16] At all relevant times, Nebraska law defined a
“partnership” as an association of two or more persons “to
52 Brief for appellant at 47.
53 In re Estate of Walker, 315 Neb. 510, 997 N.W.2d 595 (2023).
54 Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023).
55 Id.

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carry on . . . a business for profit.” 56 Being “co-owners” of
a business for profit does not refer to the co-ownership of
property, but to the co-ownership of the business intended to
garner profits. 57 Co-ownership distinguishes partnerships from
other commercial relationships such as creditor and debtor,
employer and employee, franchisor and franchisee, and land-
lord and tenant. 58
[17,18] Co-ownership generally addresses whether the par-
ties share the benefits, risks, and management of the enterprise
such that (1) they subjectively view themselves as members of
the business rather than as outsiders contracting with it and
(2) they are in a better position than others dealing with the
firm to monitor and obtain information about the business. 59
The objective indicia of co-ownership are commonly con-
sidered to be: (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. 60
However, the five indicia of co-ownership are only that; they
are not all necessary to establish a partnership relationship,
and no single indicium of co-ownership is either necessary or
sufficient to prove co-ownership. 61
[19] The party asserting the partnership relationship exists
has the burden of proving that relationship by a preponder-
ance of the evidence. 62 However, by statute, a person who
receives a share of the profits of a business is presumed to
be a partner in the business unless the profits were received
56 See Neb. Rev. Stat. § 67-402(6) (Reissue 2018). See, also, Peterson v.
Massey, 155 Neb. 829, 53 N.W.2d 912 (1952) (discussing definition of
“partnership,” then codified in Neb. Rev. Stat. § 67-306 (1943)).
57 In re Dissolution & Winding Up of KeyTronics, supra note 13.
58 See id.
59 Id.
60 Id.
61 Id.
62 Heritage Bank v. Kasson, 22 Neb. App. 401, 853 N.W.2d 868 (2014). Cf.
In re Dissolution & Winding Up of KeyTronics, supra note 13.

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in payment for services as an independent contractor or of
wages or other compensation to an employee or under speci-
fied circumstances not relevant here. 63
4. Motion for Directed Verdict and Motion to
Set Aside Verdict and for New Trial
Were Properly Overruled
Clemens’ third assignment of error concerns the overruling
of her motion for a directed verdict in her favor on the ques-
tion of whether there was a business partnership between her
and Butch, as well as the overruling of her subsequent motion
to set aside the verdict and for a new trial. Clemens argues
that Emme and Hupp testified at the trial in the present matter
that she and Butch joined together to carry on a business for
profit and share in the profits. As such, she argues that Emme
and Hupp judicially admitted all the elements of a business
partnership. Alternatively, Clemens argues that the other evi-
dence presented at the trial established the existence of a busi-
ness partnership. Emme disagrees.
(a) Emme and Hupp Did Not Judicially Admit
Elements Required to Prove Partnership
Between Clemens and Butch
[20,21] A judicial admission, as a formal act done in the
course of judicial proceedings, is a substitute for evidence and
thereby waives and dispenses with the production of evidence
by conceding for the purpose of litigation that the proposition
of fact alleged by an opponent is true. 64 Judicial admissions
must be deliberate, clear, and unequivocal, and they do not
extend beyond the intent of the admission as disclosed by its
context. 65 Where a party testifies clearly and unequivocally to
a fact within his or her own knowledge, such testimony may
63 § 67-410(3)(c).
64 In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021), modified on
denial of rehearing on other grounds 310 Neb. 389, 966 N.W.2d 268.
65 Id.

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be considered as a judicial admission. 66 That rule has particu-
lar application where the parties so testifying made no effort
to retract, qualify, or otherwise explain the positive force of
their own evidence. 67
In the present case, even assuming that Hupp can be seen
as an opponent, given that he resigned as copersonal repre-
sentative before the trial, the statements by Hupp upon which
Clemens relies fall short of judicially admitting all elements
of a business partnership. Hupp did testify that he had no
reason to believe that the various ventures here were anything
other than for-profit businesses. However, while that is an ele-
ment of a business partnership, it is not one that is disputed
by the parties. 68
Instead, the parties dispute whether Clemens and Butch
joined together to carry on those businesses and share in the
profits. On those questions, the majority of the relevant tes-
timony by Hupp was less conclusive than Clemens suggests.
In the excerpts from the bill of exceptions cited by Clemens,
Hupp testified that Butch’s “business components” changed
over time; that O’Neill Truck Services “came into creation,”
apartments were “involved,” and there was a cattle opera-
tion; and that the value of Butch’s assets was greater at his
death than in 1990. However, none of that testimony estab-
lishes that Clemens and Butch joined together to carry on
those businesses and share in the profits. The same is true of
Hupp’s testimony that Clemens was “part of the transactions”
with O’Neill Body and Frame from the time he began work-
ing as the company’s banker in 1994 and that the ledgers for
O’Neill Body and Frame showed payments to Clemens. Hupp
never specified what Clemens’ part in those transactions was.
66 See, e.g., Reicheneker v. Reicheneker, 264 Neb. 682, 651 N.W.2d 224
(2002).
67 Id.
68 Cf. In re Dissolution & Winding Up of KeyTronics, supra note 13
(business qualifies as business for profit so long as parties intended to
carry on business with expectation of profits).

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And as to the payments to Clemens, Hupp disclaimed know-
ing whether she was “an employee, an independent contractor
or a partner.”
Clemens also points to Hupp’s testimony that she was a co-
owner of the O’Neill Body and Frame checking account from
1995 to 2007. However, as recounted above in our descrip-
tion of the trial, Hupp qualified that testimony by explaining
that during that period, the bank listed persons as co-owners
on sole proprietorship accounts in order to designate them as
authorized signers.
Otherwise, the testimony by Hupp upon which Clemens
relies was that he did not recall any discussions with her or
Butch about whether they had a business partnership and he
had no knowledge of who owned the cattle brand.
The testimony by Emme upon which Clemens relies simi-
larly falls short of establishing a business partnership. Clemens
points to Emme’s statement that he heard Hupp’s “testimony
about the quantity and quality of work done by . . . Clemens
in th[e] various operations” and would “agree with [it].” Hupp
testified that Clemens “worked more than 40 hours per week
. . . for many years” and was “a very hard worker.” But people
can work a significant number of hours and perform their
work diligently without being partners in a business.
(b) Other Evidence Cited by Clemens Was Insufficient
to Warrant Directed Verdict in Her Favor
The other evidence cited by Clemens is similarly insuf-
ficient for us to find that the district court erred in failing
to direct a verdict in her favor. As stated above, a directed
verdict is proper only when reasonable minds cannot differ
and can draw but one conclusion from the evidence. 69 Here,
however, the evidence regarding the existence of a business
partnership cut both ways, such that reasonable minds could
draw differing conclusions.
69 In re Estate of Koetter, supra note 7.

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Clemens points specifically to evidence that she and Butch
had “numerous bank accounts” that were jointly owned or
were partnership accounts, described themselves as partners
in the surcharge action, held themselves out to the commu-
nity as business partners, referred to each other as “business
partners,” and operated the businesses as a partnership. 70
However, as was recounted in our description of the trial,
there was also evidence that the bank responsible for the
O’Neill Body and Frame checking account listed persons as
co-owners on sole proprietorship accounts in order to des-
ignate them as authorized signers and that other accounts
were solely owned by Butch. Butch’s statements during the
surcharge action about his relationship with Clemens were
equivocal, as was previously explained. Likewise, while some
witnesses recalled Clemens and Butch describing themselves
as partners, others did not. The testimony was similarly incon-
clusive as to whether Clemens and Butch exercised cocontrol
of the businesses.
Clemens also points to the fact that she “represented the
partnership in numerous . . . civil litigation cases” 71 as evi-
dence that there was a business partnership. In her testimony
at the trial, Clemens specifically mentioned suits in small
claims court and serving as the designated representative of
O’Neill Body and Frame. Neither necessarily proves that
she was a partner. An employee may represent a partnership,
limited liability company, corporation, or other kind of orga-
nization or entity in small claims court and can also serve as
its designated representative. 72 Insofar as Clemens claims that
her “representation” went beyond that, we would note that a
partnership must be represented by a member of the bar. 73 A
70 Brief for appellant at 45.
71 Id.
72 See Neb. Rev. Stat. § 25-2803 (Cum. Supp. 2022).
73 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015) (citing Anderzhon/Architects v. 57 Oxbow II Partnership, 250 Neb.
768, 553 N.W.2d 157 (1996)).

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legal proceeding in which a party is represented by a person
not admitted to practice law is a nullity and is subject to
dismissal. 74 Individuals can represent themselves in legal pro-
ceedings in their own behalf, but one who is not an attorney
cannot represent others. 75
(c) Neither Setting Aside Verdict
nor New Trial Was Warranted
Clemens’ argument regarding the overruling of her motion
to set aside the verdict and for a new trial is derivative of her
claim that Emme and Hupp judicially admitted the elements of
a business partnership. Because that claim fails for the reasons
set forth above, the district court cannot be said to have erred
in overruling Clemens’ motion to set aside the verdict or for
a new trial.
5. Jury Verdict Was Not Clearly Wrong and
Was Supported by Competent Evidence
Clemens’ fourth and final assignment of error concerns
the jury’s verdict in favor of Emme and against her. Clemens
argues that the verdict was clearly wrong and was not supported
by competent evidence. Clemens argues that she met her bur-
den to show “‘the association of two or more persons to carry
on as co-owners a business for profit.’” 76 Specifically, as evi-
dence of her and Butch’s association, Clemens points to their
alleged “refer[ences] to each other as ‘business partners.’” 77
Similarly, as evidence of carrying on as co-owners, Clemens
points to her and Butch’s “operat[ing] numerous businesses
and acquir[ing] real estate through their joint efforts over
decades of work.” 78 Emme, on the other hand, argues that
74 Steinhausen, supra note 73.
75 Id.
76 Brief for appellant at 48.
77 Id. at 49.
78 Id. at 48.

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there was “more than enough objective evidence on which to
base the jury verdict in favor of [him].” 79
We agree with Emme. As we explained when discussing
Clemens’ claim that the district court erred in failing to direct
a verdict in her favor, the evidence regarding her and Butch’s
references to each other and their conduct of the businesses
was mixed. However, Clemens had the burden to prove by
a preponderance of the evidence that a business partnership
existed between her and Butch. Even when reviewing an
equity case de novo on the record where evidence is in dis-
pute, we may give weight to the fact that the fact finder heard
and observed the witnesses and accepted one version of the
facts rather than another. 80
Here, there was no written partnership agreement; there
were no partnership tax returns ever filed; there was no real or
personal property titled jointly in the names of Clemens and
Butch; though five bank accounts were titled as co-owners,
other bank accounts were not, and there was an explanation
as to why Clemens was listed as a co-owner on the account
for O’Neill Body and Frame for a period of time; there was
no evidence that Clemens and Butch were jointly responsible
for any indebtedness; there was no evidence that Clemens
was responsible for any losses incurred by the businesses;
and there was conflicting evidence as to whether Clemens had
control over the business. As such, we find the jury determina-
tion to be correct.
VI. CONCLUSION
There is no merit to Clemens’ assignments of error regard-
ing judicial estoppel, alleged hearsay evidence, her motion for
a directed verdict, her motion to set aside the verdict and for a
new trial, or the jury verdict in Emme’s favor and against her.
Accordingly, we affirm the rulings of the district court.
Affirmed.
79 Brief for appellee at 28.
80 RGR Co. v. Lincoln Commission on Human Rights, 292 Neb. 745, 873
N.W.2d 881 (2016).