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First Express Services Group, Inc. v. Easter (reargument)

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Date: 
Thursday, October 10, 2013

S-12-0304, First Express Services Group, Inc. v. Arlene A. Easter and Mark T. Easter (Appellants) and Miller Services Agency, Inc. d/b/a Davidson Insurance Agency and Real Estate n/k/a Easter and Associates

Otoe County, Judge Randall L. Rehmeier

Attorneys: Abbie J. Widger, Cameron E. Guenzel (Johnson Flodman Guenzel & Widger) (Appellant Mark Easter) --- Matthew D. Hammes (Locher Pavelka Dostal Braddy & Hammes LLC) (Appellant Arlene A. Easter) --- Heather Voegele-Anderson, David A. Yudelson (Koley Jessen PCLLO) (for First Express Services Group, Inc.)

Civil: Breach of contract; misappropriation of trade secrets and unjust enrichment.

Proceedings below: The jury returned verdicts in favor of First Express finding Arlene Easter breached the contract she entered, misappropriate trade secrets and was unjustly enriched. The jury found damages in the following amounts: $506,035.00 for breach of contract and $280,320.00 for misappropriation of trade secrets. The jury found Arlene Easter was unjustly enriched in the amount of $280,320.00. As for Mark Easter, the jury found in favor of First Express finding Mark Easter misappropriated trade secrets and was unjustly enriched as a result. The jury found Mark Easter’s conduct caused damages in the amount of $84,093.00 for misappropriation of trade secrets and $84,093.00 for unjust enrichment. Appellant Mark filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court. On June 19, 2013, the matter was ordered set for reargument on the October Call of the Nebraska Supreme Court.

Issues (Arlene Easter): The district court erred in (1) denying Arlene Easter’s motion for summary judgment, motions for directed verdict, motion for judgment nothwithstanding the verdict and motion for new trial; in regard to finding there was a legally enforceable contract; (2) denying Arlene Easter’s motion for summary judgment, motions for directed verdict, motion for judgment nothwithstanding the verdict and motion for new trial regarding there was a non-compete, non-solicitation and confidentiality provisions as there were overly broad and unreasonable as a matter of law which made the entire agreement void; (3) failing to properly direct the jury as to the burden of proof with regard to First Express’s breach of contract claim; (4) denying Arlene Easter’s motion for summary judgment, motions for directed verdict, motion for judgment nothwithstanding the verdict and motion for new trial regarding the misappropriation of trade secrets claim as the information at issue is not protected as a “trade secret” under Nebraska law; (5) denying Arlene Easter’s motion for summary judgment, motions for directed verdict, motion for judgment nothwithstanding the verdict and motion for new trial regarding the unjust enrichment claim; (6) failing to properly instruct the jury as to damages allowable to First Express with regard to its claims of misappropriation of trade secrets and claim of unjust enrichment.

Issues (Mark Easter): 1. The District Court erred in denying Mark Easter's motion for summary judgment regarding First Express's unjust enrichment claim because there was no evidence that Mark Easter engaged in wrongful conduct and the claim improperly sought profits protected by a corporate veil.2. The District Court erred in denying Mark Easter's motion for directed verdict regarding First Express's claim for misappropriation of trade secrets because the information at issue is not protected as a trade secret under Nebraska law and there was no evidence that Mark Easter engaged in wrongful conduct.3. The District Court erred in denying Mark Easter's motion for directed verdict regarding First Express's claim for unjust enrichment because there was no evidence that Mark Easter engaged in wrongful conduct and the claim improperly sought profits protected by a corporate veil. 4. The District Court erred in denying Mark Easter's motion for JNOV regarding First Express's claim for misappropriation of trade secrets because the information at issue is not protected as a trade secret under Nebraska law and there was no evidence that Mark Easter engaged in wrongful conduct.5. The District Court erred in denying Mark Easter's motion for JNOV regarding First Express's claim for unjust enrichment because there was no evidence that Mark Easter engaged in wrongful conduct and the claim improperly sought profits protected by a corporate veil.6. The District Court erred in denying Mark Easter's motion for new trial because the jury instructions wrongly included a claim for unjust enrichment, wrongly did not require evidence of Plaintiff piercing the corporate veil, wrongly instructed on damages as lost profits or unjust enrichment, wrongly included a claim for unjust enrichment without evidence Mark Easter acted unjustly, and wrongly allowed the jury to award future damages.7. The District Court erred in denying Mark Easter's motion for new trial because the award against Mark Easter was so excessive as to be the result of passion, prejudice, or mistake. 8. The District Court erred in denying Arlene Easter's Motions for Summary Judgment,

Directed Verdict, JNOV and New Trial because there is no evidence she misappropriated trade secrets and her actions did not proximately cause harm.

This page was last modified on Thursday, October 10, 2013