Sellers v. Reefer Sys., Inc.

305 Neb. 868

943 N.W.2d 275

William SELLERS, appellee,

v.REEFER SYSTEMS, INC., appellant.

No. S-19-082.

Supreme Court of Nebraska.

Filed May 22, 2020

Tanya J. Hansen, of Smith, Johnson, Allen, Connick & Hansen, Grand Island, for appellant.

Joel D. Nelson, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

In an appeal of a workers’ compensation case, wherein the award to the employee was affirmed, the Nebraska Court of Appeals denied the employee's motion for attorney fees for his counsel's appellate work, despite the statutory mandate under Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) that reasonable attorney fees shall be allowed to the employee by the appellate court if the employer files an appeal from a workers’ compensation award and fails to obtain any reduction in the amount of such award. We hold that the affidavit submitted by the employee's attorney, which mentioned a contingency fee agreement, presented the total number of hours worked on the appeal with a couple of examples of tasks performed, set forth an hourly rate, averred that the total hours claimed were calculated from business records itemizing the same, and averred in the attorney's expert opinion that the hours and rate were reasonable, sufficiently justifies under Neb. Ct. R. App. P. § 2-109(F) (rev. 2014) reasonable attorney fees to which the employee has a statutory right. We reverse the judgment and remand the matter to the Court of Appeals to determine the amount of the fee.

BACKGROUND

William Sellers was injured while working for Reefer Systems, Inc., in 2007. In 2019, the Workers’ Compensation Court awarded him permanent total disability benefits. Reefer Systems appealed the award to the Court of Appeals. The Court of Appeals affirmed the award in all respects in a memorandum opinion issued on October 8, 2019.¹

Sellers timely filed a motion in the Court of Appeals for an award of reasonable attorney fees pursuant to § 48-125(4)(b) for the reason that the employer appealed the trial court decision and there was no reduction in the amount of the award on appeal.

Attached to the motion is the affidavit of Sellers’ counsel who worked on the appeal. Counsel avers that he spent 37.8 hours in total on the appeal, beginning April 18, 2019, and ending May 7, and opines that was "a reasonable amount of time for the work involved." Counsel describes that he has been an attorney since 1997 and that since 1999, a substantial portion of his practice has been workers’ compensation cases. He avers that his hourly rate ranges from $140 to $245 per hour, that he is generally familiar with hourly rates charged by other litigation attorneys in this geographic area, and that an hourly rate of $200 per hour for his work on Sellers’ appeal would be reasonable and consistent with fees charged in this area for attorneys of similar background and skill.

Counsel avers, further, that he derived the number of hours spent on the appeal from an audit of records maintained by his law firm's staff and himself, consistent with their regular and established business practices. He notes that the audit revealed its first entry on April 18, 2019, as reviewing the bill of exceptions, and, as its last entry, revising Sellers’ brief. The hours assigned to these particular tasks is not set forth. No other tasks are specifically delineated. The referenced records were not attached to the affidavit. Counsel notes in the affidavit that he represented Sellers "on a contingent fee." The details of that arrangement are not otherwise described.

The Court of Appeals denied the motion for attorney fees on the ground that counsel's affidavit did not provide sufficient information to justify the reasonableness of the attorney fees sought. The Court of Appeals issued the following minute entry:

[Sellers’] motion for attorney fees denied. Affidavit fails to justify amount of attorney fees sought. See Neb. Ct. R. App. P. § 2-109(F). See also St. John v. Gering Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019) (in seeking attorney fee[s], lawyer has burden of proving not only extent and value of services provided, but also existence and terms of fee contract).

We granted Sellers’ petition for further review of this order of the Court of Appeals which overruled his motion for attorney fees.

ASSIGNMENTS OF ERRORS

Sellers assigns that the Court of Appeals erred in (1) overruling Sellers’ motion for statutory attorney fees and (2) imposing a burden of proof regarding attorney fees derived from fee disputes between attorneys or between an attorney and client.

STANDARD OF REVIEW

Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.²

Because Nebraska Supreme Court rules are construed in the same manner as statutes, an appellate court does so independently of the conclusion of the lower court.³

A court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.⁴

ANALYSIS

Section 48-125(4)(b) provides for mandatory attorney fees for appellate work in circumstances where the employer appeals and fails to obtain any reduction in the award:

If the employer files an appeal from an award of a judge of the compensation court and fails to obtain any reduction in the amount of such award, the Court of Appeals or Supreme Court shall allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such appeal.

(Emphasis supplied.)

Section 2-109(F) of the Supreme Court rules sets forth the general procedure by which an employee must request the attorney fees allowable under § 48-125(4),⁵ inasmuch as it sets forth the procedure for any litigant seeking from our appellate courts attorney fees to which there is a right under law or custom. Section 2-109(F) provides in relevant part:

Any person who claims the right under the law or a uniform course of practice to an attorney fee in a civil case appealed to the Supreme Court or the Court of Appeals must file a motion for the allowance of such a fee supported by an affidavit which justifies the amount of the fee sought for services in the appellate court.

(Emphasis supplied.) Sellers’ motion for attorney fees pursuant to § 48-125(4)(b) was timely under § 2-109(F), but the parties dispute whether the supporting affidavit adequately justifies "reasonable" attorney fees.

In denying Sellers’ motion, the Court of Appeals concluded that the affidavit submitted under § 2-109(F) was inadequate because it did not provide the details of the fee agreement between Sellers and his attorney. This was in error. We have never held that in order to recover statutory "reasonable" attorney fees, the attorney must submit the details of the attorney-client agreement. Neither is such evidence specified in § 2-109(F) as a necessary component to the justification of an appellate attorney fees.

We have affirmed allowances of statutory attorney fees for trial work despite a lack of proof as to any fee agreement. In Dale Electronics, Inc. v. Federal Ins. Co. ,⁶ we held under a statute setting forth the right to "reasonable" attorney fees that the attorney-fee allowance for the work of in-house counsel should be for the time actually engaged in the work to the same extent as outside counsel; evidence of counsel's annual salary was not required. And in Black v. Brooks ,⁷ we affirmed the lower court's award of statutory "reasonable attorney's fees"⁸ to which the successful tenant was entitled under Nebraska's Uniform Residential Landlord and Tenant Act (URLTA),⁹ even though the tenant was represented on a pro bono basis without any provision under the agreement for payment to the attorney in the event of an award of statutory fees.

In Black , we indicated that the tenant "need only present some evidence to the trial court upon which the court can make a meaningful award."¹⁰ We observed, "We have never said a fee agreement or any other agreement showing an obligation of the client to pay the attorney fees to the attorney is part of the proof that must be proffered in order to support an award of statutory attorney fees."¹¹

We reasoned in Black that the amount of the statutory attorney fees under URLTA is not directly tied by the statute to the amount due under a fee agreement and that the public policy goals of encouraging compliance with laws serving the public interest and encouraging settlements are effectively furthered only when the statutory attorney fees under URLTA are awarded for fee-based and pro bono work alike. A landlord who violates URLTA should not "reap the benefits of free representation to the other party."¹² There was nothing in the statutory language of "reasonable attorney's fees" in URLTA that made the recovery of such fees dependent upon a billing obligation, and we held it would be improper to insert the additional term "incurred" into the statute.¹³

We now hold that in order to recover statutory "reasonable" attorney fees under § 48-125(4)(b), the details of the attorney-client agreement is not a necessary component of the affidavit submitted pursuant to § 2-109(F) for justification of appellate attorney fees. The intent of the Legislature may be found through its omission of words from a statute as well as its inclusion of words in a statute, and we are not permitted to read additional words into a clear and unambiguous statute.¹⁴ Several attorney fee statutes, such as the one recently addressed in TransCanada Keystone Pipeline v. Nicholas Family ,¹⁵ specify that to be recoverable, the reasonable attorney fees must have been "incurred."¹⁶ When § 48-125(4)(b) of the Nebraska Workers’ Compensation Act does not specify that reasonable attorney fees must have been "incurred," it is improper for us to add it.

We have repeatedly said that the Nebraska...