Sodoro, Daly & Sodoro, PC v. Kramer

• Decision Date: 07 May 2004
• Docket Number: No. S-03-154.,S-03-154.
• Citation: 679 N.W.2d 213,267 Neb. 970
• Court: Nebraska Supreme Court
• Parties: SODORO, DALY & SODORO, P.C., a Nebraska professional corporation, appellee, v. Kathleen J. KRAMER, appellant.

679 N.W.2d 213

267 Neb. 970

SODORO, DALY & SODORO, P.C., a Nebraska professional corporation, appellee, v. Kathleen J. KRAMER, appellant.

No. S-03-154.

Supreme Court of Nebraska.

May 7, 2004.

Jeffrey T. Palzer, of Kellogg & Palzer, P.C., Omaha, for appellant.

Mary M. Schott, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

This is an action for attorney fees incurred during lengthy and complicated divorce proceedings. See, Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997); Kramer v. Kramer, 1 Neb.App. 641, 510 N.W.2d 351 (1993) (appeals of underlying case). The question presented in this appeal is whether the statute of limitations on the law firm's action for attorney fees ran from the time that the law firm's employment by the client ended, or from the date on which the law firm received the client's appeal bond and credited that money to her account.

BACKGROUND

Kathleen J. Kramer, the defendant below and appellant in this court, employed the law firm of Sodoro, Daly & Sodoro (Sodoro) in February 1989 to represent her in her divorce proceedings. Specifically, Kramer hired Peter C. Bataillon, a Sodoro attorney. Kramer's final appeal was argued before this court on April 2, 1997, our decision was filed on May 23, and our mandate issued on June 5. The mandate was spread on the record by the Sarpy County District Court on June 10. In April, prior to our decision, Bataillon left Sodoro. Kramer continued to employ Bataillon with respect to her divorce and no longer employed Sodoro.

Sodoro records indicate that at the time Bataillon left the firm, Kramer owed Sodoro a balance of $16,995.02. The last charge in Kramer's account was a fee transaction dated April 4, 1997, for "preparation of correspondence to client regarding oral argument." The notation "PCB" next to the charge presumably referred to Bataillon. The final transactions in the account, however, were dated June 19 and were designated as "payment transactions." There were three separate transactions on that date. The first and second each were for the "return of unused portion of filing fee from court return of Supreme Court cost bond—clerk of Sarpy County District Court." The third was a "Reimbursement from St. Paul for expert witness return of Supreme Court cost bond—clerk of Sarpy County District Court." The three amounts, totaling $188.50, were credited to Kramer's account balance. For convenience, we will refer to these transactions collectively as the "appeal bond." After these credits, Kramer's balance stood at $16,806.52. Sodoro records reveal no activity on the account after the June 19, 1997, credits.

Sodoro filed the petition in the instant case on June 7, 2001. The petition alleged, as pertinent, that Sodoro had rendered professional legal services to Kramer in her divorce action, that "various charges were made for these services and that the grand total for these legal services and expenses incurred was in the sum of $16,510.82," and that Kramer had failed to pay. Kramer's answer affirmatively alleged the defense of the statute of limitations. Kramer subsequently filed a motion for summary judgment based on her statute of limitations defense. Although the transcript does not contain an order disposing of that motion, it is apparent from later proceedings that the motion was denied. Sodoro then filed a motion for summary judgment. The district court determined, inter alia, that the statute of limitations on Sodoro's claim for fees began to run on June 19, 1997, when Sodoro received and accounted for the appeal bond. Finding no other issue of material fact, the district court entered summary judgment for Sodoro. Kramer appeals.

ASSIGNMENTS OF ERROR

Kramer assigns, consolidated and restated, that the district court erred in overruling her motion for summary judgment and sustaining Sodoro's because (1) Sodoro's action was barred by the statute of limitations and (2) there was a genuine issue of material fact as to the amount owed.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Misle v. HJA, Inc., 267 Neb. 375, 674 N.W.2d 257 (2004). Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Id.

Sodoro argues that "`[t]he point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong.'" Brief for appellee at 5, quoting Nebraska Popcorn v. Wing, 258 Neb. 60, 602 N.W.2d 18 (1999), and citing Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). However, this level of deference does not apply to an appellate court's review of a grant of summary judgment; the governing standard of review for an order of summary judgment should be, and continues to be, one favorable to the nonmoving party. See Controlled Environ. Constr. v. Key Indus. Refrig., 266 Neb. 927, 670 N.W.2d 771 (2003).

ANALYSIS

The parties agree that the statute of limitations at issue in this case is Neb.Rev.Stat. § 25-206 (Reissue 1995), which provides that "[a]n action upon a contract, not in writing, expressed or implied... can only be brought within four years." Kramer relies on the rule that "where services are rendered under a contract of employment which does not fix the term of service or the time for payment, the contract is continuous and the statute of limitations does not commence to run until the employee's services are terminated." In re Estate of Baker, 144 Neb. 797, 803, 14 N.W.2d 585, 589 (1944). Accord, Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15 (1966); Phifer v. Estate of Phifer, 112 Neb. 327, 199 N.W. 511 (1924). See, e.g., Maksym v. Loesch, 937 F.2d 1237 (7th Cir.1991); Jenney v. Airtek Corp., 402 Mass. 152, 521 N.E.2d 388 (1988). Kramer argues that Sodoro's service to her was terminated when Bataillon left the firm in April 1997 and that Sodoro's June 2001 filing against her was untimely.

Sodoro does not dispute that Bataillon left the firm more than 4 years before it filed suit against Kramer. However, Sodoro argues that receipt of the appeal bond and crediting that amount to Kramer's account was a "service" to Kramer sufficient to restart the statute of limitations.

Sodoro contends that its receipt of the appeal bond and credit to Kramer's account was part of its employment relationship with Kramer, such that the statute of limitations began to run at that time. Before disposing of this argument, however, it is necessary to consider more basic principles of law. A period of limitations begins to run upon the violation of a legal right, that is, when the aggrieved party has the right to institute and maintain suit. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002). Applying that proposition in the instant case requires us to determine the nature of Sodoro's cause of action. For that, we turn to the pleadings. The issues in a case are framed by the pleadings. Rush v. Wilder, 263 Neb. 910, 644 N.W.2d 151 (2002). The essential character of an action and relief sought, whether legal or equitable, is determinable from its main object, as disclosed by the pleadings. Scherbak v. Kissler, 245 Neb. 10, 510 N.W.2d 318 (1994). For the reasons set forth below, we conclude that Sodoro's cause of action is best characterized as an action on an open account. An action on an open account is the appropriate cause of action under the circumstances presented, given that the action is based in contract, there have been a number of transactions between the parties, the terms of payment are not specified by the contract, and the central issue is the discrete legal effect of one of those transactions.

"`[A]n action on account or open account is appropriate where the parties have conducted a series of transactions for which a balance remains.'" Pipe & Piling Supplies v. Betterman & Katelman, 8 Neb.App. 475, 482, 596 N.W.2d 24, 30-31 (1999), quoting 1 C.J.S. Account, Action On § 3 (1985).

An "action on account" has been defined as an action of assumpsit or debt for the recovery of money only for services performed, property sold and delivered, money loaned, or damages for the nonperformance of simple contracts, expressed or implied, when the rights of the parties will be adequately conserved by the payment and receipt of money.

1 C.J.S., supra, § 2 at 605. See, also, Moore v. Schank, 148 Neb. 228, 27 N.W.2d 165 (1947); Pipe & Piling Supplies, supra.

Sodoro's petition, and the evidence submitted in support of its motion for summary judgment, establish a prima facie case for an action on an account. See, Florist Supply of Omaha v. Prochaska, 244 Neb. 776, 509 N.W.2d 209 (1993); Moore, supra; Pipe & Piling Supplies, supra. More important, however, is that Sodoro's argument presents a question which can be answered only by analyzing this case as an action on an account. Sodoro's argument on the statute of limitations issue is based solely on the June 19, 1997, account entry, and the account entry is the sole basis to be found in the record for concluding that Sodoro's action was timely filed. Sodoro's argument requires us to determine the legal effect of the June 19 account entry, and this determination can be made only within the context of an action on the account.

At common law, the rules governing actions on accounts differed depending on whether the account was mutual, simple, open, or stated. See,...