Byrne v. HAUPTMAN, O'BRIEN, WOLF & LATHROP

• Decision Date: 28 March 2000
• Docket Number: No. A-99-190.,A-99-190.
• Citation: Byrne v. HAUPTMAN, O'BRIEN, WOLF & LATHROP, 608 N.W.2d 208, 9 Neb.App. 77 (Neb. App. 2000)
• Parties: Robert A. BYRNE and William G. Line, appellants, v. HAUPTMAN, O'BRIEN, WOLF & LATHROP, P.C., appellee. Byrne v. Hauptman, O'Brien,
• Court: Nebraska Court of Appeals

608 N.W.2d 208

9 Neb.App. 77

Robert A. BYRNE and William G. Line, appellants, v. HAUPTMAN, O'BRIEN, WOLF & LATHROP, P.C., appellee. Byrne v. Hauptman, O'Brien,

No. A-99-190.

Court of Appeals of Nebraska.

March 28, 2000.

William G. Line, Fremont, for appellants.

Gordon R. Hauptman, Omaha, for appellee.

IRWIN, Chief Judge, and CARLSON, Judge, and HOWARD, District Judge, Retired.

IRWIN, Chief Judge.

I. INTRODUCTION

Robert A. Byrne and William G. Line (collectively the plaintiffs) appeal the order of the district court for Dodge County granting summary judgment to the defendant, Hauptman, O'Brien, Wolff & Lathrop, P.C. (Hauptman law firm), and denying the plaintiffs' motion for summary judgment. For the reasons stated below, we reverse, and remand for further proceedings.

II. FACTUAL BACKGROUND

On August 14, 1997, the plaintiffs filed a petition for declaratory judgment. According to the petition, Line had represented Byrne in a lawsuit, reached a settlement, and received a settlement draft in the amount of $1,852.70 payable to Byrne, Line, and Gordon R. Hauptman (Hauptman). Hauptman was included on the draft due to his claim of an attorney lien for services rendered to Byrne by the Hauptman law firm pursuant to a contract for legal services. In the petition, the plaintiffs contended that the contract was unenforceable and that the Hauptman law firm was not entitled to an attorney fee. The plaintiffs sought a declaratory judgment that the Hauptman law firm did not have an attorney lien or an interest in the draft.

In the Hauptman law firm's answer, it contended that its contract was enforceable and that it was entitled to the fee. It also counterclaimed, seeking a money judgment in the amount of $1,852.70 against the plaintiffs on the basis of a contract between Byrne and the Hauptman law firm or, in the alternative, on a quantum meruit theory.

Both parties moved for summary judgment. On January 13, 1999, a hearing was held on the motions. The evidence offered included the contingent fee agreement entered between Byrne and the Hauptman law firm, the notice of attorney lien, the settlement draft, and the affidavit of Hauptman.

Regarding the termination of the agreement and the subsequent payment for legal services, the contingent fee agreement provides as follows:

In the event of termination of Attorney's representative as specified, Attorney shall have a lien for fees and expenses as are specified in this Agreement, which lien will be imposed upon any sums recovered by, for, or on behalf of Client. For purposes of computing the contingent fee to which Attorney is entitled, the applicable percentage shall be computed based upon the last settlement offer received by Attorney from defendant's representatives. If no such settlement offer has been tendered, Attorney shall be allowed fees in an amount equivalent to his standard hourly rate for the hours expended on Client's behalf.

The agreement provided that regardless of whether there was a recovery for or on behalf of Byrne, Byrne was obligated to pay all disbursements and expenses incurred by the Hauptman law firm in pursuing Byrne's claim. The agreement also provided that the Hauptman law firm could employ assistance, including paralegals, at its discretion.

The settlement draft was issued in the amount of $1,852.70 in favor of Byrne, Line, and Hauptman. In Hauptman's affidavit, he stated that his standard billing rate on an hourly basis was $125 per hour, that he had entered a contingency fee agreement with Byrne, and that he had proceeded to represented Byrne in his personal injury lawsuit resulting from injuries sustained in an automobile collision. He stated that his representation of Byrne included

counseling and advising of [Byrne] with regard to his ongoing medical care, knowledge and advise [sic] on the applicable law and legal issues involved in his case, wage loss and lost earning capacity issues, the general direction in which the claim should proceed, and answering any questions that Plaintiff or his family submitted. In addition, [Hauptman] corresponded with, and maintained telephone contact with Allstate Insurance Company, the third party liability carrier, and State Farm Insurance Company, [Byrne's] personal insurance carrier with regard to subrogation issues. [The Hauptman law firm] gathered medical records and reports ... and maintained ongoing schedules of medical expenses.

According to Hauptman, he expended between 10 and 10½ hours in the representation of Byrne for the sum of $1,275 and supervised a paralegal who expended between 5 and 5½ hours at an hourly rate of $45 per hour in the sum of $246 for a total fee of $1,521. Hauptman stated that the Hauptman law firm had advanced costs to Byrne in the sum of $331.99. Hauptman further stated that after being discharged by Byrne, the Hauptman law firm served a notice of attorney lien on Byrne, Line, Allstate Insurance Company, and State Farm Insurance Company.

After taking the matter under advisement, the district court found that there was no genuine issue as to any material fact and that the Hauptman law firm was entitled to judgment as a matter of law. The court sustained the Hauptman law firm's motion for summary judgment for judgment on the counterclaim in the amount of $1,852.70 and dismissed the plaintiffs' action for declaratory judgment. Thereafter, the plaintiffs timely appealed.

III. ASSIGNMENTS OF ERROR

In reviewing the plaintiffs' brief, we note that the plaintiffs failed to argue several of their assigned errors. See Schindler v. Walker, 256 Neb. 767, 592 N.W.2d 912 (1999) (alleged error must be specifically assigned and specifically argued in order to be considered by appellate court). We address only those errors that are assigned and argued. Therefore, we address those assigned errors regarding whether the district court erred in granting the Hauptman law firm's motion for summary judgment and in failing to grant the plaintiffs' motion for summary judgment. The plaintiffs' arguments in support of these assigned errors are set out below in particularity.

IV. ANALYSIS

1. STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record 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. Shivvers v. American Family Ins. Co., 256 Neb. 159, 589 N.W.2d 129 (1999); Willers v. Willers, 255 Neb. 769, 587 N.W.2d 390 (1998). On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999); Wood v. McGrath, North, 256 Neb. 109, 589 N.W.2d 103 (1999).

Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over all motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct further proceedings as it deems just. Shivvers, supra; American Family Ins. Group v. Hemenway, 254 Neb. 134, 575 N.W.2d 143 (1998).

2. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

The plaintiffs contend on appeal that the district court should have granted their motion for summary judgment. They contend in their assignments of error that they were entitled to a summary judgment because the Hauptman law firm could not seek to recover "by contract and also under quantum mer[u]it." They also appear to be arguing that the agreement was unenforceable.

(a) Quantum Meruit and Express Contract

The plaintiffs argue that it was improper for the district court to allow the Hauptman law firm to seek recovery on the basis of an express contract and under quantum meruit. However, the Nebraska Supreme Court has repeatedly held that a plaintiff is permitted to plead both express contract and quasi-contract in the same petition. See, Professional Recruiters v. Oliver, 235 Neb. 508, 456 N.W.2d 103 (1990); Associated Wrecking v. Wiekhorst Bros., 228 Neb. 764, 424 N.W.2d 343 (1988); Vantage Enterprises, Inc. v. Caldwell, 196 Neb. 671, 244 N.W.2d 678 (1976). The Nebraska Supreme Court concluded that where the facts arise out of the same transaction, an action on an express contract and an action for quantum meruit constitute a single cause of action seeking recovery under alternate theories. See Professional Recruiters, supra.

The plaintiffs cite Siebler Heating & Air Conditioning v. Jenson, 212 Neb. 830, 326 N.W.2d 182 (1982), to support their argument that the Hauptman law firm could not proceed on the basis of express contract and under quantum meruit. Siebler Heating & Air Conditioning does not stand for this proposition. In Siebler Heating & Air Conditioning, the Nebraska Supreme Court held only that a plaintiff may not allege an express agreement and then seek at trial or on appeal to recover based on quantum meruit. Siebler Heating & Air Conditioning involved a pleading and proof problem. In the case before us, the Hauptman law firm's pleading, however inartful, seeks recovery on the basis of the existence of an express contract with Byrne and on the basis of quantum meruit. Therefore, the problem arising in the Siebler Heating & Air Conditioning case is not presented in this case.

(b) Enforceability of Agreement

The plaintiffs also argue that the agreement was unenforceable as a matter of law. According to the plaintiffs, "attorney's fees are only allowed by statute or a uniform course of conduct authorizing the allowance. They cannot be allowed by agreement in a collection matter." Brief for appellants at 7.

It is true that attorney fees are recoverable...