Roberts v. Cnty. of Wash. (In re Claim of Roberts for Attorney Fees)

• Decision Date: 02 October 2020
• Docket Number: S-19-533,S-19-932.,Nos. S-19-378,s. S-19-378
• Citation: 949 N.W.2d 299,307 Neb. 346
• Parties: IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES. Kristine Roberts, appellee, v. County of Washington, Nebraska, appellant.
• Court: Nebraska Supreme Court

307 Neb. 346

949 N.W.2d 299

IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES.Kristine Roberts, appellee,

v.County of Washington, Nebraska, appellant.

Nos. S-19-378

S-19-533

S-19-932.

Supreme Court of Nebraska.

Filed October 2, 2020

M. Scott Vander Schaaf, Washington County Attorney, and Desirae M. Solomon, Omaha, for appellant.

Kristine Roberts, of Roberts Law Office, L.L.C., for appellee.

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

Stacy, J.

In these consolidated appeals, the county attorney for Washington County, Nebraska, challenges a series of orders fixing fees for court-appointed counsel in a juvenile proceeding. This opinion clarifies the statutory framework for appealing such orders and explains how the appeal should be styled. It then addresses the procedural and evidentiary challenges raised by the county, including its contentions that (1) the county is entitled by law to notice and an evidentiary hearing whenever a fee application is filed, (2) fee applications must be supported by evidence of the client's continued indigency, (3) courts may not allow fees for defending objections to a fee application, and (4) only an appellate court may award fees for services performed on appeal.

Finding no abuse of discretion, we affirm the fee orders entered by the juvenile court.

I. BACKGROUND

1. PROCEDURAL HISTORY OF JUVENILE PROCEEDINGS

In March 2016, the State filed a petition in the county court for Washington County alleging the minor children of Kilynn K. were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to the faults and habits of Kilynn. Pursuant to an ex parte order, the children were removed from Kilynn's home, which was alleged to be unsanitary and bug infested.

Early in the case, the county court, sitting as a juvenile court, granted Kilynn's request for court-appointed counsel and appointed attorney Kristina Roberts.¹ Roberts has represented Kilynn during all phases of this juvenile proceeding.

Eventually, the children were adjudicated under § 43-247(3)(a). The court set a permanency goal of reunification, and Kilynn was ordered to work with family support services, complete a psychological evaluation, attend therapy, attend parenting classes, learn how to clean and organize the home, and eradicate insects from the home. At regular review hearings throughout 2017, the court found that Kilynn was making progress and that supervised visits were going well. However, in the spring of 2018, Kilynn started to backslide, and in June 2018, the State moved to terminate her parental rights.

Trial on the motion to terminate was held in November 2018. The trial lasted 4 full days; more than 20 witnesses testified, and approximately 90 exhibits were offered. At the conclusion of trial, the juvenile court denied the State's motion, finding it had not shown that Kilynn was unfit or that terminating her parental rights was in the children's best interests. The State timely appealed that ruling, and the Nebraska Court of Appeals affirmed.²

2. ORDERS COMPENSATING COURT-APPOINTED COUNSEL

(a) Fee Applications From 2016 Through 2018

During the first few years of this juvenile proceeding, Roberts filed an application in the county court for Washington County every 3 to 4 months seeking payment for past legal services at the approved hourly rate, which at the time was $75 per hour. There were no objections to any of these fee applications. The court routinely allowed Roberts’ fee applications without a hearing, and no appeals were taken from any of the fee orders during this time period.

(b) February 2019 Fee Application

On February 13, 2019, Roberts filed a verified fee application seeking payment of $12,103.80 for 151 hours of services rendered from August 30, 2018, through February 6, 2019. The application included time billed by Roberts in preparing for and defending the 4-day termination trial. The fee application was supported by Roberts’ affidavit, which included a detailed billing statement. Roberts served a copy of the February 2019 fee application, along with a notice of hearing, on the Washington County Attorney.

Washington County filed a written objection to Roberts’ fee application, alleging Roberts’ affidavit contained hearsay and lacked necessary foundation. In a subsequently filed brief, the county also challenged evidence of Kilynn's indigency and argued that Roberts’ fee application should be denied because prior fee orders had sufficiently compensated Roberts for her services.

At the hearing, Roberts offered a copy of her affidavit and the court received it without objection. Roberts also called a local attorney, who testified that for the past 30 years, a portion of his general law practice involved representing parents in termination proceedings. He described parental rights termination cases as the "capital punishment of all family law cases." When privately retained, he billed his time for such work at $200 an hour. He also accepted juvenile court appointments despite the lower hourly rate, because he understood the court "wants experienced trial attorneys to be available on the court list." The attorney testified that trial preparation time varies from case to case, but that, generally, an attorney prepares approximately 2 hours for each hour spent in trial. He testified that other attorneys in the area often consult him about handling parental rights termination cases and that Roberts consulted him several times during the pendency of this case but did not bill the county for any of that time. The attorney was familiar with the history of this juvenile case and had reviewed Roberts’ affidavit and her billing statement. When asked his opinion on whether Roberts’ fees and expenses were fair and reasonable, he testified that if anything, Roberts underbilled for the time she spent defending Kilynn.

Washington County offered no evidence at the hearing. It instead urged the court to deny Roberts’ February 2019 fee application in its entirety, based on the arguments it raised in its objection and brief. Summarized, it was the county's primary position that Roberts’ past fee awards were sufficient to compensate her for all of her legal services in the case, even if it meant she received no payment for the time billed defending Kilynn in the parental rights termination trial.

On March 28, 2019, the court entered an order overruling Washington County's objection to Roberts’ February 2019 fee application. The court found Roberts’ requested fees were fair and reasonable, and it allowed fees in the sum of $12,103.80. The county timely appealed from that order, and the appeal was docketed as case No. A-19-378.

(c) April 2019 Fee Application

Roberts filed another verified fee application on April 25, 2019, seeking payment of $2,347.50 for approximately 31 hours of legal services performed from February 11 to April 25, 2019. This application included 3 hours billed in connection with preparing for and attending the evidentiary hearing on Washington County's objection to the February 2019 fee application and 1.2 hours of work in connection with the county's direct appeal of the decision declining to terminate Kilynn's parental rights. Roberts’ April 2019 fee application was supported by her own affidavit and a detailed billing invoice. Roberts served the Washington County Attorney with a copy of the April 2019 fee application and a notice of hearing.

The county did not file an objection to the April 2019 fee application, but it did appear at the scheduled hearing. At the hearing, Roberts offered a copy of her affidavit and the court received it over the State's objections. Washington County offered no evidence, but made an oral objection to the fee application, claiming the court lacked jurisdiction over the matter, because the county had appealed some of the juvenile court's recent orders.

The juvenile court rejected the county's jurisdictional argument and, speaking from the bench, found that Roberts had been properly appointed and that "[t]here were no irregularities" in her fee request. The county took exception to the latter finding and asked to be heard, arguing that Roberts’ April 2019 fee application was irregular because some of the billed time pertained to work performed in defending the county's appeals. It was the county's position that Roberts could not ask the juvenile court to compensate her for work performed in the appellate court. According to the county, if Roberts wanted to be paid for work performed on appeal, she would need to "re-apply to the Court of Appeals to get separately appointed for the purposes of the appeal," and then "the Court of Appeals takes up that application for attorney fees when that case closes."

The county also argued that Roberts’ fee request was irregular because she was seeking compensation for time spent defending the county's objection to her February 2019 fee application. The county argued that such time "ha[d] nothing to do with" representing Kilynn in the juvenile proceeding and, thus, was not compensable under Neb. Rev. Stat. § 43-273 (Reissue 2016). When the court asked what Roberts should have done when the county objected to her fee application, the county conceded it was appropriate for Roberts to prepare for and appear at the hearing on the county's objection. But it maintained Roberts was not entitled to be compensated for that time.

The juvenile court ruled from the bench and allowed Roberts’ fee request after making a minor deduction. Later that same day, the court entered an order overruling the county's objection, finding that Roberts’ fees were fair and reasonable, and allowing fees in the sum of $2,325. The county timely appealed from that order, and the appeal was docketed as case No. A-19-533.

(d) July 2019 Fee Application

On July 12, 2019, Roberts filed a verified application seeking fees in the amount of $2,991.85 for nearly 40 hours of legal services performed from April 26 through July 1, 2019. This...