Thomas Grady Photography v. Amazing Vapor (supplemental opinion) , 301 Neb. 929 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
03/01/2019 01:06 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR
Cite as 301 Neb. 929
Thomas Grady Photography, Inc., appellee,
v. A mazing Vapor, Ltd., et al., appellees,
and Thomas J. A nderson, appellant.
___ N.W.2d ___
Filed December 21, 2018. No. S-17-818.
supplemental opinion
Appeal from the District Court for Douglas County, Gregory
M. Schatz, Judge, on appeal thereto from the County Court for
Douglas County, Stephanie R. H ansen, Judge. Supplemental
opinion: Motion of appellee for attorney fees sustained.
Thomas J. Anderson, P.C., L.L.O., pro se.
Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for
appellee Thomas Grady Photography, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
Appellee, Thomas Grady Photography, Inc. (Grady
Photography), has moved under Neb. Ct. R. App. P. § 2-106
(rev. 2012) for attorney fees associated with the unsuccessful
appeal to this court by appellant, Thomas J. Anderson. An affi-
davit and itemized legal bill claims $6,866 in attorney fees for
work performed by Grady Photography’s attorney in connec-
tion with this appeal. Because Grady Photography is entitled
to appellate attorney fees under Neb. Rev. Stat. § 25-1801
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR
Cite as 301 Neb. 929
(Reissue 2016), as amended by 2018 Neb. Laws, L.B. 710, we
award Grady Photography $6,866.
As recited more fully in our opinion Thomas Grady
Photography v. Amazing Vapor, ante p. 401, 918 N.W.2d 853
(2018), Grady Photography was hired to perform photogra-
phy services related to the products of Amazing Vapor, Ltd.
Amazing Vapor, Manuel Guillermo Calderon, and Anderson
refused to pay for the services. The unpaid bill for photogra-
phy services rendered totaled $2,400. The county court at trial
and the district court on appeal essentially found that Anderson
breached the oral contracts for Grady Photography’s services.
We affirmed. Id.
As a general rule, attorney fees and expenses are recover-
able only where provided for by statute or when a recognized
and accepted uniform course of procedure has been to allow
recovery of attorney fees. In re Estate of Graham, ante p.
594, 919 N.W.2d 714 (2018). Section 25-1801 applies to this
case where there has been an unpaid claim for payment for
photography services of $2,400. Section 25-1801, as amended,
provides in part:
(1) On any lawsuit of four thousand dollars or less,
regardless of whether the claims are liquidated or
assigned, the plaintiff may recover costs, interest, and
attorney’s fees in connection with each claim as provided
in this section. If, at the expiration of ninety days after
each claim accrued, the claim or claims have not been
paid or satisfied, the plaintiff may file a lawsuit for pay-
ment of the claim or claims. If full payment of each claim
is made to the plaintiff by or on behalf of the defendant
after the filing of the lawsuit, but before judgment is
taken, except as otherwise agreed in writing by the plain-
tiff, the plaintiff shall be entitled to receive the costs of
the lawsuit whether by voluntary payment or judgment.
If the plaintiff secures a judgment thereon, the plaintiff
shall be entitled to recover:
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR
Cite as 301 Neb. 929
(a) The full amount of such judgment and all costs of
the lawsuit thereon;
(b) Interest at the rate of six percent per annum. Such
interest shall apply to the amount of the total claim begin-
ning thirty days after the date each claim accrued, regard-
less of assignment, until paid in full; and
(c) If the plaintiff has an attorney retained, employed,
or otherwise working in connection with the case, an
amount for attorney’s fees as provided in this section.
(2) If the cause is taken to an appellate court and the
plaintiff recovers a judgment thereon, the appellate court
shall tax as costs in the action, to be paid to the plaintiff,
an additional amount for attorney’s fees in such appellate
court as provided in this section, except that if the plain-
tiff fails to recover a judgment in excess of the amount
that may have been tendered by the defendant, then the
plaintiff shall not recover the attorney’s fees provided by
this section.
(3) Attorney’s fees shall be assessed by the court in
a reasonable amount, but shall in no event be less than
ten dollars when the judgment is fifty dollars or less, and
when the judgment is over fifty dollars up to four thou-
sand dollars, the attorney’s fee shall be ten dollars plus
ten percent of the judgment in excess of fifty dollars.
(4) For purposes of this section, the date that each
claim accrued means the date the services, goods, mate-
rials, labor, or money were provided, or the date the
charges were incurred by the debtor, unless some different
time period is expressly set forth in a written agreement
between the parties.
(Emphasis supplied.)
We have described the foregoing section as follows:
[This] section provides that a claimant with a claim
amounting to less than $4,000 for, among other things,
services rendered, may present that claim to the allegedly
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
THOMAS GRADY PHOTOGRAPHY v. AMAZING VAPOR
Cite as 301 Neb. 929
liable party and then, if the claim is not paid within 90
days, sue for the amount of the original claim and addi-
tional costs, interest, and attorney fees.
Thomas & Thomas Court Reporters v. Switzer, 283 Neb. 19,
29, 810 N.W.2d 677, 686 (2012).
Given the terms of § 25-1801 and the facts of this case, we
determine that the appellate attorney fees incurred by Grady
Photography of $6,866 are reasonable. This court sustains
Grady Photography’s motion and awards Grady Photography
attorney fees of $6,866 to be paid by Anderson.
Motion of appellee for
attorney fees sustained.