Brumbaugh v. Bendorf

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/04/2020 02:28 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
Kirk E. Brumbaugh, appellant, v.
Meegan Bendorf, appellee.
___ N.W.2d ___
Filed June 26, 2020. No. S-19-732.
1. Attorney Fees: Appeal and Error. A trial court’s decision awarding or
denying attorney fees will be upheld absent an abuse of discretion.
2. Costs: Appeal and Error. The decision of a trial court regarding taxing
of costs is reviewed for an abuse of discretion.
3. Federal Acts: Claims: Courts. A state court may use procedural rules
applicable to civil actions in the state court unless otherwise directed by
a federal act, but substantive issues concerning a claim under the act are
determined by the provisions of the act and interpretive decisions of the
federal courts construing the act.
4. Judgments: Appeal and Error. As a general proposition, an appellate
court does not require a district court to explain its reasoning.
5. Statutes: Words and Phrases. The word “may” when used in a statute
will be given its ordinary, permissive, and discretionary meaning unless
it would manifestly defeat the statutory objective.
6. Intercepted Communications: Courts: Attorney Fees. Whether rea-
sonable attorney fees should be awarded under 18 U.S.C. § 2520 (2018)
or Neb. Rev. Stat. § 86-297 (Reissue 2014) is addressed to the trial
court’s discretion.
7. Attorney Fees. When an attorney fee is authorized, the amount of the
fee is addressed to the trial court’s discretion.
8. ____. If an attorney seeks a statutory attorney fee, that attorney should
introduce at least an affidavit showing a list of the services rendered, the
time spent, and the charges made.
9. ____. An award of attorney fees involves consideration of such factors
as the nature of the case, the services performed and results obtained,
the length of time required for preparation and presentation of the case,
the customary charges of the bar, and general equities of the case.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
10. Statutes. Statutory language is to be given its plain and ordinary
meaning.
11. Intercepted Communications: Costs. Neb. Rev. Stat. § 25-1708
(Reissue 2016) does not apply to a discretionary award of reasonable
litigation expenses under either 18 U.S.C. § 2520 (2018) or Neb. Rev.
Stat. § 86-297 (Reissue 2014).
12. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Karl von Oldenburg, of BQ & Associates, P.C., L.L.O., for
appellant.
Karen S. Nelson, of Carlson & Burnett, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
After Kirk E. Brumbaugh obtained a jury verdict for less
than the statutory minimum, he moved for attorney fees autho-
rized but not mandated by statute. The district court denied
the request. On appeal, we decline Brumbaugh’s invitation to
abandon our longstanding procedure and to instead require that
a trial court provide an explanation of its reasons regarding a
fee decision. Finding no abuse of discretion, we affirm the dis-
trict court’s judgment awarding no fees or costs.
BACKGROUND
Complaint and Judgment
Brumbaugh sued Meegan Bendorf (and Bank of America,
which was dismissed with prejudice after trial) under fed-
eral 1 and state 2 wiretapping statutes and under Neb. Rev.
1
18 U.S.C. § 2520 (2018).
2
Neb. Rev. Stat. § 86-297 (Reissue 2014).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
Stat. § 20-203 (Reissue 2012). The relief requested in the
complaint included damages, injunctive relief, attorney fees,
and costs.
The allegations of the complaint arose out of Bendorf’s
interception of Brumbaugh’s Bank of America online credit
card account records. The complaint alleged that during the
pendency of divorce and child custody modification proceed-
ings between Brumbaugh and Bendorf, Bendorf requested that
Bank of America send Brumbaugh’s credit card statements
and account activity to an email address that she maintained.
According to Bendorf’s responsive pleading, the email account
was a joint account that she created either before or during
her marriage to Brumbaugh. She affirmatively alleged that
Brumbaugh’s damages were caused by the actions or inactions
of himself or a third party or by intervening causes over which
she had no control.
The matter proceeded to a jury trial. The court instructed
the jury that if it found in favor of Brumbaugh, he was entitled
to recover “[s]tatutory damages of whichever is the greater of
$100.00 per day, for each day of violation, or $10,000.00.” The
jury found that Brumbaugh met his burden of proof as to both
the federal and state wiretapping claims and awarded damages
of $4,800. Brumbaugh promptly filed a motion for judgment
notwithstanding the verdict and a motion to alter or amend,
both based on the jury’s award of damages. The court sus-
tained the motions, entering judgment in favor of Brumbaugh
on both wiretapping claims and awarding statutory damages
of $10,000.
Attorney Fees
Brumbaugh subsequently filed a motion for attorney fees.
He alleged that he was limiting his request for attorney fees
to those related to Bendorf’s portion of the case only and that
he was not requesting fees for any time spent correspond-
ing with Bendorf’s counsel or in connection with inspec-
tion of Bendorf’s computers. The motion requested an order
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
“granting attorney fees and costs in this matter in the amount
of $18,551.08 for Attorney [2] (including costs) and $6,250.00
for Attorney [1], for a total of $24,801.08.”
During a hearing on the motion, the court received three
exhibits offered by Brumbaugh. The first exhibit was Attorney
2’s affidavit, which attached “[n]ot all of [the legal time he
spent on the matter], but some of it.” It contained itemized
billing amounting to $16,850 and itemized costs of $1,701.08
for a total of $18,551.08. The second exhibit was an attorney
fee affidavit by Attorney 1, who had commenced the action
on Brumbaugh’s behalf. It accounted for 21 hours of his
time at an hourly rate of $250, for a total request of $5,250.
Brumbaugh also offered an affidavit prepared by Bendorf’s
counsel, which showed “the time she put into it up to the point
of trial.” According to the exhibit, Bendorf had incurred attor-
ney fees of $20,894.80.
In argument during the hearing, Brumbaugh’s attorney
stated that he tried to limit his fee request to time addressing
the claims against Bendorf and not Bank of America, that he
was not requesting $4,500 relating to digital forensics, and that
he “truly narrowed down the times.” Later, the court entered
an order stating: “The Court finds that [Brumbaugh’s] Motion
for Attorney Fees should be and is Denied. Case disposed of.”
Brumbaugh appealed from the denial of his motion for attor-
ney fees, and we moved the case to our docket. 3 As authorized
by court rule, we submitted the case without oral argument. 4
ASSIGNMENTS OF ERROR
Brumbaugh assigns that the district court erred in (1) failing
to provide a concise and clear explanation of why it denied
attorney fees and costs, (2) failing to award any attorney fees
pursuant to § 2520 and § 86-297, and (3) failing to address or
award costs to him as prevailing party.
3
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
4
See Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2017).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
STANDARD OF REVIEW
[1] A trial court’s decision awarding or denying attorney fees
will be upheld absent an abuse of discretion. 5
[2] The decision of a trial court regarding taxing of costs is
reviewed for an abuse of discretion. 6
ANALYSIS
Explanation of Fee Award Not Required
Brumbaugh sought attorney fees authorized by both a fed-
eral 7 and a state 8 statute. The district court denied the request
without explanation. An initial issue is whether federal or state
law controls in this state court proceeding.
Brumbaugh directs our attention to federal case law call-
ing for an explanation of reasons for an attorney fee award. In
connection with attorney fees under 42 U.S.C. § 1988 (2012),
the U.S. Supreme Court emphasized that the trial court has
discretion to determine the amount of attorney fees to award
and stated:
It remains important, however, for the district court to
provide a concise but clear explanation of its reasons for
the fee award. When an adjustment is requested on the
basis of either the exceptional or limited nature of the
relief obtained by the plaintiff, the district court should
make clear that it has considered the relationship between
the amount of the fee awarded and the results obtained. 9
The Supreme Court later repeated the importance of an
explanation for fee awards under § 1988: “It is essential that
5
State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924
N.W.2d 664 (2019). See, also, Morford v. City of Omaha, 98 F.3d 398 (8th
Cir. 1996).
6
Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466, 915
N.W.2d 58 (2018).
7
§ 2520.
8
§ 86-297.
9
Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40
(1983).
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BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
the judge provide a reasonably specific explanation for all
aspects of a fee determination, including any award of an
enhancement. Unless such an explanation is given, adequate
appellate review is not feasible . . . .” 10 Specifically with
respect to fees under § 2520, the Eighth Circuit has stated that
the judge should provide an explanation of the reasons for a
fee award. 11
State courts are bound by the U.S. Supreme Court’s inter-
pretation of federal statutes. 12 While our research uncovered
no U.S. Supreme Court case addressing § 2520, we recognize
that federal substantive law governs the merits of the fed-
eral claim.
[3] But the same is not true for procedures that must be
followed in state court. “‘The general rule, “bottomed deeply
in belief in the importance of state control of state judicial
procedure, is that federal law takes the state courts as it finds
them.” . . .’” 13 In the context of disposing of a claim under
a different federal act, 14 we stated that a state court may use
procedural rules applicable to civil actions in the state court
unless otherwise directed by the federal act, but substantive
issues concerning a claim under the act are determined by the
provisions of the act and interpretive decisions of the federal
courts construing the act. 15
[4] Nothing in the text of § 2520(b) or § 86-297(2) requires
any findings regarding attorney fees. As a general proposi-
tion, this court does not require a district court to explain its
10
Perdue v. Kenny A., 559 U.S. 542, 558, 130 S. Ct. 1662, 176 L. Ed. 2d 494
(2010).
11
See Bess v. Bess, 929 F.2d 1332 (8th Cir. 1991).
12
Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 (2017).
13
N.M. (J.) v. Fankell, 520 U.S. 911, 919, 117 S. Ct. 1800, 138 L. Ed. 2d 108
(1997).
14
Federal Employers’ Liability Act, 45 U.S.C. §§ 51 through 60 (2012).
15
See Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47
(2010).
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BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
reasoning. 16 A statute in our civil procedure code provides for
specific findings in certain circumstances, but it requires them
only upon a party’s request. 17 And Brumbaugh did not request
specific findings. Unless a statute requires specific findings or
we have mandated them as a matter of case law, such findings
are not required. 18 Brumbaugh cited no Nebraska authority for
the proposition that specific findings are required in awarding
attorney fees. The only Nebraska case he cited in this regard
was a Nebraska Court of Appeals decision affirming a trial
court’s judgment that denied attorney fees without making
explicit findings. 19
The federal court decisions calling for an explanation of
an attorney fee award is a matter of federal procedure. This
is not a situation where the difference between our general
practice of not requiring specific findings and the federal case
law calling for an explanation of a fee award would produce a
different ultimate disposition. 20 We conclude the federal proce-
dure does not apply in this state court civil action to either the
federal claim or the state claim of Brumbaugh for fees under
the wiretapping statutes. We decline Brumbaugh’s invitation to
require trial courts to provide an explanation of an award of
attorney fees.
Denial of Attorney Fees
[5,6] There is no dispute that attorney fees are discretion-
ary under both the federal and state statutes. The federal
statute states that any person “whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally
16
Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273
(2013).
17
See Neb. Rev. Stat. § 25-1127 (Reissue 2016).
18
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018). See, also,
Strasburg v. Union Pacific RR. Co., supra note 16.
19
See Model Interiors v. 2566 Leavenworth, LLC, 19 Neb. Ct. App. 56, 809
N.W.2d 775 (2011).
20
See Johnson v. Fankell, supra note 13.
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BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
used . . . may in a civil action recover . . . such relief as
may be appropriate.” 21 The state statute reverses the order
of the words “oral” and “electronic,” but is otherwise identi-
cal to § 2520(a), particularly in both phrases using the word
“may.” 22 The word “may” when used in a statute will be given
its ordinary, permissive, and discretionary meaning unless it
would manifestly defeat the statutory objective. 23 Both stat-
utes then provide that appropriate relief for an action under
the respective section includes reasonable attorney fees. 24 But
neither statute mandates an award of such fees. Brumbaugh
concedes that in both statutes, “the attorney [fee] award
provision is permissive and not mandatory.” 25 Because we
agree, we hold that whether reasonable attorney fees should
be awarded under § 2520 or § 86-297 is addressed to the trial
court’s discretion.
[7] When an attorney fee is authorized, the amount of
the fee also is addressed to the trial court’s discretion. 26
Because discretion is involved, a trial court’s decision award-
ing or denying attorney fees will be upheld absent an abuse of
discretion. 27
[8] We have generally said that if an attorney seeks a statu-
tory attorney fee, that attorney should introduce at least an
affidavit showing a list of the services rendered, the time
spent, and the charges made. 28 We have cautioned that “[l]iti-
gants who do not file an affidavit or present other evidence
21
§ 2520(a) (emphasis supplied).
22
See § 86-297(1).
23
Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
24
See, § 2520(b)(3); § 86-297(2)(c).
25
Brief for appellant at 11.
26
See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017).
27
Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016). See, also,
Morford v. City of Omaha, supra note 5.
28
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 26.
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BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
risk the loss of attorney fees, because of the difficulty of dis-
cerning such information from the record alone.” 29 Here, both
of Brumbaugh’s attorneys filed affidavits in support of the
fee request.
Brumbaugh argues that his attorneys followed “good ‘billing
judgment’” by limiting his billing to only the successful claim
and for “reduc[ing] the billing on the successful claim to bill-
ing for actual legal process.” 30 We note that the fee affidavits
of Brumbaugh’s attorneys do not show what the total fees were
before deductions for the portion of the case against Bank
of America.
[9] An award of attorney fees involves consideration of
such factors as the nature of the case, the services performed
and results obtained, the length of time required for prepara-
tion and presentation of the case, the customary charges of
the bar, and general equities of the case. 31 There is nothing in
our record to suggest that the district court did not consider
these factors.
We are mindful that the district court had a far greater
understanding of the litigation involved here—it was involved
from commencement of the case and ultimately conducted a
jury trial. In contrast, our record is limited to filings in the
transcript—over 400 pages worth—and a bill of exceptions
containing only the hearing on attorney fees. The bill of excep-
tions excludes all pretrial proceedings, the jury trial record,
and all other posttrial proceedings. What we can gather from
the transcript is that Brumbaugh and Bendorf were formerly
married, that this action was drawn out over nearly 3 years,
and that the jury believed Brumbaugh was entitled to damages
of only $4,800, which award the court increased to $10,000—
the statutory minimum under § 2520(c)(2) and § 86-297(3)(b).
In other words, while Brumbaugh obtained a jury verdict in
29
Garza v. Garza, 288 Neb. 213, 221, 846 N.W.2d 626, 633 (2014).
30
Brief for appellant at 12.
31
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 26.
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BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
his favor, it was less than half of the minimum damages man-
dated by both statutes (despite jury instructions laying out
Brumbaugh’s right to statutory damages). On this record, we
cannot say that the district court abused its discretion in award-
ing no attorney fees.
Costs
Brumbaugh also argues that the district court abused its
discretion in failing to address and award costs. The federal
statute and the state statute each allow as relief the award of
“other ligation costs reasonably incurred.” 32
[10,11] Brumbaugh directs our attention to a Nebraska stat-
ute stating “costs shall be allowed,” 33 but the statute is not
applicable here. The statute states: “Where it is not otherwise
provided by this and other statutes, costs shall be allowed of
course to the plaintiff . . . upon a judgment in favor of the
plaintiff, in actions for the recovery of money only or for the
recovery of specific real or personal property.” 34 Statutory lan-
guage is to be given its plain and ordinary meaning. 35 Here,
§ 2520 and § 86-297 “otherwise provide[]” 36 by making the
costs discretionary. We hold that § 25-1708 does not apply to
a discretionary award of reasonable litigation expenses under
either § 2520 or § 86-297. We cannot say that the district court
abused its discretion by not awarding litigation costs.
Acceptance of Benefits
[12] Bendorf argues that Brumbaugh may not prosecute the
appeal, because he has accepted the benefit of the judgment.
According to a supplemental transcript, Bendorf paid $5,000
toward the judgment through the clerk of the district court
32
See, § 2520(b)(3); § 86-297(2)(c).
33
Neb. Rev. Stat. § 25-1708 (Reissue 2016).
34
Id. (emphasis supplied).
35
Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020).
36
§ 25-1708.
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BRUMBAUGH v. BENDORF
Cite as 306 Neb. 250
in June 2019 and the check was deposited into Brumbaugh’s
account. Having rejected the arguments raised by Brumbaugh,
it is not necessary to address whether he waived the right to
appeal by accepting partial payment of the judgment. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it. 37
CONCLUSION
We conclude that the district court did not abuse its discre-
tion in declining to award attorney fees or costs to Brumbaugh.
Accordingly, we affirm.
Affirmed.
37
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).