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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 reasonable 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/10/2020 04:10 PM CDT
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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 authorized 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 district 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 federal 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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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 proceedings 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 sustained 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 corresponding with Bendorf’s counsel or in connection with inspection of Bendorf’s computers. The motion requested an order 
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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 attorney 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 attorney 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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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 federal 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 calling 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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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 interpretation 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 federal 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 proposition, 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 Johnson 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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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 procedure 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 discretionary 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. App. 56, 809 

N.W.2d 775 (2011).

20 See Johnson v. Fankell, supra note 13.
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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 identical 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 statutes 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 awarding or denying attorney fees will be upheld absent an abuse of 

discretion. 27

[8] We have generally said that 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. 28 We have cautioned that “[l]itigants 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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risk the loss of attorney fees, because of the difficulty of discerning 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 billing 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 preparation 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 exceptions 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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his favor, it was less than half of the minimum damages mandated 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 awarding 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 statute 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 language 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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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 appellate 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 discretion 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).