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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

SCHICKER V. CADY

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

RICHARD SCHICKER, APPELLANT,

V.

BRANDI CADY, APPELLEE.

Filed May 7, 2024. No. A-23-455.

Appeal from the District Court for Douglas County: TODD O. ENGLEMAN, Judge. Affirmed.

Richard Schicker, pro se.

Joseph P. Naatz, of Kreikemeier Law, L.L.C., for appellee.

MOORE, ARTERBURN, and WELCH, Judges.

MOORE, Judge.

INTRODUCTION

Richard Schicker brought a complaint against a former client, Brandi Cady, seeking 

payment for attorney fees under a contingency fee agreement. Following a bench trial, the district 

court for Douglas County dismissed Schicker’s complaint, finding that there had been no meeting 

of the minds during the formation of the agreement and thus there was no valid, enforceable 

contract. For the reasons contained herein, we affirm.

STATEMENT OF FACTS

On October 23, 2018, Schicker filed a complaint alleging that he had entered into a written 

contract with Cady whereby Schicker was to represent Cady in a claim against Lincoln Financial 

Group (LFG) for life insurance benefits owing to Cady due to the death of Cady’s husband. 

Schicker alleged that he was retained because LFG was refusing to pay any amount of insurance 

benefits and that by the terms of the contract with Cady, Schicker was to receive at least 40 percent 
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of any amount paid by LFG. LFG later agreed to pay Cady the full policy amount and the complaint 

sought judgment against Cady for 40 percent of that amount, plus any costs incurred by Schicker.

Cady filed an answer generally denying all allegations in the complaint. The answer also 

alleged that Schicker had cancelled the written contract with Cady on October 2, 2017, as 

evidenced by his signature and writing on the contract.

Trial on the matter was held on April 5, 2023, at which Schicker, Cady, and Cynthia 

Klenda, a senior claims examiner with LFG, testified. The following evidence was adduced.

In January 2017, Cady’s husband filed an application for a $200,000 life insurance policy 

through his employer and became eligible for the benefit on February 1. The husband was 

scheduled to have an associated physical exam on June 21, but was killed in a car accident on June 

14.

Cady testified that at the time of her husband’s death, the couple had three young children,

and that she immediately attempted to collect his life insurance benefits. Having not yet received 

the full policy amount, Cady sent a letter of complaint to the Nebraska Department of Insurance 

on approximately September 14. Cady’s letter to the Department of Insurance was not presented 

at trial.

Cady called Schicker’s law office on approximately September 19, 2017. Cady testified 

that she called to inquire about a personal injury claim, as she had heard from community members 

that the highway where her husband was killed had been deemed dangerous and was soon to be 

under construction. Intake notes from Cady’s initial call to the law office, authored by Schicker 

and his assistant, were entered into evidence. The intake notes reference an accidental death, a 

denied life insurance claim based on the fact that the husband had died before his scheduled 

physical exam, and that a complaint with the Department of Insurance had already been filed.

The first in person meeting between Cady and Schicker occurred on September 21, 2017, 

for roughly an hour. Cady testified that the two discussed the personal injury claim and the 

condition of the highway. They also discussed the insurance claim because Schicker “kept going 

back to that.” It was not Cady’s intention to discuss the insurance claim with Schicker, though she 

assumed the facts of the various claims were intertwined as they had arisen from the same accident. 

Schicker testified that during the meeting, he had been hired to represent Cady for both a personal 

injury claim and an insurance claim. Schicker’s notes regarding the September 21 meeting were 

also entered into evidence, though Schicker was unable to recall the date he authored the notes. 

One page of notes is titled “Auto Crash Plan” and the other “Issues,” which Schicker testified were 

checklists related to the personal injury claim and the insurance claim, respectively.

A contingency fee agreement between Cady and Schicker was executed during the 

September 21 meeting. The agreement was entered into evidence and reflects that Schicker was to 

be paid 40 percent of the amount recovered or settled on behalf of Cady. In the first paragraph of 

the fee agreement is the statement, “[c]lient may have a claim against ___________” and the 

section is filled in with “Lincoln Financial[.]” The fee agreement is signed by both parties. Under 

the signatures is the handwritten statement: “Any fees pursuant to § 44-359 shall go to Brandi.”

This statement is initialed by “R.J.S. and BAC”. Neither party testified about this handwritten 

statement.

Cady identified her signature at the bottom of the fee agreement but denied that the blank 

space of the agreement, relating to the claim, had been filled in at the time she signed it. She did 
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not recall “Lincoln Financial” appearing anywhere in the fee agreement. Schicker did not testify 

to the condition of the fee agreement at the time of the parties’ signatures.

Schicker testified that he instructed Cady to send him any information she had regarding 

her husband’s life insurance. In an email dated September 26, 2017, Cady sent Schicker insurance 

paperwork from 2016, her husband’s paystubs showing his deductions, and a postcard informing 

her husband of the scheduled physical exam. The following day, Schicker spoke on the phone with 

an individual named Kara Vincent, who he believed was a representative at LFG. Vincent 

apparently reported to Schicker that “Lincoln Financial Group had changed its decision not to 

pay,” and approved a $130,000 life insurance claim. Klenda testified that Vincent was a “broker”

and not affiliated with LFG.

Klenda testified that on September 28, 2017, she contacted Cady directly to inform her that 

Klenda had received Cady’s complaint from the Nebraska Department of Insurance. Klenda’s 

claim notes were entered into evidence and reflect that during her conversation with Cady on 

September 28, she told Cady that a life insurance claim had not been submitted to LFG and that 

due to a miscommunication, Cady’s complaint letter had served as LFG’s first notification of the 

husband’s death. During this conversation, Cady also requested reimbursement of attorney fees as 

she was “told by Kara Vincent to hire an attorney because she would be lucky to get [$]20,000.”

Klenda told Cady that LFG would not reimburse any attorney fees because no claim had been 

submitted and LFG had not advised Cady to hire an attorney.

An email from Klenda to Cady dated the following day was entered into evidence. The 

email confirmed that Cady had supplied the death certificate to Klenda and that Klenda had 

submitted the information necessary to build a life insurance claim. The email also states that, 

“[s]ince we are working together to get this claim completed and you are the named beneficiary, 

you do not need an attorney to work with us to get this claim paid.” Cady forwarded Klenda’s 

email to Schicker roughly 20 minutes after receiving it.

On October 2, 2017, Klenda’s claim notes reflect that she had a phone call with Cady 

regarding Cady’s payment preference. Cady requested that LFG not pay the benefit until October 

6. When Klenda asked about the circumstances of the request, Cady responded that it was because 

“she did not use an attorney to get this claim paid and that the group told her to hire an attorney 

[and] that she wanted to settle things with the attorney since he gets paid if payment is made.” The 

notes indicated that Klenda received approval from her manager for the delayed payment to be 

initiated on October 6 and completed on October 9, and communicated this to Cady. At trial, Cady 

did not recall requesting Klenda to delay payment, though she acknowledged that she had been 

aware that she was going to be paid for the insurance claim before she ended her fee agreement 

with Schicker.

On October 2, 2017, at 10:36 a.m., Cady sent Schicker an email with the subject line 

“Cancellation of Services.” The email states:

At this time, I have a family member who is going to handle insurance claims for 

Lincoln Financial. This email serves as a notification that your services are no longer 

needed for this matter. Please send a statement for amount owed to date.

I do still want to retain you for possible case regarding the accident itself.
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Schicker testified that he was surprised by the email as Cady had never communicated her 

dissatisfaction with his services. Schicker then called Cady and requested that they meet to discuss 

the email in person.

Later that day Cady brought two friends with her to the meeting with Schicker. Cady 

testified that Schicker often talked in circles and that she “couldn’t get a word in edgewise and I 

needed somebody to be there to help me get through to him that . . . he was getting fired.” Cady 

denied firing Schicker because she did not want to pay him a contingency fee on the insurance 

claim, rather she testified that Schicker was not pursuing the personal injury claim, the sole claim 

for which he was hired to represent her. Cady also noted that Klenda had told Cady that she did 

not need an attorney.

Cady testified that she had been dissatisfied with Schicker’s representation prior to learning 

that she would be paid for the insurance claim. Cady recalled a lunch meeting between herself and 

Schicker to which Schicker brought his wife. Cady’s case was not discussed until the last few 

minutes of the hours long meeting, and even then, Cady felt that Schicker was reluctant to discuss 

the personal injury claim. When Cady would bring up the personal injury claim, Schicker 

continuously returned to the insurance claim. Cady described the lunch meeting as “awkward” and 

“odd[.]” Cady testified that she had tried to talk about her issues with Schicker’s representation 

during the lunch meeting and in subsequent phone calls to his office, but that Schicker would not 

answer his phone.

Schicker testified that he had focused on pursuing the life insurance claim before the 

personal injury claim because Cady was “very stressed about the fact that the insurance company 

had turned down her claim,” and he was acting “to get a good answer for her quickly to alleviate 

her stress.”

During the October 2, 2017, meeting, the parties canceled their fee agreement. Another 

copy of the fee agreement was entered into evidence, which includes the additional notation 

“Agreement cancelled as of 10-2-2017” at the bottom of the form and Schicker’s signature below 

the notation. Schicker acknowledged that the notation evidenced his agreement to cancel the 

contingency fee agreement with Cady.

After Cady fired Schicker on October 2, she offered to pay him his hourly rate for any work 

he may have performed on her case. Cady testified that Schicker responded that he did not want 

Cady’s money, but the insurance money from LFG. Cady left the meeting with the understanding 

that any agreement between herself and Schicker had been terminated and that she owed him 

nothing.

Schicker testified that as soon as he became aware that a claim had been paid, he began 

pursuing compensation for his fees through LFG. A letter from Schicker to Klenda dated October 

3, 2017, states: “Brandi told me you would consult with your supervisor about paying my attorney 

fees, because Brandi shouldn’t have had to hire an attorney for this claim. I enclose a page showing 

my time. I believe it totals 58.6 hours. My normal hourly rate is $250 per hour.” Attached to the 

letter is an itemized bill showing the time Schicker allegedly expended on Cady’s case, including 

several hours spent on “research on issues,” “research on bad faith,” “expert witness needed, began 

search,” “trial strategy,” and “more research.” On cross-examination Schicker conceded that he 

was unable to recall the details of these time entries or provide any notes or documentation related 

to the over 30 hours of legal research.
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On October 5, 2017, Cady sent Klenda an email with an attached copy of the parties’

canceled fee agreement. On October 9, LFG sent a letter to Cady confirming that her husband’s 

life insurance claim had been filed and approved for a $200,000 benefit.

Cady testified that she had done all of the work to collect the insurance claim herself. 

Klenda testified that the only phone call she had with Schicker occurred after the claim was paid 

and he was attempting to collect attorney fees from LFG.

The district court dismissed Schicker’s complaint in a thorough order filed on May 18, 

2023. The court pointed to the blank space in the fee agreement as to who the client may have a 

claim against and noted Cady’s undisputed testimony that at the time the agreement was entered 

into by the parties, the actual fee agreement was not entirely completed.

Further, the district court noted Cady’s testimony that she had retained Schicker to pursue 

only a personal injury claim as the result of her husband’s car accident. The district court observed 

that a large portion of Schicker’s own notes were dedicated to the personal injury claim. Though 

both parties agreed that the personal injury claim was at least a portion of why Cady had retained 

Schicker, that claim was not included in the fee agreement. The court found that there was no

contract between the parties as not all terms were included at the time the agreement was signed, 

and there was no meeting of the minds as to whom Schicker was actually going to be pursuing a 

claim against.

Additionally, the district court found that Schicker lacked credibility. Schicker’s itemized 

bill stated that he spent 58.6 hours of billable time over the course of 12 days working toward the 

collection of the insurance benefit. However, Schicker had “no evidence that either supported these 

hours of billable time or any evidence that could even minimally justify spending such an 

enormous amount of billable time on the collection of the insurance proceeds.” The court was 

concerned that the itemized bill reflected that Schicker billed 4.3 hours of work on October 2, 

2017, when he was notified by an email from Cady at approximately 10:30 a.m. that he had been 

fired. The court was additionally concerned about the testimony regarding a lunch meeting 

between the parties where Schicker brought his wife, thus destroying any attorney client privilege, 

and did not speak to Cady about her case until the last few minutes of the meeting, for which 

Schicker’s itemized bill reflects that he billed 5 hours.

The district court found that Cady was the only person who performed any efforts 

necessary to work with LFG to recover the insurance proceeds and that all of Schicker’s itemized 

bill entries did “not sway this Court that he actually took any action to collect these insurance 

proceeds,” especially given Klenda’s testimony that she never heard from or worked with Schicker 

in regard to paying out the proceeds. Klenda’s only interactions in this regard were directly with 

Cady.

The district court concluded that no agreement had been formed between Schicker and 

Cady because there was no meeting of the minds as elicited by the testimony at trial. Additionally, 

from judging the credibility of the witnesses, Schicker was not entitled to any other recovery.

Schicker appeals.

ASSIGNMENTS OF ERROR

Schicker assigns, restated, that (1) the district court erred in finding that there had been no 

meeting of the minds during the formation of the contingency fee agreement, and (2) Cady violated 
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her duty of good faith and fair dealing by seeking to fire Schicker after learning that the insurance 

claim would be paid.

STANDARD OF REVIEW

Whether a contract exists is a question of fact; the meaning of a contract is a question of 

law. Ross, Schroeder v. Artz, 23 Neb. App. 545, 875 N.W.2d 457 (2016). In a bench trial of a law 

action, the trial court’s factual findings have the effect of a jury verdict, which an appellate court 

will not disturb on appeal unless clearly wrong. And an appellate court does not reweigh the 

evidence but considers the judgment in the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party. Id.

An appellate court independently reviews questions of law decided by a lower court. Bruce 

Lavalleur, P.C. v. Guarantee Group, 314 Neb. 698, 992 N.W.2d 736 (2023).

ANALYSIS

Meeting of the Minds.

Schicker first assigns that the district court erred in finding that there had been no meeting 

of the minds during the formation of the contingency fee agreement. He argues that Cady’s 

admissions at trial evidence that a meeting of the minds had occurred.

A party seeking to enforce a contract has the burden of establishing the existence of a valid, 

legally enforceable contract. Acklie v. Greater Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 

297 (2020). To create a contract, there must be both an offer and an acceptance; there must also 

be a meeting of the minds or a binding mutual understanding between the parties to the contract. 

Id. It is a fundamental rule that in order to be binding, an agreement must be definite and certain 

as to the terms and requirements. It must identify the subject matter and spell out the essential 

commitments and agreements with respect thereto. Id.

Cady testified at trial that the first paragraph of the contingency fee agreement was not 

completed at the time she signed the document. Though the blank line of the fee agreement was 

filled in with “Lincoln Financial,” indicating that the fee agreement involved a claim Cady may 

have against LFG, Cady testified that the blank line was not filled in, nor did reference to LFG 

appear anywhere in the agreement, at the time she signed it. Schicker did not testify to the condition 

of the fee agreement at the time the parties signed and did not otherwise present evidence to refute 

Cady’s testimony.

Schicker testified that he was retained to represent Cady on both the personal injury claim 

and the insurance claim. However, Cady testified that she had retained Schicker to represent her 

solely on the personal injury claim. The personal injury claim is not included in the fee agreement 

and there was no evidence that another fee agreement related to the personal injury claim was 

executed.

Cady admitted at trial that she was aware that the insurance claim was approved by LFG 

prior to terminating Schicker’s services and Klenda’s notes reflect that Cady sought a delayed 

disbursement to avoid paying Schicker a contingency fee related to the insurance claim. However, 

the evidence at trial demonstrated that Cady wanted to resolve any question about whether 

Schicker was representing her on the insurance claim, as she believed he was not.
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A fundamental and indispensable basis of any enforceable agreement is that there be a 

meeting of the minds of the parties as to the essential terms and conditions of the proposed contract. 

Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015). Schicker argues there was 

irrefutable evidence at trial that he was retained by Cady to represent her in connection with her 

claim against LFG, as evidenced by the contingency fee agreement together with her admissions 

to such at trial. But contrary to this assertion, at trial, Cady testified the agreement she signed did 

not contain any reference to the matter Schicker agreed to handle which gave rise to her confusion 

governing the scope of his representation. As to this conflict in evidence, the court found that Cady 

provided the more credible account and that the contract failed to address the scope of Schicker’s 

representation. Giving weight to the trier of fact who heard and observed the witnesses, we do not 

find the court clearly erred in this determination. As such, as to this critical fact, to wit, the scope 

of Schicker’s representation of the client, we agree the contingency fee agreement between the 

parties did not contain all of the essential terms at the time it was executed by the parties, namely 

who Schicker was actually going to be pursuing a claim against. Because a meeting of the minds 

had not occurred, there existed no valid, enforceable contract between the parties. The district court 

did not err in so finding.

Good Faith and Fair Dealing.

Schicker also assigns that Cady’s attempt to fire Schicker was evidence of her violation of 

a duty of good faith and fair dealing, because Cady knew that the full insurance claim would be 

paid prior to firing Schicker on October 2, 2017. Because LFG had agreed to pay the insurance 

claim prior to his firing, Schicker argues that he had earned his 40 percent contingency fee and 

was entitled to recovery.

Schicker did not raise Cady’s alleged breach of her duty of good faith and fair dealing in 

his complaint or at trial. An appellate court will not consider an argument or theory raised for the 

first time on appeal. Thus, when an issue is raised for the first time in an appellate court, it will be 

disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented 

and submitted to it for disposition. Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).

Moreover, because we found above that a valid, enforceable contract did not exist between 

the parties, we need not consider whether Cady was bound by an implied covenant relating to the 

agreement. An appellate court is not obligated to engage in an analysis that is not necessary to 

adjudicate the case and controversy before it. Avis Rent A Car Sys. v. McDavid, 313 Neb. 479, 984 

N.W.2d 632 (2023). Thus, we do not address this assignment of error further.

CONCLUSION

We find no error in the district court’s determination that there was never a meeting of the 

parties’ minds concerning the claim at issue in the contingency fee agreement. We affirm the 

district court’s finding that a valid contract did not exist and its dismissal of Schicker’s complaint.

AFFIRMED.