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305 Nebraska Reports

SELLERS v. REEFER SYSTEMS

Cite as 305 Neb. 868

William Sellers, appellee, v. 

Reefer Systems, Inc., appellant.

___ N.W.2d ___

Filed May 22, 2020. No. S-19-082.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

2. Judgments: Statutes: Rules of the Supreme Court: Appeal and 

Error. Because Nebraska Supreme Court rules are construed in the 

same manner as statutes, an appellate court does so independently of the 

conclusion of the lower court.

3. Attorney Fees: Appeal and Error. A court’s decision awarding or 

denying attorney fees will be upheld absent an abuse of discretion.

4. Attorney Fees: Statutes: Rules of the Supreme Court: Affidavits: 

Appeal and Error. In order to recover statutory “reasonable” attorney fees under Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018), the 

details of the attorney-client agreement is not a necessary component of 

the affidavit submitted pursuant to Neb. Ct. R. App. P. § 2-109(F) (rev. 

2014) for justification of appellate attorney fees.

5. Statutes: Legislature: Intent. The intent of the Legislature may be 

found through its omission of words from a statute as well as its inclusion of words in a statute, and courts are not permitted to read additional words into a clear and unambiguous statute.

6. Workers’ Compensation: Attorney Fees. When Neb. Rev. 

Stat. § 48-125(4)(b) (Cum. Supp. 2018) of the Nebraska Workers’ 

Compensation Act does not specify that reasonable attorney fees must 

have been “incurred,” it is improper for a court to add it.

7. Workers’ Compensation. The Nebraska Workers’ Compensation Act 

should be construed liberally to carry out its spirit and beneficent purpose of providing compensation to employees injured on the job.

Nebraska Supreme Court Online Library

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

06/19/2020 09:08 AM CDT
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SELLERS v. REEFER SYSTEMS

Cite as 305 Neb. 868

8. Attorney Fees: Legislature: Public Policy. The Legislature determined 

as a matter of public policy that the “reasonable attorney’s fee” mandated by Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) does not 

depend on the terms of any fee agreement.

9. Attorney Fees. Statutory “reasonable” attorney fees taxed as costs do 

not go directly to the attorney.

10. ____. In order to determine proper and reasonable attorney fees, a court 

considers several factors, including the nature of the litigation, the time 

and labor required, the novelty and difficulty of the questions raised, the 

skill required to properly conduct the case, the responsibility assumed, 

the care and diligence exhibited, the result of the suit, the character and 

standing of the attorney, the customary charges of the bar for similar 

services, and the general equities of the case.

Petition for further review from the Court of Appeals, 

Riedmann, Bishop, and Arterburn, Judges, on appeal 

thereto from the Workers’ Compensation Court, J. Michael 

Fitzgerald, Judge. Judgment of Court of Appeals reversed 

and remanded with directions.

Tanya J. Hansen, of Smith, Johnson, Allen, Connick & 

Hansen, for appellant.

Joel D. Nelson, of Keating, O’Gara, Nedved & Peter, P.C., 

L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

In an appeal of a workers’ compensation case, wherein the 

award to the employee was affirmed, the Nebraska Court of 

Appeals denied the employee’s motion for attorney fees for his 

counsel’s appellate work, despite the statutory mandate under 

Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) that reasonable attorney fees shall be allowed to the employee by the 

appellate court if the employer files an appeal from a workers’ 

compensation award and fails to obtain any reduction in the 
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SELLERS v. REEFER SYSTEMS

Cite as 305 Neb. 868

amount of such award. We hold that the affidavit submitted 

by the employee’s attorney, which mentioned a contingency 

fee agreement, presented the total number of hours worked 

on the appeal with a couple of examples of tasks performed, 

set forth an hourly rate, averred that the total hours claimed 

were calculated from business records itemizing the same, and 

averred in the attorney’s expert opinion that the hours and rate 

were reasonable, sufficiently justifies under Neb. Ct. R. App. 

P. § 2-109(F) (rev. 2014) reasonable attorney fees to which the 

employee has a statutory right. We reverse the judgment and 

remand the matter to the Court of Appeals to determine the 

amount of the fee.

BACKGROUND

William Sellers was injured while working for Reefer 

Systems, Inc., in 2007. In 2019, the Workers’ Compensation 

Court awarded him permanent total disability benefits. Reefer 

Systems appealed the award to the Court of Appeals. The 

Court of Appeals affirmed the award in all respects in a memorandum opinion issued on October 8, 2019. 1

Sellers timely filed a motion in the Court of Appeals for an 

award of reasonable attorney fees pursuant to § 48-125(4)(b) 

for the reason that the employer appealed the trial court decision and there was no reduction in the amount of the award 

on appeal.

Attached to the motion is the affidavit of Sellers’ counsel 

who worked on the appeal. Counsel avers that he spent 37.8 

hours in total on the appeal, beginning April 18, 2019, and ending May 7, and opines that was “a reasonable amount of time 

for the work involved.” Counsel describes that he has been 

an attorney since 1997 and that since 1999, a substantial portion of his practice has been workers’ compensation cases. He 

avers that his hourly rate ranges from $140 to $245 per hour, 

that he is generally familiar with hourly rates charged by other 

1 Sellers v. Reefer Systems, No. A-19-082, 2019 WL 4940200 (Neb. App. 

Oct. 8, 2019) (selected for posting to court website).
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litigation attorneys in this geographic area, and that an hourly 

rate of $200 per hour for his work on Sellers’ appeal would 

be reasonable and consistent with fees charged in this area for 

attorneys of similar background and skill.

Counsel avers, further, that he derived the number of hours 

spent on the appeal from an audit of records maintained by his 

law firm’s staff and himself, consistent with their regular and 

established business practices. He notes that the audit revealed 

its first entry on April 18, 2019, as reviewing the bill of exceptions, and, as its last entry, revising Sellers’ brief. The hours 

assigned to these particular tasks is not set forth. No other 

tasks are specifically delineated. The referenced records were 

not attached to the affidavit. Counsel notes in the affidavit that 

he represented Sellers “on a contingent fee.” The details of that 

arrangement are not otherwise described.

The Court of Appeals denied the motion for attorney fees 

on the ground that counsel’s affidavit did not provide sufficient information to justify the reasonableness of the attorney 

fees sought. The Court of Appeals issued the following minute 

entry:

[Sellers’] motion for attorney fees denied. Affidavit 

fails to justify amount of attorney fees sought. See Neb. 

Ct. R. App. P. § 2-109(F). See also St. John v. Gering 

Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019) (in 

seeking attorney fee[s], lawyer has burden of proving not 

only extent and value of services provided, but also existence and terms of fee contract).

We granted Sellers’ petition for further review of this order 

of the Court of Appeals which overruled his motion for attorney fees.

ASSIGNMENTS OF ERRORS

Sellers assigns that the Court of Appeals erred in (1) overruling Sellers’ motion for statutory attorney fees and (2) imposing a burden of proof regarding attorney fees derived from fee 

disputes between attorneys or between an attorney and client.
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SELLERS v. REEFER SYSTEMS

Cite as 305 Neb. 868

STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 2

[2] Because Nebraska Supreme Court rules are construed in 

the same manner as statutes, an appellate court does so independently of the conclusion of the lower court. 3

[3] A court’s decision awarding or denying attorney fees will 

be upheld absent an abuse of discretion. 4

ANALYSIS

Section 48-125(4)(b) provides for mandatory attorney fees 

for appellate work in circumstances where the employer appeals 

and fails to obtain any reduction in the award:

If the employer files an appeal from an award of a judge 

of the compensation court and fails to obtain any reduction in the amount of such award, the Court of Appeals 

or Supreme Court shall allow the employee a reasonable

attorney’s fee to be taxed as costs against the employer 

for such appeal.

(Emphasis supplied.)

Section 2-109(F) of the Supreme Court rules sets forth the 

general procedure by which an employee must request the 

attorney fees allowable under § 48-125(4), 5 inasmuch as it sets 

forth the procedure for any litigant seeking from our appellate 

courts attorney fees to which there is a right under law or custom. Section 2-109(F) provides in relevant part:

Any person who claims the right under the law or a uniform course of practice to an attorney fee in a civil case 

appealed to the Supreme Court or the Court of Appeals 

2 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).

3 See Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).

4 See State ex. Rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 

924 N.W.2d 664 (2019).

5 See Escobar v. JBS USA, 25 Neb. App. 527, 909 N.W.2d 373 (2018).
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must file a motion for the allowance of such a fee supported by an affidavit which justifies the amount of the fee 

sought for services in the appellate court.

(Emphasis supplied.) Sellers’ motion for attorney fees pursuant 

to § 48-125(4)(b) was timely under § 2-109(F), but the parties 

dispute whether the supporting affidavit adequately justifies 

“reasonable” attorney fees.

In denying Sellers’ motion, the Court of Appeals concluded 

that the affidavit submitted under § 2-109(F) was inadequate 

because it did not provide the details of the fee agreement 

between Sellers and his attorney. This was in error. We have 

never held that in order to recover statutory “reasonable” 

attorney fees, the attorney must submit the details of the 

attorney-client agreement. Neither is such evidence specified in 

§ 2-109(F) as a necessary component to the justification of an 

appellate attorney fees.

We have affirmed allowances of statutory attorney fees for 

trial work despite a lack of proof as to any fee agreement. In 

Dale Electronics, Inc. v. Federal Ins. Co.,

 6 we held under a 

statute setting forth the right to “reasonable” attorney fees that 

the attorney-fee allowance for the work of in-house counsel 

should be for the time actually engaged in the work to the same 

extent as outside counsel; evidence of counsel’s annual salary 

was not required. And in Black v. Brooks,

 7 we affirmed the 

lower court’s award of statutory “reasonable attorney’s fees” 8

to which the successful tenant was entitled under Nebraska’s 

Uniform Residential Landlord and Tenant Act (URLTA), 9 even 

though the tenant was represented on a pro bono basis without 

any provision under the agreement for payment to the attorney 

in the event of an award of statutory fees.

6 See Dale Electronics, Inc. v. Federal Ins. Co., 205 Neb. 115, 286 N.W.2d 

437 (1979).

7 Black v. Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).

8 Neb. Rev. Stat. § 76-1425(2) (Reissue 2009).

9 Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2009).
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In Black, we indicated that the tenant “need only present 

some evidence to the trial court upon which the court can make 

a meaningful award.” 10 We observed, “We have never said a 

fee agreement or any other agreement showing an obligation of 

the client to pay the attorney fees to the attorney is part of the 

proof that must be proffered in order to support an award of 

statutory attorney fees.” 11

We reasoned in Black that the amount of the statutory 

attorney fees under URLTA is not directly tied by the statute 

to the amount due under a fee agreement and that the public 

policy goals of encouraging compliance with laws serving 

the public interest and encouraging settlements are effectively 

furthered only when the statutory attorney fees under URLTA 

are awarded for fee-based and pro bono work alike. A landlord who violates URLTA should not “reap the benefits of free 

representation to the other party.” 12 There was nothing in the 

statutory language of “reasonable attorney’s fees” in URLTA 

that made the recovery of such fees dependent upon a billing 

obligation, and we held it would be improper to insert the additional term “incurred” into the statute. 13

[4-6] We now hold that in order to recover statutory “reasonable” attorney fees under § 48-125(4)(b), the details of the 

attorney-client agreement is not a necessary component of the 

affidavit submitted pursuant to § 2-109(F) for justification of 

appellate attorney fees. The intent of the Legislature may be 

found through its omission of words from a statute as well as 

its inclusion of words in a statute, and we are not permitted to 

read additional words into a clear and unambiguous statute. 14

Several attorney fee statutes, such as the one recently addressed 

10 Black, supra note 7, 285 Neb. at 451, 827 N.W.2d at 264.

11 Id.

12 Id. at 454, 827 N.W.2d at 266.

13 See Black, supra note 7.

14 See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 

(2016).
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in TransCanada Keystone Pipeline v. Nicholas Family,

 15 specify that to be recoverable, the reasonable attorney fees must 

have been “incurred.” 16 When § 48-125(4)(b) of the Nebraska 

Workers’ Compensation Act does not specify that reasonable 

attorney fees must have been “incurred,” it is improper for us 

to add it.

[7,8] We have repeatedly said that the Nebraska Workers’ 

Compensation Act should be construed liberally to carry out 

its spirit and beneficent purpose of providing compensation 

to employees injured on the job. 17 It is apparent that the 

Legislature determined as a matter of public policy that the 

“reasonable attorney’s fee” mandated by § 48-125(4)(b) does 

not depend on the terms of any fee agreement. Thus, the affidavit submitted under § 2-109(F) in support of attorney fees 

pursuant to § 48-125(4)(b) does not need to set forth the existence and terms of a fee contract between the employee and the 

attorney in order to “justify” statutorily mandated “reasonable” 

attorney fees for the appeal.

The Court of Appeals’ reliance on St. John v. Gering Public 

Schools 18 to conclude otherwise is misplaced. St. John did not 

involve attorney fees taxed as costs under a statute or custom. 

Instead, it involved the question of the attorneys’ entitlement 

under their attorneys’ liens for services rendered pursuant to 

their fee agreements. In an analysis centered around the professional responsibility rules, we held that “while a lawyer with a 

valid fee agreement is entitled to recover from a client what a 

15 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 

N.W.2d 60 (2018).

16 See, e.g., Neb. Rev. Stat. § 1-148 (Reissue 2012); Neb. Rev. Stat. § 21-281 

(Cum. Supp. 2018); Neb. Rev. Stat. § 30-4020 (Supp. 2019); Neb. Rev. 

Stat. § 50-1515 (Cum. Supp. 2018); Neb. Rev. Stat. § 53-223 (Reissue 

2010); Neb. Rev. Stat. § 76-726 (Reissue 2018); Neb. Rev. Stat. § 81-3537 

(Reissue 2014); Neb. Rev. Stat. § 85-1510 (Reissue 2014).

17 Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d 

851 (2019). See Neb. Rev. Stat. § 48-101 (Reissue 2010).

18 St. John v. Gering Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019).
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fee agreement allows to the extent that amount is reasonable, 

a lawyer is not entitled to recover from a client more than a 

fee agreement allows.” 19 Neb. R. of Prof. Cond. § 3-501.5 

provides in part that “[a] lawyer shall not make an agreement 

for, charge, or collect an unreasonable fee or an unreasonable 

amount for expenses.”

In so holding in St. John, we cited to Hauptman, O’Brien v. 

Turco 20 for the proposition which states:

In a suit to recover an unpaid fee, “the lawyer has the 

burden of persuading the trier of fact, when relevant, of 

the existence and terms of any fee contract, the making 

of any disclosures to the client required to render a contract enforceable, and the extent and value of the lawyer’s 

services.”

Like St. John, Hauptman, O’Brien did not involve statutory 

“reasonable” attorney fees to be taxed as costs in favor of the 

litigant-client. It was an action to enforce an attorney lien in an 

amount computed in accordance with the contingent fee agreement. The client asserted that recovery under the contingent 

fee agreement was excessive for the amount of work actually 

done, and we held that because the law firm failed to present 

any evidence in support of its motion for summary judgment 

as to the “extent and value of the professional services which 

it performed” during the period of its representation, there 

was “no factual basis upon which to determine whether or 

not the claimed fee computed pursuant to the contingent fee 

agreement is reasonable.” 21 This was because collection by the 

attorney of attorney fees computed pursuant to a contingent 

fee agreement is still subject to the ethical principle embodied 

in § 3-501.5 of the professional conduct rules that prohibits a 

19 Id. at 277, 923 N.W.2d at 75.

20 See Hauptman, O’Brien v. Turco, 273 Neb. 924, 931, 735 N.W.2d 368, 

374 (2007) (emphasis supplied), quoting Restatement (Third) of the Law 

Governing Lawyers § 42(2) (2000).

21 Hauptman, O’Brien, supra note 20, 273 Neb. at 932, 735 N.W.2d at 374.
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lawyer from making an agreement for, charging, or collecting 

an unreasonable fee.

[9] But, as we pointed out in Black, statutory “reasonable” attorney fees taxed as costs do not go directly to the 

attorney. 22 The award of fees for an unsuccessful appeal by 

an employer in a workers’ compensation case is “for the benefit of the claimant employee.” 23 Within constitutional limits, 

the Legislature is free to set statutory attorney fees under 

the Nebraska Workers’ Compensation Act in any amount it 

deems fit to further the public policy of the act. Attorney 

fees under § 48-125(4)(b) shall be allowed in an amount that 

is reasonable. That determination depends on the extent and 

value of services provided and is not dependent upon a fee 

agreement.

[10] We find that the affidavit submitted on Sellers’ behalf 

contains sufficient justification of the extent and value of the 

attorney services provided on appeal to make a meaningful 

determination of the amount of “reasonable” attorney fees 

to which Sellers is entitled. In order to determine proper 

and reasonable attorney fees, a court considers several factors, including the nature of the litigation, the time and labor 

required, the novelty and difficulty of the questions raised, the 

skill required to properly conduct the case, the responsibility 

assumed, the care and diligence exhibited, the result of the 

suit, the character and standing of the attorney, the customary 

charges of the bar for similar services, and the general equities 

of the case. 24

Sellers’ affidavit did not need to set forth a detailed log of 

all tasks and the amount of time spent on each task in order 

to be considered under § 2-109(F) in determining reasonable attorney fees. The affidavit by Sellers’ attorney stated 

22 See Black, supra note 7.

23 Neeman v. Otoe County, 186 Neb. 370, 376, 183 N.W.2d 269, 273 (1971).

24 See, Pan v. IOC Realty Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018); 

Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015).
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the total number of hours and the applicable rate, and it 

presented an expert opinion that both were reasonable. The 

attorney noted a couple of tasks performed and stated that the 

number of hours claimed had been carefully logged in his law 

firm’s business records.

We also note that the evidence supporting a meaningful 

determination of reasonable attorney fees on appeal is not limited to the affidavit required under § 2-109(F). It also includes 

the court’s general experience in matters of litigation and what 

has been produced by the attorney for the appellate court’s 

direct consumption. 25

The Court of Appeals abused its discretion in concluding 

that it could not meaningfully determine a “reasonable attorney’s fee” pursuant to § 48-125(4)(b), because Sellers’ affidavit failed to adequately “justify” one. We reverse the denial 

of Seller’s motion for appellate attorney fees and remand the 

matter with directions for the Court of Appeals to determine 

the amount of reasonable attorney fees. Nothing in this opinion 

should be read as expressing an opinion as to what the amount 

of attorney fees should be.

CONCLUSION

For the foregoing reasons, we reverse the judgment and 

remand the matter to the Court of Appeals with directions.

Reversed and remanded with directions.

25 See, e.g., Rinderknecht v. Rinderknecht, 204 Neb. 648, 284 N.W.2d 569 

(1979); Lippincott v. Lippincott, 152 Neb. 374, 41 N.W.2d 232 (1950);

Specht v. Specht, 148 Neb. 325, 27 N.W.2d 390 (1947); Yost v. Yost, 143 

Neb. 80, 8 N.W.2d 686 (1943).