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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

Elisa Gerber, appellant, v. P & L Finance Co., Inc., 

a Nebraska corporation, doing business as

Elisa Ilana, et al., appellees.

___ N.W.2d ___

Filed November 2, 2018. No. S-17-710.

1. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

2. Pleadings. When the title of a filing does not reflect its substance, it is 

proper for a court to treat a pleading or motion based on its substance 

rather than its title.

3. Attorney Fees: Statutes: Words and Phrases: Appeal and Error. 

“Proceeding” as used in Neb. Rev. Stat. § 21-2,114 (Supp. 2017) 

includes appeals, and therefore, the statute applies to indemnification for 

attorney fees incurred in an appeal.

4. ____: ____: ____: ____. Because Neb. Rev. Stat. § 21-2,114 (Supp. 

2017) provides that a director may apply for indemnification for attorney fees “to the court conducting the proceeding” and because “proceeding” includes an appeal, § 21-2,114 provides that a director may apply 

to an appellate court for indemnification related to an appeal that took 

place in the appellate court.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Pirtle and Arterburn, Judges, on 

appeal thereto from the District Court for Douglas County, 

Peter C. Bataillon, Judge. Judgment of Court of Appeals 

reversed, and cause remanded with directions.

Brian E. Jorde and Christian T. Williams, of Domina Law 

Group, P.C., L.L.O., for appellant.

Edward D. Hotz, of Pansing, Hogan, Ernst & Bachman, 

L.L.P, for appellees P & L Finance Co. and Laurie Langdon.

Nebraska Supreme Court Online Library

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

11/16/2018 12:11 AM CST
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

James Polack, P.C., L.L.O., for appellee Paul Gerber.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

We granted appellee Paul Gerber’s petition for further review 

of the order of the Nebraska Court of Appeals which overruled 

his motion in which he sought to recover attorney fees from 

coappellee P & L Finance Co., Inc. (P & L). Paul styled his 

pleading as a “Motion for Attorney Fees.” However, in the 

filing, Paul sought an order requiring P & L, of which he is a 

director, to indemnify him for attorney fees he incurred in the 

appeal of a case where he was made a party because he was a 

director. We reverse the order of the Court of Appeals which 

denied Paul’s request, and we remand the cause to the Court of 

Appeals with directions to consider the filing as an application 

for an order for indemnification rather than as a motion for an 

award of attorney fees.

STATEMENT OF FACTS

Elisa Gerber filed an action in the district court for Douglas 

County against P & L seeking, inter alia, issuance of a stock 

certificate. She also named as defendants Laurie Langdon and 

Paul, who are directors of P & L. The defendants moved for 

summary judgment. The district court determined that Elisa’s 

claim for issuance of a stock certificate was barred by the 

statute of limitations and, consequently, that her other claims 

were also barred. The district court granted summary judgment in favor of the defendants. Elisa appealed to the Court of 

Appeals. On April 24, 2018, the Court of Appeals affirmed the 

district court’s grant of summary judgment in a memorandum 

opinion. Gerber v. P & L Finance Co., No. A-17-710, 2018 

WL 1920600 (Neb. App. Apr. 24, 2018) (selected for posting 

to court website).

After the Court of Appeals filed its decision, Paul filed a 

motion titled “Motion for Attorney Fees.” Paul, an appellee 
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

in the appeal, did not seek an award of attorney fees from the 

appellant, Elisa. Instead, Paul requested an order requiring 

another appellee, P & L, to pay his attorney fees. In his motion, 

Paul made reference to Neb. Ct. R. § 2-109(F) (rev. 2014) 

(Rule 2-109(F)), which provides in 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 

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.

The affidavit of his attorney setting forth attorney fees in the 

amount of $ 5,381.25 incurred in connection with the appeal 

to the Court of Appeals was attached to the motion. Paul also 

referred to P & L’s articles of incorporation.

Paul alleged in the motion that he was made a party to 

this case based solely on his status as an officer, director, 

and shareholder of P & L. He further alleged that P & L’s 

“Articles of Incorporation” provided that P & L indemnify him 

for attorney fees he incurred in the appeal of this action. Paul 

cited provisions of the Nebraska Model Business Corporation 

Act, Neb. Rev. Stat. §§ 21-201 through 21-2,232 (Cum. Supp. 

2016 & Supp. 2017), which, he asserted, require that he be 

indemnified and authorized the Court of Appeals to order such 

indemnification.

P & L and Langdon objected and noted that Rule 2-109(F) 

provides for an award of attorney fees when a party is entitled to such “under the law or a uniform course of practice.” Supplemental brief for appellees P & L and Langdon in 

response to petition for further review at 1. P & L and Langdon 

argued that under the law and uniform course of practice in 

Nebraska, one can recover attorney fees only from an adverse 

party, not from a “co-party.” Id. at 2. They asserted that Paul’s 

request should be denied, because Paul was seeking attorney 

fees from a coparty and “[t]here is no law or uniform course of 

procedure which recognizes the recovery of attorney fees from 

a non-adverse party . . . .” Id. at 1.
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

The Court of Appeals denied Paul’s request. In a minute 

entry, the Court of Appeals stated, “Appellee, Paul Gerber’s 

motion for attorney fees is denied. There is no law or uniform 

course of practice in the appellate courts which recognizes 

the recovery of attorney fees from a non-adverse party. See 

[Rule] 2-109(F).”

We granted Paul’s petition for further review of the order of 

the Court of Appeals which overruled his motion.

ASSIGNMENT OF ERROR

Paul generally claims that the Court of Appeals erred when 

it overruled his request for attorney fees.

STANDARD OF REVIEW

[1] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. In re 

Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018).

ANALYSIS

Paul claims that the Court of Appeals erred when it overruled his request for attorney fees. We determine that, although 

the request was fashioned as a motion for an award of attorney fees pursuant to Rule 2-109(F), the substance of Paul’s 

filing was a request for an order for indemnification from 

P & L under the Nebraska Model Business Corporation Act. 

We further determine that under the relevant statute, a director 

may apply to an appellate court which conducted the proceeding for an order for indemnification. We therefore reverse the 

order which overruled Paul’s request and remand this appeal to 

the Court of Appeals with directions to consider Paul’s filing 

consistent with § 21-2,114 as an application for an order for 

indemnification rather than a motion for an award of attorney fees.

Paul contends that the Court of Appeals erroneously read 

a “‘non-adverse party’ requirement” into Rule 2-109(F) and 

erred when it stated that there was “no law” that would allow 

recovery in the Nebraska appellate courts of attorney fees 

from a nonadverse party. He asserts that the Nebraska Model 
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

Business Corporation Act is the law that authorizes recovery 

of attorney fees in this case. In response, P & L and Langdon 

contend that Rule 2-109(F) controls and allows attorney fees 

only when a prevailing party is seeking an award of attorney 

fees from an adverse party. Although our reasoning differs 

somewhat, we agree with Paul that the Court of Appeals may 

determine whether he is entitled to indemnification for attorney 

fees in this appeal.

[2] Our review of the proceedings shows that certain parties and the Court of Appeals focused on the form of Paul’s 

request but failed to consider its substance. As noted, Paul 

fashioned the filing as a motion for an award of attorney 

fees; he titled it as a “Motion for Attorney Fees” and stated 

that it was filed pursuant to Rule 2-109(F). But, given the 

content of the motion, we read the substance of his filing 

as an application for an order of indemnification under the 

Nebraska Model Business Corporation Act. We have indicated 

that when the title of a filing does not reflect its substance, 

it is proper for a court to treat a pleading or motion based 

on its substance rather than its title. See Linda N. v. William 

N., 289 Neb. 607, 856 N.W.2d 436 (2014) (stating that it is 

proper for court to look at substance of petitioner’s actual 

request, instead of simply title of petition); State v. Loyd, 

269 Neb. 762, 696 N.W.2d 860 (2005) (stating that determination as to how motion should be regarded depends upon 

substance of motion, not its title). See, also, Dugan v. State, 

297 Neb. 444, 900 N.W.2d 528 (2017) (stating how motion 

should be regarded for purposes of determining whether its 

denial is final order depends upon substance of motion and 

not its title).

The relief Paul sought was not per se an award of attorney 

fees under Rule 2-109(F), which, when allowed, is typically 

granted to a prevailing party and against an adverse party. 

Paul and P & L differ in this appeal as to whether attorney 

fees may be awarded against a nonadverse party under Rule 

2-109(F). However, for purposes of this appeal, we need 

not resolve this disagreement, because we do not read the 
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

substance of Paul’s filing as an ordinary request for an award 

of attorney fees.

Instead, the substance of Paul’s filing shows that as a director, he is seeking indemnification from P & L for attorney fees 

he incurred in this appeal as authorized by the Nebraska Model 

Business Corporation Act. In particular, Paul cites § 21-2,114, 

which provides in part:

(a) A director who is a party to a proceeding because he 

or she is a director may apply for indemnification or an 

advance for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After 

receipt of an application and after giving any notice it 

considers necessary, the court shall:

(1) Order indemnification if the court determines that 

the director is entitled to mandatory indemnification under 

section 21-2,112;

(2) Order indemnification or advance for expenses if 

the court determines that the director is entitled to indemnification or advance for expenses pursuant to a provision 

authorized by subsection (a) of section 21-2,118; or

(3) Order indemnification or advance for expenses if 

the court determines, in view of all the relevant circumstances, that it is fair and reasonable[.]

The statutes mentioned in § 21-2,114 set forth circumstances 

in which indemnification would be mandatory or permissible. 

Section 21-2,112 provides:

A corporation shall indemnify a director who was wholly 

successful, on the merits or otherwise, in the defense 

of any proceeding to which the director was a party 

because he or she was a director of the corporation 

against expenses incurred by the director in connection 

with the proceeding.

Section 21-2,118(a) provides in part:

A corporation may, by a provision in its articles of 

incorporation or bylaws or in a resolution adopted or a 

contract approved by its board of directors or shareholders, obligate itself in advance of the act or omission 
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301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

giving rise to a proceeding to provide indemnification 

in accordance with section 21-2,111 or advance funds to 

pay for or reimburse expenses in accordance with section 21-2,113.

Referring to such statutory authority, Paul alleged that he 

was made a party to this case and to this appeal based on his 

status as an officer, director, and shareholder of P & L and 

that P & L’s articles of incorporation require indemnification 

of directors. Paul referred, inter alia, to an exhibit of P & L’s 

articles of incorporation and attached his attorney’s affidavit 

and billing for services related to the appeal.

Based on the substance of Paul’s filing, we determine that 

the filing was an application under § 21-2,114 for an order 

of indemnification against P & L. Although the filing was 

fashioned as a motion for an award of attorney fees under 

Rule 2-109(F), the Court of Appeals should have considered 

Paul’s request based on its substance. Having determined that 

the substance of Paul’s filing was an application by a director for an order of indemnification under § 21-2,114, we next 

consider whether an application of this sort may properly 

be made to the appellate court in which the attorney fees 

were incurred.

Section 21-2,114 provides in relevant part that one “who is 

a party to a proceeding” based on his or her status as a director may apply for indemnification “to the court conducting 

the proceeding or to another court of competent jurisdiction.” 

Section 21-2,110 sets forth definitions applicable to § 21-2,114 

and related statutes, and § 21-2,110(6) provides, “Proceeding 

means any threatened, pending, or completed action, suit, or 

proceeding, whether civil, criminal, administrative, arbitrative, or investigative and whether formal or informal.” Section 

21-2,110 is based on § 8.50 of the Model Business Corporation 

Act. See 2 Model Business Corporation Act Ann. § 8.50 (3d 

ed. 2002). With regard to the definition of “proceeding,” the 

official comment to the model act states as follows:

The broad definition of “proceeding” ensures that the 

benefits of this subchapter will be available to directors 
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301 Nebraska Reports

GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

in new and unexpected, as well as traditional, types 

of litigation or other adversarial matters, whether civil, 

criminal, administrative, or investigative. It also includes 

arbitration and other dispute resolution proceedings, 

lawsuit appeals and petitions to review administrative 

actions.

ABA Committee on Corporate Laws, Changes in the Model 

Business Corporation Act—Amendments Pertaining to 

Indemnification and Advance for Expenses, 49 Bus. Law. 741, 

755-56 (1994) (emphasis supplied).

[3,4] We read “proceeding” as used in § 21-2,114 to include 

appeals, and therefore, the statute applies to indemnification 

for attorney fees incurred in an appeal. Furthermore, because 

§ 21-2,114 provides that a director may apply for indemnification “to the court conducting the proceeding” and because 

“proceeding” includes an appeal, we read § 21-2,114 as providing that a director may apply to an appellate court for indemnification related to an appeal that took place in the appellate 

court. Based on this reading of § 21-2,114, we determine that 

in the present case, Paul properly sought indemnification for 

attorney fees incurred in the appeal to the Court of Appeals and 

that the Court of Appeals was a court to which he could apply 

for an order for indemnification.

As noted, § 21-2,114 provides that a director may apply to 

the “court conducting the proceeding,” as well as “to another 

court of competent jurisdiction.” Referring to this statutory 

provision, P & L and Langdon contend that Paul should have 

applied to the district court rather than the Court of Appeals 

for an indemnification order. We do not agree. We recognize 

that there are circumstances in which an appellate court might 

not be the best forum for deciding an application for indemnification. We are aware of cases in which, for example, an 

issue such as whether a director was sued in his or her capacity 

as a director was a fact issue that needed to be resolved by a 

trial court, either as a counterclaim within the action or as a 

separate action. See, Witco Corp. v. Beekhuis, 38 F.3d 682 (3d 

Cir. 1994); Heffernan v. Pacific Dunlop GNB Corp., 965 F.2d 
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Nebraska Supreme Court Advance Sheets

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GERBER v. P & L FINANCE CO.

Cite as 301 Neb. 463

369 (7th Cir. 1992); First American Corp. v. Al-Nahyan, 17 F. 

Supp. 2d 10 (D.D.C. 1998); Battenfeld of America Holding Co. 

v. Baird, Kurtz & Dobson, 1999 WL 1096047 (D. Kan. Nov. 8, 

1999) (unpublished memorandum and order).

But in the present case, in its order granting summary judgment, the district court found without challenge on appeal that 

it was “undisputed” that Paul was a director of P & L and the 

district court also granted Paul’s claim for indemnification 

for fees incurred at the district court level without objection. 

At oral argument, the only issue that P & L identified as in 

need of resolution was the reasonableness of the appellaterelated fee for which Paul requested indemnification. We see 

no need to refer this request for indemnification to the district 

court. Appellate courts can, and often do, decide whether fee 

requests for services performed in appeals before them are 

reasonable. Therefore, there is no apparent reason that the 

Court of Appeals could not determine Paul’s application in this 

appeal consistent with § 21-2,114(a).

CONCLUSION

In this case, Paul was a party because he was a director. 

We conclude that Paul’s request for attorney fees was, in substance, an application under § 21-2,114 for an order of indemnification from P & L. We further conclude that because the 

Court of Appeals was the court conducting the proceedings, 

such application for indemnification was properly filed in the 

Court of Appeals, and that the appellate court should have considered the filing as such. We reverse the order of the Court of 

Appeals which overruled Paul’s “Motion for Attorney Fees.” 

We remand the cause to the Court of Appeals with directions to 

consider Paul’s filing consistent with § 21-2,114 as an application for an order of indemnification against P & L.

Reversed and remanded with directions.