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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

Crossman & Hosford, appellee, v. Micaela Harb

Personal Representative of the Esta

Jeanne K. Moderow, deceased, appe

___ N.W.2d ___

Filed May 1, 2018. No. A-16-1115.

1. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

3. Debtors and Creditors: Words and Phrases. An “account stated” is an 

agreement between persons who have had previous dealings determining 

the amount due by reason of such transactions.

4. Debtors and Creditors. When parties have accounts against each other, 

and a statement of the account is made out by one party and presented 

to the other, and the latter expressly assents to its correctness, the law 

will regard it as a stated or settled account, and it will be binding on 

both parties.

5. Debtors and Creditors: Proof. The failure to object to an account rendered is admissible in evidence as tending to prove an acknowledgment 

of its correctness. Proof of an express promise to pay is not required.

6. Debtors and Creditors: Time. A party’s retention without objection for 

an unreasonably long time of a statement of account rendered by the 

other party is a manifestation of assent. What constitutes an unreasonably long time is a question of fact to be answered in the light of all 

the circumstances.

Nebraska Supreme Court Online Library

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

05/08/2018 09:09 AM CDT
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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

7. 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, Shell

R. Stratman, Judge, on appeal thereto from the County Cou

for Douglas County, Darryl R. Lowe, Judge. Judgment 

District Court reversed and remanded for further proceedings.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, 

Peebles, Belmont & Line, L.L.P., for appellant.

Donald C. Hosford, Jr., of Crossman & Hosford, for 

appellee.

Riedmann and Bishop, Judges, and Inbody, Judge, Re

Riedmann, Jud

Crossman & Hosford sought recovery for legal services 

performed under an account stated theory. The county court 

for Douglas County granted summary judgment in its favor, 

and the judgment was affirmed by the district court. Finding 

a genuine issue of material fact, we reverse the judgment and 

remand the cause for further proceedings.

FACTUAL BACKGROUND

Donald C. Hosford, Jr., is an attorney in Omaha, Nebraska, 

practicing law under the name “Crossman & Hosford.” 

Hosford alleged that he performed legal services for Jeanne 

K. Moderow for some indeterminate time prior to March 8, 

2012. On March 8, he sent Moderow two billing statements: 

one in the amount of $1,900 for services performed for “JMJM 

Properties, LLC” and one in the amount of $16,675 for work 

performed for “American Marking Company.” The statements 

set out a narrative listing of the services rendered, but did not 

include an itemization of when the work was performed, what 

it specifically included, or the amount charged for each task. 
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25 Nebraska Appellate Repor

CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

Hosford sent followup invoices reflecting the amounts due in 

April, June, and July.

On July 31, 2012, Moderow first responded to Hosford’s 

invoices, via email. She apologized for her delayed response, 

stated she was “taken aback” at the amount of the bill, and 

stated that because it would be difficult to pay “all at once,” 

she would send a check for $500 “in the next couple of 

weeks.” She concluded by thanking him for his patience. As 

promised, Moderow made her first $500 payment on August 

14 and her second $500 payment on December 13. Subsequent 

billings reflected these payments as deductions from the total 

amount due.

Hosford continued to bill Moderow monthly without further 

response until April 2013. On April 17, Moderow sent Hosford 

a letter in an effort to “avoid a ‘trainwreck.’” In that letter, she 

stated, “I have concerns regarding the years it took to bill me 

and the amount of the bill. In fact, if I had known your fees, 

I might have made other arrangements.” Hosford responded, 

via letter, noting her two payments and stating that prior to her 

April 17 letter, she had never informed him of any issue with 

regard to her account. He concluded, stating, “With all due 

respect, such complaint comes at me too late, and after all the 

effort and communication I have put forth with regard to getting this resolved.”

Moderow responded later that month, claiming that she had 

been paying on the first bill for the “JMJM LLC set up.” She 

claimed that the statement concerning “AMC” had her “puzzled.” She explained that the “bill was late (over 5 years) in 

being sent. There are no itemizations or dates and the amount 

is questionable.” She requested “a significant adjustment.” 

Hosford denied her request and continued sending monthly 

statements. Moderow made no additional payments.

PROCEDURAL BACKGROUND

In October 2013, Hosford filed a complaint in the county 

court for Douglas County. He alleged that he had sent a 
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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

statement of account for legal services and costs to Moderow 

and that the account was stated and agreed to between the 

two of them. He further alleged payment of $1,000 by 

Moderow and sought judgment for the remaining $17,575 

plus prejudgment interest. Moderow filed a general denial 

and affirmatively alleged that Hosford’s claim was barred by 

the statute of limitations or the equitable doctrine of laches 

and waiver.

Hosford subsequently filed a motion for summary judgment, which was ultimately granted. Moderow’s appeal to the 

district court was unsuccessful, and she timely appealed to this 

court. During the pendency of the appeal, Moderow passed 

away and the appeal was revived in the name of Micaela 

Harbison, personal representative of Moderow’s estate, pursuant to Neb. Rev. Stat. § 25-1406 (Reissue 2016).

ASSIGNMENTS OF ERROR

Moderow assigns that the district court erred in finding 

no genuine issues of material fact in the claim of an account 

stated. Specifically, she asserts that genuine issues of material fact were present with regard to whether Moderow was 

a proper party and whether Moderow had an understanding 

of that to which she was agreeing. Moderow also assigns 

that the district court erred in finding no genuine issue of 

material fact as to the reasonableness of the attorney fees 

charged and as to whether the claim was barred by the statute 

of limitations.

STANDARD OF REVIEW

[1,2] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law. Walters v. Sporer, 298 Neb. 

536, 905 N.W.2d 70 (2017). In reviewing a summary judgment, an appellate court views the evidence in the light most 
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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

favorable to the party against whom the judgment is granted 

and gives such party the benefit of all reasonable inferences 

deducible from the evidence. Id.

ANALYSIS

[3,4] Hosford filed this action as an account stated. An 

“account stated” is an agreement between persons who have 

had previous dealings determining the amount due by reason of 

such transactions. Sherrets, Smith v. MJ Optical, Inc., 259 Neb. 

424, 610 N.W.2d 413 (2000). The general rule is that when 

parties have accounts against each other, and a statement of the 

account is made out by one party and presented to the other, 

and the latter expressly assents to its correctness, the law will 

regard it as a stated or settled account, and it will be binding 

on both parties. Loy v. Storz Electric Refrigeration Co., 122 

Neb. 357, 240 N.W. 423 (1932).

[5] The initial question, therefore, is whether the billing 

statements of March 8, 2012, and Moderow’s subsequent conduct are sufficient to establish an account stated as a matter of 

law. As the party moving for summary judgment, Hosford had 

the burden to prove a prima facie case of an account stated. 

It is uncontroverted that Moderow did not expressly agree 

to personally pay the amounts contained in the billing statements; however, the failure to object to an account rendered 

is admissible in evidence as tending to prove an acknowledgment of its correctness. Proof of an express promise to pay is 

not required. John Deere Co. of Moline v. Ramacciotti Equip. 

Co., 181 Neb. 273, 147 N.W.2d 765 (1967).

[6] Here, Moderow initially expressed surprise at the 

amount of the bill, but rather than contesting it, she explained 

that she would be unable to pay it “all at once.” Thirteen 

months after having received the billing statements, she first 

expressed “concerns” regarding the amount of the bill. As 

stated in the Restatement (Second) of Contracts § 282 at 386 

(1981), “A party’s retention without objection for an unreasonably long time of a statement of account rendered by the 
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CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

other party is a manifestation of assent.” But what constitutes 

an unreasonably long time is a question of fact to be answered 

in the light of all the circumstances. Id., comment b.

In the present action, Hosford sent two billing statements to 

Moderow. One was identified as work for “JMJM Properties, 

LLC” in the amount of $1,900, and the other identified 

work for “American Marking Company” in the amount of 

$16,675. Neither statement indicates when the work was performed, but based upon the evidence, the work for “American 

Marking Company” took place more than 4 years prior to 

the billing statement being sent. No fee agreement appears 

in the record, and according to Moderow, one never existed. 

Moreover, the parties never had any discussions as to hourly 

fees or the extent of services to be rendered. It took Moderow 

4 months to respond to the initial billing statement, and 

although she did not object to the amount of the bill, she did 

express her surprise at both the amount and the length of time 

it spanned.

Given the circumstances of the case, we cannot say as a 

matter of law that Moderow’s delayed objection should be 

construed as implied assent to the amount claimed by Hosford. 

Although failure to object to an account rendered is admissible in evidence as tending to prove an acknowledgment of 

its correctness, it does not undisputedly prove correctness. And 

the weight or sufficiency of such proof is a question of fact to 

be determined by the fact finder. See Hendrix v. Kirkpatrick, 

48 Neb. 670, 67 N.W. 759 (1896). Recognizing that Hosford 

waited more than 4 years to bill Moderow, the reasonableness 

of Moderow’s 13-month delay in expressly questioning the 

amount of the bill is a question of fact.

[7] Having determined that a fact question exists as to 

whether Moderow agreed to the amount billed, we need not 

address Moderow’s arguments that genuine issues of material 

fact exist as to whether she was a proper party, the reasonableness of the attorney fees, or whether Hosford’s claim 

is barred by the statute of limitations. An appellate court 
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CROSSMAN & HOSFORD v. HARBISON

Cite as 25 Neb. App. 849

is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Amend 

v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 

551 (2018).

CONCLUSION

Because a genuine issue of material fact exists as to whether 

Moderow agreed to the amount Hosford claimed was due, 

summary judgment was inappropriate. We reverse the judgment and remand the cause for further proceedings.

 Reversed and remanded

further proceeding