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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

DH-1, LLC, a Nebraska limited liability 

company, et al., appellants, v. City of 

Falls City, Nebraska, appellee.

___ N.W.2d ___

Filed February 14, 2020. No. S-19-039.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Contracts. The interpretation of a contract and whether the contract is 

ambiguous are questions of law subject to independent review.

4. Standing: Jurisdiction. The question whether a party has standing is 

jurisdictional and may be raised at any time.

5. Contracts: Attorney and Client. The construction of contracts between 

attorneys and their clients as to compensation is to be governed by the 

usual rules relating to the construction of agreements generally.

6. Contracts. A contract written in clear and unambiguous language is not 

subject to interpretation or construction and must be enforced according 

to its terms.

7. Contracts: Words and Phrases. A contract is ambiguous when a word, 

phrase, or provision in the contract has, or is susceptible of, at least two 

reasonable but conflicting interpretations or meanings.

8. Contracts. A determination as to whether an ambiguity exists in a 

contract is to be made on an objective basis, not by the subjective 

contentions of the parties; thus, the fact that the parties have suggested 

opposite meanings of a disputed instrument does not necessarily compel 

the conclusion that the instrument is ambiguous.

Nebraska Supreme Court Online Library

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

04/17/2020 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

9. ____. Where a contract is found to be ambiguous, it is construed against 

the drafter.

10. Contracts: Appeal and Error. An appellate court will not rewrite a 

contract to provide terms contrary to those which are expressed. Nor is 

it the province of a court to rewrite a contract to reflect the court’s view 

of a fair bargain.

11. Contracts: Unjust Enrichment: Quantum Meruit. A claim that a 

court should imply a promise or obligation to prevent unjust enrichment 

goes by a number of names—“quasi-contract,” “implied-in-law contract,” or “quantum meruit.”

12. Contracts. An express contract claim supersedes a quasi-contract claim 

arising out of the same transaction to the extent that the contract covers 

the subject matter underlying the requested relief.

13. ____. In the situation where both a contract claim and a quasi-contract 

claim are alleged, a court should address the contract claim first.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.

J.L. Spray and Patricia L. Vannoy, of Mattson Ricketts Law 

Firm, for appellants.

Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.C., for 

appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

This case presents the interpretation of a contingent fee for 

legal services between the City of Falls City, Nebraska (Falls 

City), and two law firms—Houghton Bradford Whitted, PC, 

LLO, and Weaver & Merz, a partnership. The district court 

concluded that no fees were due under the agreement or on the 

firms’ equitable claim and accordingly dismissed the actions. 

The law firms and DH-1, LLC, the organization to which 

the firms had assigned their rights under the fee agreement, 

appealed. We refer to the law firms and DH-1 collectively as 

“the firms.” We affirm.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

BACKGROUND

Underlying Litigation.

This is the third appearance before this court by Falls City in 

relation to the underlying litigation. We set forth the facts of the 

underlying organizations—the Nebraska Municipal Power Pool 

(NMPP), the Municipal Energy Agency of Nebraska (MEAN), 

the National Public Gas Agency (NPGA), the American Public 

Energy Agency (APEA), and the Central Plains Energy Project 

(CPEP)—and the underlying litigation in our first opinion, 

decided in 2010:

NMPP was created in 1975 as a nonprofit corporation 

with the purpose of idea generation, research, analysis, 

administration, and the creation of other entities to carry 

out these activities. NMPP has a 16-member board of 

directors made up of representatives from the participating municipalities. Falls City is a member of NMPP.

The first entity created by NMPP in 1981 was [MEAN] 

. . . . NMPP created MEAN in order to obtain efficient sources of electricity for participating communities. 

[NPGA] was created in 1991 by NMPP in order to secure 

natural gas for the participating municipalities. . . . NPGA 

is governed by a board of directors made up of a representative from each of the NPGA-member municipalities, 

including Falls City. Both MEAN and NPGA require their 

members to also be members of NMPP.

NMPP provides all the strategic planning and staffing 

services for NPGA and MEAN. Other than an executive 

director, who is employed jointly by NPGA and MEAN, 

neither organization has employees. NMPP’s budgeting 

process is administered through a joint operating committee, which consists of representatives from NMPP, 

NPGA, and MEAN. At the beginning of each year, the 

amount of time each NMPP employee will devote to a 

particular organization is estimated and expenses are then 

allocated among the organizations.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

In 1995, NMPP, NPGA, and MEAN created APEA, 

another interlocal agency. APEA was intended to finance 

bonds through which natural gas was purchased. APEA 

remained separate from the joint operating committee 

and had its own staff, but sometimes utilized NMPP staff 

for various projects.

APEA issued bonds and purchased gas through a series 

of “prepays.” A prepay involves the purchase of a large 

supply of natural gas to be delivered in the future. The 

goal is to purchase a large amount of natural gas at a 

lower price than index, or market, price. The bonds used 

to pay for the gas are tax exempt as long as municipal 

entities purchase the gas later. As the gas is delivered and 

paid for by the end user, the proceeds are used to repay 

the principal and interest on the bonds.1

The complaint filed by Falls City against NMPP, CPEP, 

and several individual defendants alleged breach of contract, 

breach of fiduciary duty, and conspiracy to cause injury to 

Falls City and others. As relevant, the district court found 

in favor of Falls City in the amount of $628,267.90. In 

our 2010 opinion, we reversed the district court’s award of 

damages to Falls City on the ground that Falls City lacked 

standing.2 The parties again appeared in 2011, this time with 

respect to the order on costs assessed against Falls City.3

Upon remand, the district court entered an order assessing 22 

percent of the costs to Falls City, which this court affirmed. 

The appeal now before us deals with a fee dispute between 

Falls City and the attorneys representing Falls City in the 

prior litigation.

1 City of Falls City v. Nebraska Mun. Power Pool, 279 Neb. 238, 240-41, 

777 N.W.2d 327, 330-31 (2010).

2 City of Falls City v. Nebraska Mun. Power Pool, supra note 1.

3 City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 

N.W.2d 256 (2011).
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

Fee Agreement.

On November 20, 2006, Falls City and the firms entered 

into the contingency fee agreement now at issue in this appeal. 

As relevant, that agreement provided that Falls City retained 

the firms

for the prosecution of any claims that Falls City may 

have and any claims Falls City may pursue on behalf of 

MEAN, NPGA, NMPP or any of their members including those who might join in the prosecution of these 

claims individually or by virtue of a class action or who 

might benefit from any common fund created, discovered, 

increased, preserved or protected or property to which 

they may have a claim, against any person or entity 

thought to be responsible for damages sustained as a 

result of actions by NMPP, its employees or CPEP.

For this work, the firms were entitled to “$15,000.00 as 

an Initial Fee” and a “contingent fee based upon the following schedule: (a) 40% of all amounts recovered by settlement 

or verdict which is not appealed; or, (b) 50% of all amounts 

recovered in the event of an appeal of a verdict by any party 

involved in the lawsuit.” The agreement indicates that it applied 

to “relief in addition to, or in lieu of, an immediate monetary 

benefit, but which relief has a calculable present value”; “securities, or other non-cash assets”; “or[,] if the settlement of this 

case is made by a structured settlement[,] . . . the present value 

of the settlement.”

While the action filed against NMPP and others proceeded 

in district court, APEA, NPGA, and MEAN entered into an 

agreement on February 26, 2007, which dissolved and restructured APEA and equitably distributed its assets. NPGA and 

MEAN withdrew from APEA, with the withdrawal agreement 

dividing the $23.1 million held by APEA between NPGA 

and MEAN. NPGA received $9.8 million. Though Falls City 

was not a party to the withdrawal agreement, as a member of 

NPGA it received $1,567,570.02. Thereafter, Falls City elected 

to become a direct member of APEA.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

The firms sought payment under the contingency fee agreement, based upon the funds Falls City received pursuant to 

the withdrawal agreement and improved equity positions in 

the various organizations, but Falls City declined to pay. The 

firms then assigned their claims to DH-1, which filed suit on 

January 14, 2015, for the fee under the contingency agreement. Eventually, a second amended complaint was filed which 

joined the firms for purposes of their equitable claims. In total, 

the firms sought $1,487,785.60 consisting of (1) a $627,028 

fee from the APEA distribution, (2) $564,197.60 as a fee for 

Falls City’s interest in the APEA, (3) $40,000 for the increase 

in Falls City’s equity interest in NPGA, and (4) $256,560 for 

the value of the “Agreement for Termination of Participation of 

Members, Distribution of Funds to Members, and for Complete 

Settlement, Mutual Releases and Covenants” entered into 

between MEAN, NPGA, and APEA.

On October 10, 2017, the district court granted Falls City’s 

motion for summary judgment as to the claims under the 

fee agreement, concluding that the contingency under the fee 

agreement was not met and that thus, the firms were not entitled to a fee under the agreement. The district court also held 

that DH-1’s standing was limited to legal rights under the fee 

agreement and that it had “no equitable rights to assert against 

Falls City.” However, the district court granted DH-1’s motion 

to file a second amended complaint. DH-1 did so, adding the 

firms as parties to the litigation.

At a hearing on December 21, 2018, ostensibly held with 

regard to Falls City’s motion to compel, Falls City orally 

moved for summary judgment. The firms waived notice, and 

a hearing was held at which evidence was offered. The district 

court granted the motion for summary judgment and dismissed 

the complaint.

ASSIGNMENTS OF ERROR

The firms assign that the district court erred in dismissing 

both their contract and equitable claims.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

STANDARD OF REVIEW

[1,2] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the 

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

matter of law.4 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.5

[3] The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review.6

ANALYSIS

Statute of Limitations and Standing.

Before reaching the substantive issues presented by this 

appeal, we turn to Falls City’s arguments regarding the statute 

of limitations and standing.

Falls City argues that the district court erred in not ruling that the statute of limitations had run on all of the firms’ 

claims. But Falls City failed to file a cross-appeal on this issue, 

and therefore, such issue is not properly before us, which prevents us from reaching it.7

[4] Falls City’s argument regarding standing is different 

in that the question whether a party has standing is jurisdictional and may be raised at any time.8

 Specifically, Falls City 

argues that the firms have assigned, at least, their legal claims 

to DH-1, which Falls City argues is an unlicensed collection 

4 Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019).

5 Id.

6 Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019).

7 See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).

8 See Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

agency and as a result lacks standing. We disagree. The record 

shows that the firms assigned their claims to DH-1. That 

assignment was not challenged below. As the assignee, DH-1 

is the real party in interest and has standing to bring suit in 

this case.9

We disagree with Falls City’s argument to the contrary.

Recovery Under Fee Agreement.

[5-8] We now turn to the firms’ argument that, contrary to 

the district court’s conclusion, they were entitled to a fee under 

the contingency fee agreement. The construction of contracts 

between attorneys and their clients as to compensation is to 

be governed by the usual rules relating to the construction of 

agreements generally.10 A contract written in clear and unambiguous language is not subject to interpretation or construction and must be enforced according to its terms.11 A contract 

is ambiguous when a word, phrase, or provision in the contract 

has, or is susceptible of, at least two reasonable but conflicting 

interpretations or meanings.12 A determination as to whether 

an ambiguity exists in a contract is to be made on an objective 

basis, not by the subjective contentions of the parties; thus, 

the fact that the parties have suggested opposite meanings of a 

disputed instrument does not necessarily compel the conclusion 

that the instrument is ambiguous.13

[9,10] Where a contract is found to be ambiguous, it is construed against the drafter.14 This court will not rewrite the contract to provide terms contrary to those which are expressed. 

9 See Neb. Rev. Stat. §§ 25-301 and 25-302 (Reissue 2016). See, also, 

Hawley v. Skradski, supra note 8.

10 7A C.J.S. Attorney & Client § 457 (2019).

11 Meyer Natural Foods v. Greater Omaha Packing Co., 302 Neb. 509, 925 

N.W.2d 39 (2019).

12 Id.

13 Id.

14 See Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013).
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

Nor is it the province of a court to rewrite a contract to reflect 

the court’s view of a fair bargain.15

To support their argument that they are entitled to a fee 

under the agreement, the firms note that the fee agreement 

was broad both because it covered the “prosecution of any 

claims that Falls City may have and any claims Falls City 

may pursue” on behalf of a myriad of organizations or members of those organizations and because it included language 

allowing a fee to be recovered on the “receipt of securities, or 

other non-cash assets,” or on the present value of a structured 

settlement.

The firms further contend that the district court erred in 

limiting the terms “prosecution,” “verdict,” and “settlement” 

to the context of formal litigation and that Falls City received 

benefits because of the underlying litigation even though Falls 

City did not ultimately obtain a verdict or settlement with the 

defendants in that litigation.

We find no error in the decision of the district court. Our 

analysis begins with the plain language of the opening paragraph of the parties’ fee agreement. That agreement, which 

was entered into in November 2006, states that the firms 

were retained to pursue claims “against any person or entity 

thought to be responsible for damages sustained as a result 

of actions by NMPP, its employees or CPEP.” In addition to 

setting forth the 40- to 50-percent contingency fee owed in 

the event of recovery, the agreement also notes that the firms 

are entitled to “$15,000.00 as an Initial Fee . . . for the initial 

investigation . . . and drafting of the Complaint.” It also states 

that the firms were employed to “prosecute such claims and 

assign to them a lien against all amounts recovered by settlement or otherwise in connection with this litigation” (emphasis supplied).

When read together, this language plainly envisions the 

agreement’s applying to the litigation as set forth in the 

15 Meyer Natural Foods v. Greater Omaha Packing Co., supra note 11.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

complaint filed against NMPP, CPEP, and others alleging 

breach of contract, breach of fiduciary duty, and conspiracy to 

cause injury to Falls City and others. By contrast, the agreement did not encompass other services the firms might provide 

to Falls City.

The firms assert that the withdrawal agreement is within 

the consideration of the agreement. However, the firms have 

failed to establish what work they completed with regard to 

the withdrawal agreement and how such work would bring the 

withdrawal agreement within the parameters of the agreement’s 

delineated list of claims. Therefore, since no recoverable verdict or settlement occurred from the specified claims set forth 

in the agreement, the contingency has not been met requiring 

the payment of a fee.

There is no merit to the firms’ claim that they were entitled 

to a fee under the agreement.

Recovery Under Equitable Principles.

[11] The firms also assign that the district court erred in 

granting summary judgment in favor of Falls City on its equitable claims. A claim that a court should imply a promise or 

obligation to prevent unjust enrichment goes by a number of 

names—“quasi-contract,” “implied-in-law contract,” or “quantum meruit.”16 Such claims do not arise from an express or 

implied agreement between the parties; rather, they are imposed 

by law “‘when justice and equity require the defendant to disgorge a benefit that he or she has unjustifiably obtained at the 

plaintiff’s expense.’”17

[12] Unjust enrichment or quasi-contract claims are viable 

only in limited circumstances. For example, “‘[t]he terms of an 

enforceable agreement normally displace any claim of unjust 

16 Bloedorn Lumber Co. v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018).

17 Id. at 729, 915 N.W.2d at 792, quoting City of Scottsbluff v. Waste 

Connections of Neb., 282 Neb. 848, 809 N.W.2d 725 (2011).
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305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

enrichment within their reach.’”18 Put another way, an express 

contract claim will supersede a quasi-contract claim arising out 

of the same transaction to the extent that the contract covers 

the subject matter underlying the requested relief.19

[13] Though contract claims supersede unjust enrichment or 

quasi-contract claims, a plaintiff is permitted to allege both.20

We have said that when a plaintiff does so, a court should 

address the contract claim first.21

In this case, there was a contract, the contingency fee agreement, which expressly covered the litigation against NMPP. 

This agreement superseded the equitable claims to the extent of 

that contract. Thus, the issue presented is what work not covered by the fee agreement remains unpaid. There is no dispute 

that the firms would be entitled to compensation for work done 

on matters not covered by the fee agreement.

Additional factual background is helpful to analyzing this 

issue. During the course of this litigation, the parties had 

engaged in discovery. As relevant, Falls City sought information regarding services provided by the firms, including 

“[w]hether the service provided related to the withdrawal 

agreement[, the] membership agreement[,] or some other service the [firms] claim to have provided not covered by the 

contingency fee agreement.” To Falls City’s interrogatory, the 

firms responded as follows:

The firm[s were] retained by [Falls] City to represent 

[Falls] City and its related entities in efforts to protect 

their interests and those of other community members of 

NMPP, MEAN and NPGA in [APEA,] which at the time 

18 City of Scottsbluff v. Waste Connections of Neb., 282 Neb. at 860, 809 

N.W.2d at 740, quoting Restatement (Third) of Restitution and Unjust 

Enrichment § 2, comment c. (2011).

19 Bloedorn Lumber Co. v. Nielson, supra note 16.

20 Id.

21 Id.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

was holding funds in excess of $20 Million and had valuable, proprietary, and profitable business interests. The 

firm[s were] to file a legal action against individuals and 

entities attempting to take APEA’s assets and business. 

There was no “contingency fee agreement” when the 

firm[s were] initially retained by [Falls] City. After the 

firm[s] filed the action and [were] in the midst of discovery, [Falls] City . . . requested that the firm[s] proceed on 

a “contingency fee agreement.” At all times, the scope of 

the engagement covered all efforts exerted by the firm[s] 

for a percentage of all benefits derived from the attorneyclient relationship.

According to various motions to compel filed by Falls 

City, counsel attempted to clarify or get the firms to supplement this answer, but the firms stated they had no further 

answer. Following a hearing, Falls City’s motion to compel 

was granted, with the district court’s order noting:

[Falls City] seek[s] to have [the firms] specify what services were provided or what hours were spent outside the 

contingency fee agreement for which they have not yet 

been compensated (under any other agreement) and for 

which . . . Falls City received a benefit. Whether [the 

firms] can recover under an implied contract or other 

equitable theory of relief depends on whether they can 

show that they performed some services for the benefit of 

[Falls City] such that [Falls City] should be made to pay 

the reasonable value of those services. See Sorenson v. 

Dager, 8 Neb. App. [729], 601 N.W.2d 564 (1999). [The 

firms] have a duty to comply with the discovery requests 

by going through their time records and specifying such 

services. It was not sufficient for [the firms] to simply 

direct [Falls City] to hundreds of time records which have 

already been produced, especially if most of those services were expended in performance of the contingency 

fee agreement.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

DH-1, LLC v. CITY OF FALLS CITY

Cite as 305 Neb. 23

The firms were given 30 days to supplement their answers. 

No supplementation occurred, and Falls City filed another 

motion to compel. That motion was converted, with the agreement of all parties, to Falls City’s motion for summary judgment, which was granted, dismissing the firms’ equitable 

claims.

For Falls City to obtain such relief as the defendant in this 

litigation, Falls City had to show that if this case proceeded to 

trial, the firms’ equitable claims would not have been successful, and that Falls City was entitled to judgment.22 Falls City 

did so by first relying on case law that showed that equitable 

claims based on actions which were covered by the contingency 

fee agreement should be determined under legal principles and 

not under equity. Given this, the only claims remaining could 

be those claims not covered by the contingency agreement. 

Because the firms, in their answers to interrogatories, declined 

to set forth any work they completed on behalf of Falls City 

outside of the contingency fee agreement, Falls City met its 

burden and was entitled to summary judgment.

There is no merit to the firms’ equitable claim.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.

Heavican, C.J., not participating.

22 See Williamson v. Bellevue Med. Ctr., supra note 4.