Black v. Brooks

440 	285 NEBRASKA REPORTS
county zoning statutes on principles of express preemption,
field preemption, or conflict preemption. Therefore, we affirm
the judgment of the district court.
A ffirmed.
C hristy BlACk, Appellee, v.
lornA Brooks, AppellAnt.
827 N.W.2d 256
Filed March 8, 2013. 	No. S-12-176.
1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
2. ____: ____. An appellate court does not reweigh the evidence but considers the
judgment in a light most favorable to the successful party and resolves eviden-
tiary conflicts in favor of the successful party, who is entitled to every reasonable
inference deducible from the evidence.
3. Attorney Fees. In determining a reasonable attorney fee, the court is to consider
the nature of the proceeding, the time and labor required, the novelty and diffi-
culty 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, and the customary charges of the bar for
similar services.
4. Landlord and Tenant: Attorney Fees. The attorney fee provisions of Neb. Rev.
Stat. §§ 76-1416(3) and 76-1425(2) (Reissue 2009) are mandatory.
5. Attorney Fees. The most common purpose behind fee-shifting statutes is to
encourage private litigation to enforce a particular statute or right.
6. ____. Allowing legal services organizations recovery of statutory attorney fees
generally enhances their capabilities to assist those who are financially unable to
obtain private counsel.
7. ____. Insofar as a statutory attorney fee provision is designed to encourage pri-
vate action to vindicate the rights granted by the statutory scheme, an award of
attorney fees to the pro bono organization indirectly serves the same purpose as
an award directly to a fee paying litigant.
8. Landlord and Tenant: Attorney Fees. To limit attorney fee awards under Neb.
Rev. Stat. §§ 76-1416(3) and 76-1425(2) (Reissue 2009) to pro bono attorneys
would be to insert the additional term “incurred” into the statutes.
9. Statutes: Appeal and Error. An appellate court may not add language to the
plain terms of a statute to restrict its meaning.
Appeal from the District Court for Douglas County: leigh
A nn retelsdorf, Judge. Affirmed as modified.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

BLACK v. BROOKS 	441
Cite as 285 Neb. 440
Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., for
appellant.
Catherine Mahern and Martha J. Lemar, of Milton R.
Abrahams Legal Clinic, and Wesley Van Ert, Brett Wessels, and
John Beauvais, Senior Certified Law Students, for appellee.
heAviCAn, C.J., Wright, C onnolly, stephAn, mCC ormACk,
and CAssel, JJ.
mCC ormACk, J.
NATURE OF CASE
The tenant in this case, Christy Black, brought this action
against her landlord, Lorna Brooks, for noncompliance with
the terms of two consecutive lease agreements and for fail-
ure to return her security deposit. Brooks counterclaimed for
damages. After a bench trial, judgment was entered in favor
of Black. The principal issue on appeal is whether statutory
attorney fees can be awarded when the tenant is represented by
attorneys working pro bono.
BACKGROUND
Black rented a house on South 38th Avenue in Omaha,
Nebraska (38th Ave. property), pursuant to a written lease
agreement with Brooks dated December 10, 2004. The lease
was subject to a “Housing Assistance Payments” (HAP) con-
tract with the Omaha Housing Authority. In 2008, a water
break occurred at the house. The parties disagreed as to the
promptness of Brooks’ response to Black’s complaint that the
floors of the house were flooded and mold was “coming up on
the walls.” In any event, because of the damage, Black eventu-
ally moved into another of Brooks’ properties.
On May 7, 2008, Black entered into an agreement with
Brooks to lease a property located on Hoctor Boulevard in
Omaha (Hoctor property). Brooks entered into another HAP
agreement with the Omaha Housing Authority in connection
with the lease of the Hoctor property.
The district court found that Brooks committed willful non-
compliance with both lease agreements, in violation of Neb.

442 	285 NEBRASKA REPORTS
Rev. Stat. § 76-1425(2) (Reissue 2009). For both properties,
Brooks charged Black additional monthly “appliance fees” in
excess of the stated rent amounts in the leases and in violation
of the HAP contractual addendums to the leases. Specifically,
for the 38th Ave. property, Brooks demanded and received a
total overpayment of $5,624.50. And for the Hoctor property,
Brooks demanded and received a total overpayment of $2,050.
Judgment was entered in favor of Black for those amounts.
Brooks does not challenge that judgment in this appeal, and
Brooks does not challenge the court’s finding that Brooks’ non-
compliance was willful.
deposit And C ounterClAim
Brooks instead challenges on appeal the district court’s judg-
ment in favor of Black for the return of a security deposit in
the amount of $647. Relatedly, Brooks asserts that the district
court erred in dismissing, after trial, her counterclaim for dam-
ages to the 38th Ave. property.
The deposit was originally made in connection with the
lease of the 38th Ave. property. Under the terms of the 38th
Ave. property lease, release of the security deposit was sub-
ject to vacating the premises with no damage beyond normal
wear and tear. The lease stated that Brooks agreed to return
the security deposit to Black when she vacated, less any
deduction for any of the costs, within 14 days after written
demand was made. Further, if deductions were made from the
deposit, Brooks would give Black a written statement of any
costs for damages and/or other charges to be deducted from
the security deposit. The language of the lease agreement
largely mirrors Neb. Rev. Stat. § 76-1416(2) (Reissue 2009),
which states:
Upon termination of the tenancy, property or money
held by the landlord as prepaid rent and security may be
applied to the payment of rent and the amount of dam-
ages which the landlord has suffered by reason of the ten-
ant’s noncompliance with the rental agreement or section
76-1421. The balance, if any, and a written itemization
shall be delivered or mailed to the tenant within fourteen

BLACK v. BROOKS 	443
Cite as 285 Neb. 440
days after demand and designation of the location where
payment may be made or mailed.
The corresponding HAP contractual addendum did not specify
that a demand by the tenant was required, but stated simply
that “[w]hen the family moves out . . . , the owner . . . may
use the security deposit . . . as reimbursement for any unpaid
rent payable by the tenant, any damages to the unit or any
other amounts that the tenant owes under the lease.” But
“[t]he owner must give the tenant a list of all items charged
against the security deposit, and the amount of each item. After
deducting the amount, if any, used to reimburse the owner, the
owner must promptly refund the full amount of the unused bal-
ance to the tenant.” The HAP contractual addendum provided
that in case of any conflict between the provisions of the HAP
contract and the provisions of the lease or any other agree-
ment between the owner and the tenant, the requirement of the
addendum shall control.
Brooks admitted that she refused to return any portion of
the $647 deposit for the 38th Ave. property. Brooks claimed
Black damaged the property beyond the deposit amount. The
testimony relating to the alleged damages will be set forth in
more detail in our analysis below. Brooks also testified that
Black never demanded that deposit from her. Black admitted
that she never specifically requested an itemized list of alleged
damages to the 38th Ave. property. On August 14, 2009, Black
mailed a demand letter to Brooks requesting that Brooks return
the $647 deposit. But that letter apparently referred to the
deposit having been rolled over into a deposit for the Hoctor
property and sought a return of the deposit for the Hoctor
property, not the 38th Ave. property. The letter itself is not
in evidence.
In her complaint filed on October 15, 2009, Black alleged
that the unreturned $647 security deposit for the 38th Ave.
property was applied as a security deposit for the Hoctor prop-
erty. She demanded return of the deposit.
At trial, Black’s testimony regarding the unwritten agree-
ment to roll over the $647 deposit into a deposit for the

444 	285 NEBRASKA REPORTS
Hoctor property was successfully objected to as parol evidence.
Brooks testified that the lease agreement for the Hoctor prop-
erty simply did not provide for a deposit. And Brooks testi-
fied that Black, accordingly, simply did not pay a deposit for
that property.
The record reflects that on August 13, 2008, Brooks sent
Black a “Notice to Cure or Quit” in which she stated that
Black was delinquent in her appliance fee payments, as well
as an unpaid deposit of $774. The Omaha Housing Authority
had two versions of the Hoctor property lease in its file, and
both were received into evidence. The leases were identi-
cal, except one acknowledged receipt of a security deposit
of $774 and the other indicates no amount under the security
deposit section.
At trial, Brooks argued that Black never demanded the
deposit back from the 38th Ave. property because of the pur-
ported damage to that property. Black never paid a deposit for
the Hoctor property, so there was nothing to return with respect
to that lease. Brooks alternatively argued that Black’s demand
for the return of the $647 was deficient because Black asked
for the deposit back from the Hoctor property and not the 38th
Ave. property.
The court found Brooks’ evidence of alleged damages relat-
ing to the 38th Ave. property was “not convincing or credible.”
The court found that the security deposit from the 38th Ave.
property was rolled over to serve as security against damage
to the Hoctor property. Regardless, the court concluded that
Black had made legal demand for the $647 and that Brooks
was legally required to return it.
Attorney fees
The district court awarded Black $6,930 in attorney fees
pursuant to §§ 76-1416(3) and 76-1425(2). Section 76-1416(3)
states that “[i]f the landlord fails to comply with subsection
(2) of this section, the tenant may recover the property and
money due him or her and reasonable attorney’s fees.” Section
76-1425(2) states:
Except as provided in the Uniform Residential Landlord
and Tenant Act, the tenant may recover damages and

BLACK v. BROOKS 	445
Cite as 285 Neb. 440
obtain injunctive relief for any noncompliance by the
landlord with the rental agreement or section 76-1419.
If the landlord’s noncompliance is willful the tenant may
recover reasonable attorney’s fees. If the landlord’s non-
compliance is caused by conditions or circumstances
beyond his or her control, the tenant may not recover
consequential damages, but retains remedies provided in
section 76-1427.
Black was represented by senior certified law students operat-
ing under the supervision of an attorney who is the director
of the general civil practice clinic at Creighton University
School of Law and is admitted to practice law in the State of
Nebraska. The attorney submitted an itemized list of the time
spent on Black’s case and affidavits concerning the value of
that time.
Brooks argued that attorney fees could not be recovered,
because Black’s attorneys were representing Black pro bono.
Brooks argued that Black had no legal obligation to pay the
attorney fees claimed and that any award of attorney fees
would be punitive damages.
The court disagreed. The court reasoned that §§ 76-1416(3)
and 76-1425(2) served to encourage claims against landlords
who willfully disregard their obligations. The award of statu-
tory fees, the court reasoned, is for the benefit of society at
large, as well as for the originally named plaintiff. The court
applied the standards set forth in Coral Prod. Corp. v. Central
Resources1 for the determination of proper and reasonable fees
in Black’s case.
ASSIGNMENTS OF ERROR
Brooks assigns that the district court erred in granting judg-
ment in favor of Black in the amount of $647, the amount of
the security deposit, and in awarding attorney fees and costs
pursuant to §§ 76-1416(3) and 76-1425(2). She also assigns
that the district court erred in finding that she failed to meet her
burden under her counterclaim for damages.
1 Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d 357
(2007).

446 	285 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] In a bench trial of a law action, the trial court’s factual
findings have the effect of a jury verdict and will not be dis-
turbed on appeal unless clearly wrong.2
[2] An appellate court does not reweigh the evidence but
considers the judgment in a light most favorable to the suc-
cessful party and resolves evidentiary conflicts in favor of the
successful party, who is entitled to every reasonable inference
deducible from the evidence.3
ANALYSIS
evidenCe of dAmAges
Brooks first argues that the evidence at trial established that
she incurred damages in excess of wear and tear of the 38th
Ave. property for the following items: $695 in trash removal,
$353.50 in pest control, $50.92 for a screen door, and more
trash removal at $250, for a total of $1,349.42. Thus, Brooks
argues the court erred in finding no merit to her counterclaim
and in ordering the refund of Black’s $647 deposit.
Brooks testified that when Black vacated the 38th Ave.
property, it was dirty and Black had left a large horse tank in
the backyard. Brooks testified that she paid $695 and, later,
an additional $250 to haul away trash and other items left
behind by Black. Brooks testified that in September 2008,
before the next tenant moved in, she paid $353.50 for pest
control to get rid of roaches Brooks alleged was the result
of Black’s leaving trash in the property. The receipt for the
pest control entered into evidence, however, showed a total
of only $53.50. Brooks testified that she had to replace a
screen door, at a cost of $50.92, and a receipt dated August
8, 2008, reflects that expenditure. Various other receipts for
repairs and work done at the 38th Ave. property were received
into evidence.
The court expressed concern that many of the items reflected
in the receipts, including the trash removal, were due to the
2 Albert v. Heritage Admin. Servs., 277 Neb 404, 763 N.W.2d 373 (2009).
3 See Hilliard v. Robertson, 253 Neb. 232, 570 N.W.2d 180 (1997).

BLACK v. BROOKS 	447
Cite as 285 Neb. 440
cleanup of the water damage and not due to any alleged
damage caused by Black. Brooks entered into evidence two
move-out inspection lists that the court likewise viewed with
skepticism. The inspection lists were allegedly filled out dur-
ing an exit walk-through conducted by Brooks’ granddaughter
with Black. The documents have two columns. The left side
was for the move-in inspection, and the right side was for the
move-out inspection. The damages to the 38th Ave. property
were written on both the move-in and move-out sides of the
documents. One list shows the alleged signatures of both Black
and Brooks’ granddaughter, under the side labeled “Move-In
Inspection Results Hereby Accepted.” There are no signatures
under “Move-Out Inspection Results Hereby Accepted.” There
are no signatures on the second list. The signed list is dated
June 28, 2008, which is when Brooks’ granddaughter claimed
the exit walk-through took place, and she testified that all of
the items written on the list reflected damages she personally
observed on June 28.
Black denied ever participating in an exit walk-through for
the 38th Ave. property. In fact, Black had moved out of the
38th Ave. property approximately 2 months before the alleged
exit walk-through. Black denied having ever seen the walk-
through lists before the filing of her action. Black testified that
she never received any receipt from Brooks for any damages
for the 38th Ave. property.
Black generally denied all of the alleged damages to the
38th Ave. property. She admitted to leaving a “NASCAR
board” in a bedroom. She also admitted that she left Christmas
lights on the gutter. Black explained that she was in a hurry to
move out because she was concerned about the mold. Black
specifically denied that any doors were damaged or that she
left any trash behind. Black testified that she left the property
as clean as she could in light of the flooding. Black’s attor-
ney pointed out that, according to the receipts entered into
evidence by Brooks, almost all of the damage listed in the
inspection documents proffered by Brooks would have been
repaired or remedied well before the alleged June 28, 2008,
walk-through.

448 	285 NEBRASKA REPORTS
The record thus reflects conflicting evidence pertaining to
the alleged damage to the 38th Ave. property. We do not
reweigh the evidence but consider the judgment in a light most
favorable to the successful party and resolve evidentiary con-
flicts in favor of the successful party, who is entitled to every
reasonable inference deducible from the evidence.4 In a bench
trial of a law action, the trial court’s factual findings have the
effect of a jury verdict and will not be disturbed on appeal
unless clearly wrong.5 Resolving the evidentiary conflicts in
favor of Black, we find that the district court was not clearly
wrong in concluding that the damage claimed by Brooks was
not attributable to Black.
suffiCienCy of demAnd of deposit
Brooks argues that regardless of whether Black caused any
damage to the 38th Ave. property, the court erred in order-
ing the return of the $647 deposit for that property. Brooks
explains that Black failed to properly demand its return and
that, therefore, Brooks’ obligations under § 76-1416(2) were
not triggered.
Brooks emphasizes that § 76-1416(2) states a landlord’s duty
to return a deposit is contingent upon a “demand and designa-
tion of the location where payment may be made or mailed”
and that the statute refers to such demand being “[u]pon
termination of the tenancy.” In her brief, Brooks defines the
terms “tenant,” “tenancy,” “estate of a tenant,” “term or inter-
est of a tenant,” and “general tenancy.”6 The significance of
these phrases and definitions as concerns Brooks’ argument
is somewhat unclear. In sum, Brooks argues that Black asked
for her deposit back only for the Hoctor property tenancy, and
not for the 38th Ave. property tenancy. And since Black did
not pay a deposit for the Hoctor property tenancy, but paid a
deposit only for the 38th Ave. property tenancy, Black never
properly demanded the return of her deposit.
4 See id.
5 Albert v. Heritage Admin. Servs., supra note 2.
6 See brief for appellant at 9.

BLACK v. BROOKS 	449
Cite as 285 Neb. 440
In Hilliard v. Robertson,7 we held that the 14-day limita-
tion language of § 76-1416(2) refers to the time allowed for
the landlord to return the deposit, not the time in which a
demand must be made by the vacating tenant. We held that
the tenant’s filing of a counterclaim to the landlord’s suit was
sufficient to trigger the landlord’s obligation to refund the
security deposit.
In this case, Black filed suit demanding the return of her
$647 deposit. Regardless of which property Black believed
the deposit pertained to, the demand was sufficiently clear.
Brooks was on notice as to what she needed to show in order
to justify keeping any of the deposit. In fact, as described
above, Brooks attempted to show damage to the 38th Ave.
property in order to keep the $647 deposit. We agree with the
district court that nothing in the language of § 76-1416(2) pre-
cludes a judgment ordering that the $647 deposit be returned
to Black.
Attorney fees
Finally, Brooks argues that the district court erred in award-
ing attorney fees, because Black was represented pro bono.
Section 76-1416(3) states that “[i]f the landlord fails to comply
with subsection (2) of this section, the tenant may recover the
property and money due him or her and reasonable attorney’s
fees.” Section 76-1425(2) similarly states in relevant part that
“[i]f the landlord’s noncompliance is willful the tenant may
recover reasonable attorney’s fees.”
We have never directly addressed whether pro bono work
can qualify as “reasonable attorney’s fees” under these provi-
sions. But this is not the first time attorney fees have been
awarded for pro bono work in Nebraska.8 Furthermore, com-
ment 4 of § 3-506.1 of the Nebraska Rules of Professional
Conduct contemplates that attorneys working pro bono will be
awarded statutory attorney fees. The comment explains that in
7 Hilliard v. Robertson, supra note 3.
8 See, e.g., Ray v. Thirty LLC, No. A-08-1020, 2009 WL 1819288 (Neb.
App. June 23, 2009) (selected for posting to court Web site).

450 	285 NEBRASKA REPORTS
order for work to be considered pro bono, the attorney’s serv-
ice must be provided without any fee or any expectation of a
fee.9 However, an attorney working pro bono can ultimately
accept an award of statutory attorney fees without disqualify-
ing the services as pro bono.10
The comment notes that a pro bono attorney receiving
an attorney fee award is encouraged to contribute such fees
to organizations or projects that benefit persons of limited
means.11 The comment does not specifically address legal
services organizations, but it stands to reason that if the legal
services are provided by an organization dedicated to benefit-
ing persons of limited means, then it would be proper for that
organization to keep the statutory attorney fees in order to con-
tinue providing such services.
[3] Our law is clear that the amount of statutory attorney
fees is not directly tied to the amount due under a fee agree-
ment. Instead, the district court must determine the “reason-
able attorney’s fees.” In making this determination, the court
is to consider the nature of the proceeding, 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, and the customary
charges of the bar for similar services.12
[4] There are strong public policy reasons for statutory
attorney fee awards in actions under Nebraska’s Uniform
Residential Landlord and Tenant Act.13 In Lomack v. Kohl-
Watts,14 the Nebraska Court of Appeals explained that the
attorney fee provisions of §§ 76-1416(3) and 76-1425(2) are
mandatory. They are a matter of right, with broad discretion
9 See Neb. Ct. R. Prof. Cond. § 3-506.1, comment 4.
10 See id.
11 Id.
12 Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792
(2005).
13 Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2009).
14 See Lomack v. Kohl-Watts, 13 Neb. App. 14, 688 N.W.2d 365 (2004).

BLACK v. BROOKS 	451
Cite as 285 Neb. 440
upon the judge only to determine their amount.15 The court
observed that the fee itself cannot be discretionary because,
if it were, the full penalty would not be recovered and the
purposes behind the attorney fee provision would be under-
mined.16 Other courts have observed that the aggregate effect
of individual tenant suits is the enforcement of important pub-
lic rights.17
The Court of Appeals explained that the tenant need only
present some evidence to the trial court upon which the court
can make a meaningful award.18 We have generally said that if
an attorney seeks a statutory attorney fee, that attorney should
introduce at least an affidavit showing a list of the services
rendered, the time spent, and the charges made.19 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.
Brooks points out that most courts do not allow recovery
of statutory attorney fees by persons appearing pro se. This is
because courts generally consider some attorney-client rela-
tionships an essential factor to the propriety of an attorney
fee award.20 But that relationship need not be bound by a
fee agreement.
Courts typically allow statutory attorney fee awards when
the litigant is represented by an attorney working pro bono.
Numerous courts have held under a variety of statutory attorney
fee provisions—including landlord-tenant laws—that unless a
15 Id.
16 See id. (citing Beckett v. Olson, 75 Or. App. 610, 707 P.2d 635 (1985)).
17 See, Freeman v. Alamo Management Co., 221 Conn. 674, 607 A.2d 370
(1992); McReady v. Dept. of Consumer & Reg. Aff., 618 A.2d 609 (D.C.
1992); Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W.2d 506 (1983).
18 Lomack v. Kohl-Watts, supra note 14.
19 Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). See, also,
Lomack v. Kohl-Watts, supra note 14.
20 See, Hairston v. R & R Apartments, 510 F.2d 1090 (7th Cir. 1975);
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). See, also, Lisa
v. Strom, 183 Ariz. 415, 904 P.2d 1239 (Ariz. App. 1995).

452 	285 NEBRASKA REPORTS
statute expressly prohibits its fee awards to pro bono attorneys,
the fact that representation is pro bono is never justification for
denial of fees.21 In fact, we have not found a case in which a
court has denied statutory attorney fees because the litigant’s
attorney worked pro bono.
[5] The most common purpose behind fee-shifting statutes
is to encourage private litigation to enforce a particular stat-
ute or right.22 Attorney fee statutes are also intended to deter
improper conduct and encourage parties to comply with the
law.23 By encouraging private action, attorney fee provisions
encourage compliance with and enforcement of laws serving
the public interest or protecting the disadvantaged.24 “[A] real-
ization that the opposing party, although poor, has access to
an attorney and that an attorney’s fee may be awarded deters
noncompliance with the law and encourages settlements.”25
21 See, Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891
(1984); Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976); Sellers v. Wollman,
510 F.2d 119 (5th Cir. 1975); Brandenburger v. Thompson, supra note
20; Folsom v. Butte County Ass’n of Governments, 32 Cal. 3d 668, 652
P.2d 437, 186 Cal. Rptr. 589 (1982); In re Marriage of Swink, 807 P.2d
1245 (Colo. App. 1991); Benavides v. Benavides, 11 Conn. App. 150,
526 A.2d 536 (1987); Lee v. Green, 574 A.2d 857 (Del. 1990); Martin
v. Tate, 492 A.2d 270 (D.C. 1985); Butler v. Butler, 376 So. 2d 287 (Fla.
App. 1979); Wiginton v. Pacific Credit Corp., 2 Haw. App. 435, 634 P.2d
111 (1981); In re Marriage of Brockett, 130 Ill. App. 3d 499, 474 N.E.2d
754, 85 Ill. Dec. 794 (1984); Hale v. Hale, 772 S.W.2d 628 (Ky. 1989);
Henriquez v. Henriquez, 413 Md. 287, 992 A.2d 446 (2010); Linthicum v.
Archambault, 379 Mass. 381, 398 N.E.2d 482 (1979), abrogated on other
grounds, Knapp Shoes, Inc. v. Sylvania Shoe Manufacturing Corporation,
418 Mass. 737, 640 N.E.2d 1101 (1994); In re Marriage of Gaddis, 632
S.W.2d 326 (Mo. App. 1982); Ferrigno v. Ferrigno, 115 N.J. Super. 283,
279 A.2d 141 (1971); Lewis v. Romans, 70 Ohio App. 2d 7, 433 N.E.2d
622 (1980); Council House, Inc. v. Hawk, 136 Wash. App. 153, 147 P.3d
1305 (2006); Shands v. Castrovinci, supra note 17; 20 C.J.S. Costs § 138
(2007).
22 3 Stein on Personal Injury Damages § 17:55 (3d ed. 1997).
23 Id.
24 See, Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980); Hairston v. R & R
Apartments, supra note 20.
25 Benavides v. Benavides, supra note 21, 11 Conn. App. at 155, 526 A.2d at
538.

BLACK v. BROOKS 	453
Cite as 285 Neb. 440
These goals are effectively furthered only when the statu-
tory attorney fees are awarded for fee-based and pro bono
work alike.
[6] Allowing legal services organizations recovery of statu-
tory attorney fees also generally enhances their capabilities to
assist those who are financially unable to obtain private coun-
sel.26 Courts have observed that rules of professional conduct
place great emphasis on encouraging lawyers to provide pro
bono services. Allowing statutory attorney fees for pro bono
work increases the resources of legal services providers and
increases their ability to represent indigent individuals, thus
furthering this important public policy.27
[7] More specifically to the statutory scheme that provides
for the attorney fees, if fees are not awarded for pro bono
work, then the burden of costs is placed on the organization
providing the services, and the organization correspondingly
may decline to bring such suits and decide to concentrate its
limited resources elsewhere.28 This would “indirectly cripple[]”
the legislative intent of the statute to encourage its forceful
application.29 Insofar as a statutory attorney fee provision is
designed to encourage private action to vindicate the rights
granted by the statutory scheme, an award of attorney fees to
the pro bono organization indirectly serves the same purpose as
an award directly to a fee-paying litigant.30 On the other hand,
denying attorney fees for pro bono work would undermine
the Legislature’s intent and the policies behind the attorney
fee provision.
[8,9] The statutory provisions in issue here state that “the
tenant may recover reasonable attorney’s fees.”31 The court
26 See, Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977); Hairston v. R & R
Apartments, supra note 20; Lee v. Green, supra note 21.
27 See Henriquez v. Henriquez, supra note 21.
28 Hairston v. R & R Apartments, supra note 20.
29 Id. at 1092.
30 Brandenburger v. Thompson, supra note 20. See, also, Hairston v. R & R
Apartments, supra note 20.
31 § 76-1425(2). See, also, § 76-1416(3).

454 	285 NEBRASKA REPORTS
in Henriquez v. Henriquez32 observed that while Black’s Law
Dictionary may define “‘attorney’s fee’” as “‘the charge to
a client,’” Ballentine’s Law Dictionary defines “‘attorney’s
fee’” as “‘[a]n allowance made by the court.’” Furthermore,
the statute in Henriquez limited attorney fees to those which
were “‘just and proper under all the circumstances,’”33 which
is similar to the “reasonable” limitation found here. The court
said that such modifiers of the term “attorney’s fees” belie
any argument that the statutory attorney fee depends on a
billing obligation.34 The court concluded that to limit attor-
ney fee awards to pro bono attorneys would be to insert the
additional term “‘incurred’” into the statute.35 We find that the
same would be true of the statutory attorney fee provisions of
§§ 76-1416(3) and 76-1425(2). Our court has said many times
that we may not add language to the plain terms of a statute to
restrict its meaning.36
Courts have said that it would be unreasonable to allow
the losing party to reap the benefits of free representation to
the other party.37 As stated in Lewis v. Romans,38 there is no
reason why a landlord should benefit “from the fortuitous cir-
cumstance of a tenant’s penury.” And where the legal services
entity is publicly funded, if statutory attorney fees were denied,
then the taxpayer instead of the landlord would pay the costs of
the tenant’s action. This would be especially repugnant to the
purposes of the fee-shifting statutes.39
Brooks argues, however, that the attorney fee award in this
case would result in a windfall to Black, because there is no
32 See Henriquez v. Henriquez, supra note 21, 413 Md. at 300, 992 A.2d at
454 (emphasis omitted).
33 Id. at 298, 992 A.2d at 453.
34 See, generally, Henriquez v. Henriquez, supra note 21.
35 Id. at 299, 992 A.2d at 454.
36 See, e.g., FirsTier Bank v. Triplett, 242 Neb. 614, 497 N.W.2d 339 (1993).
37 Benavides v. Benavides, supra note 21.
38 Lewis v. Romans, supra note 21, 70 Ohio App. 2d at 9, 433 N.E.2d at 623.
39 See, Benavides v. Benavides, supra note 21; Ferrigno v. Ferrigno, supra
note 21.

BLACK v. BROOKS 	455
Cite as 285 Neb. 440
written agreement obligating Black to pay the award over to
the Creighton Legal Clinic. Brooks argues that Black would
receive more than her actual damages and costs and that the
judgment would constitute punitive damages, in violation of
the Nebraska Constitution.40 A number of courts have directly
addressed the potential windfall to a litigant who has no writ-
ten obligation to pay over a statutory attorney fee to his or her
attorney. Those courts hold that the remedy is not to deny the
attorney fee award altogether. Instead, the remedy is to award
the statutory attorney fee directly to the entity providing pro
bono legal services.41
While a determination of an award should not turn on the
question of whether the litigant was actually required to pay an
attorney, in the interest of justice, it likewise should not result
in a windfall to the litigant.42 Direct awards to pro bono orga-
nizations have been held to be proper despite the general rule
that attorney fees belong to the litigant and not to the attorney43
and despite statutory language authorizing the fee award to
the “prevailing party” or similar.44 While most courts find it
self-evident that such a direct award is within the power of the
courts, one court has explained that this power derives from the
court’s powers to give effect to the jurisdiction of the court and
to enforce its judgments, orders, or decrees.45
We hold that because there is no dispute that Brooks acted
willfully, the district court did not err in awarding attorney
fees. And Brooks does not dispute that the amount ordered
was “reasonable.” However, in order to prevent a windfall to
40 See, e.g., Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960).
41 See, Dennis v. Chang, supra note 24; Hairston v. R & R Apartments, supra
note 20; Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir.
1970); In re Stoltz, 392 B.R. 87 (D. Vt. 2001); Benavides v. Benavides,
supra note 21; Lee v. Green, supra note 21; Shands v. Castrovinci, supra
note 17.
42 See In re Stoltz, supra note 41.
43 Griffin v. Vandersnick, 210 Neb. 590, 316 N.W.2d 299 (1982).
44 See, 1 Robert L. Rossi, Attorneys’ Fees § 6:12 (3d ed. 2012); Dennis v.
Chang, supra note 24.
45 Lewis v. Romans, supra note 21.

456 	285 NEBRASKA REPORTS
Black, we follow the reasoning of those courts that order the
attorney fees be awarded directly to the legal services pro-
vider. We remand with directions for the attorney fees awarded
by the district court to be awarded directly to the Creighton
Legal Clinic.
CONCLUSION
We affirm the judgment in favor of Black in all respects, but
modify the designee of the attorney fee award. We direct the
district court to amend its order so as to award the attorney fees
directly to the Creighton Legal Clinic.
A ffirmed As modified.
miller-lermAn, J., participating on briefs.
stAte of neBrAskA, Appellee, v.
thomAs p. merChAnt, AppellAnt.
827 N.W.2d 473
Filed March 8, 2013. 	No. S-12-191.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
5. Expert Witnesses: Evidence. Expert testimony is relevant and admissible only
if it tends to help the trier of fact understand the evidence or to determine a fact
issue, and expert testimony concerning the status of the law does not tend to
accomplish either of these goals.
6. ____: ____. Expert testimony concerning a question of law is generally not
admissible in evidence.
7. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.