McCord & Burns Law Firm v. Piuze

mCC ord & burnS laW fIrm , llp, appellee , v .
mIChael J. pIuze and mIChael J. pIuze , p.C.,
doIng buSIneSS aS laW offICeS of
mIChael J. pIuze , appellantS.
752 N.W.2d 580
Filed July 18, 2008. 	No. S-07-813.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence 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. Contracts. The interpretation of a contract involves a question of law.
4. Appeal and Error. When reviewing questions of law, an appellate court resolves
the questions independently of the conclusions reached by the trial court.
5. Contracts. Instruments made in reference to and as part of the same transaction are
to be considered and construed together.
6. Contracts: Intent: Appeal and Error. An appellate court construes a contract to
give effect to the parties’ intentions at the time the writing was made.
Appeal from the District Court for Lancaster County: J ohn a.
C olborn, Judge. Reversed.
Robert W. Mullin, of Lieben, Whitted, Houghton, Slowiaczek
& Cavanagh, P.C., L.L.O., for appellants.
Jeffry 	D. 	Patterson, 	of 	Bartle 	& 	Geier 	Law 	Firm, 	for
appellee.
heavICan, C.J., W rIght, C onnolly, gerrard, mCC ormaCk,
and mIller -lerman, JJ.
C onnolly, J.
This appeal presents a fee dispute between two lawyers. One
claims that he is owed fees earned in appealing their client’s
underlying case. The other claims the fee-division agreement
was limited to fees relating to trial work and did not include
appellate fees.
MCCORD & BURNS LAW FIRM v. PIUzE 	163
Cite as 276 Neb. 163
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

SUMMARy
Penny Shipler hired Dan L. McCord, acting on behalf of
McCord & Burns Law Firm, LLP (collectively McCord), to
prosecute a case against General Motors Corporation (GM).
Shipler sought damages for injuries she received in a vehicle
rollover accident. Upon McCord’s recommendation, Shipler also
retained Michael J. Piuze, a California attorney with experience
prosecuting rollover cases against vehicle manufacturers. Piuze
and McCord agreed they would divide attorney fees, with 75
percent to Piuze and 25 percent to McCord.
Following a jury trial and appeal, Shipler settled with GM.
After Piuze deducted the attorney fees from the settlement
amount, he sent McCord what Piuze believed was McCord’s
share of the fees. The amount Piuze sent McCord represented
25 percent of the fees relating to the trial phase of the case;
it did not include a portion of the fees Piuze received for his
work on the appeal. In not sharing the fees relating to the
appeal, Piuze relied on a letter he sent McCord stating that the
fee-division agreement did not pertain to fees for an appeal
or retrial.
McCord disputed the division. He argued that he was also
entitled to 25 percent of the fees relating to the appeal. McCord
sued Piuze. McCord alleged that Piuze breached the parties’ fee-
division agreement. The district court entered summary judg-
ment for McCord and awarded him 25 percent of the fees relat-
ing to the appeal, and prejudgment interest.
We reverse because we conclude that the fee-division agree-
ment did not include appellate fees and therefore Piuze did not
breach the agreement.
BACkGROUND
In September 1997, Shipler, a passenger, was severely injured
in a single-vehicle rollover accident. kenneth Long, the driver
of the Chevrolet S-10 Blazer, lost control of the vehicle, causing
it to roll several times. Shipler hired McCord to sue Long and
GM, the manufacturer of the Blazer, for damages relating to the
injuries she sustained in the accident. McCord contacted other
lawyers who had experience and expertise in actions against
motor vehicle manufacturers for rollover accidents. Piuze was
164 	276 NEBRASkA REPORTS

one of the lawyers McCord contacted. McCord recommended
to Shipler that she retain Piuze. After meeting with Shipler and
McCord, Piuze agreed to represent Shipler in her suit against
GM and Long.
Piuze sent McCord a letter dated April 4, 2000 (Referral
Letter). The Referral Letter stated in relevant part:
This letter will confirm our agreement regarding the
division of attorney’s fees, costs, and responsibilities. your
law firm will receive 25% of the attorney’s fees, except in
medical malpractice cases where the attorney’s fees will
be 10%.
My office will be solely responsible for advancing costs
and for prosecuting the action. Neither my retainer agree-
ment with . . . Shipler nor this agreement pertains to fees
for an appeal or a retrial, if they become necessary.
This agreement regarding a division of fees, costs,
and responsibilities shall apply to all future cases that
your firm refers to my office unless a contrary agreement
is reached.
(Emphasis supplied.) McCord signed the bottom of the Referral
Letter and returned it to Piuze in June.
When Piuze sent McCord the Referral Letter, he enclosed
other documents, including a “Retainer Agreement” (Retainer)
and a “Referral Attorney Authorization” (Authorization).
The Retainer stated that Shipler retained Piuze to prosecute
her claims against GM and Long. The Retainer also provided
that Piuze would receive 40 percent of Shipler’s gross recovery
for compensatory damages. More important, the Retainer stated,
“Fees for services on appeal, if any, . . . will be subject to a spe-
cial agreement to be negotiated between [Shipler] and [Piuze].”
Shipler signed the Retainer on April 16, 2000. Although he was
not required to do so, McCord signed the Retainer on May 9.
Piuze signed the Retainer on May 17.
Shipler signed the Authorization the same day she signed the
Retainer. The Authorization stated that she agreed that Piuze
would represent her in her claim against GM and Long. It further
provided that she agreed “any fee collected for legal services in
regard to [her] claim” would be divided with 75 percent going
to Piuze and 25 percent going to McCord. (Emphasis supplied.)
MCCORD & BURNS LAW FIRM v. PIUzE 	165
Cite as 276 Neb. 163

McCord signed the Authorization on May 9, 2000, and Piuze
signed on May 17.
In September 2003, a jury returned a verdict for Shipler, and
the court entered a judgment for $18,583,900. After GM and
Long filed appeals, Shipler signed a “Supplemental Retainer
Agreement” (Supplemental Retainer). The Supplemental Retainer
stated that Shipler retained Piuze to handle the appeal. The
Supplemental Retainer further provided, “I agree that [Piuze]
shall receive for such professional services an additional ten (10)
percent of the amount recovered following the appeal. I under-
stand that the total attorney’s fees on the amount recovered will
be fifty percent (50%).”
In March 2006, we affirmed the district court’s judgment in
Shipler’s action against GM and Long.1 After GM moved for
rehearing, GM and Shipler entered a settlement agreement pro-
viding that GM would pay Shipler a confidential amount and
would withdraw its motion for rehearing.
GM delivered a check for the settlement amount to McCord.
McCord and Shipler endorsed the check and sent it to Piuze.
After Piuze deducted case expenses, he took 50 percent of the
net settlement amount. The 50 percent represented the 40 per-
cent identified in the Retainer for trial work and the 10 percent
allocated in the Supplemental Retainer for appellate work. Piuze
wired funds to McCord’s bank account to satisfy McCord’s por-
tion of the attorney fees. Although Piuze collected 50 percent
of the net settlement amount as attorney fees, he did not send
McCord 25 percent of those collected fees. Instead, Piuze sent
McCord 25 percent of the 40 percent collected for the trial work.
That is, Piuze did not send McCord 25 percent of the 10 percent
he collected for the work on appeal.
McCord sued Piuze, alleging that Piuze breached the fee-
division agreement. In deciding McCord’s motion for summary
judgment, the district court stated that the issue was whether
the Referral Letter or Authorization was binding. The Referral
Letter expressly provided that the fee-division agreement did not
pertain to fees for an appeal or a retrial. But the Authorization
1 See Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807
(2006).
166 	276 NEBRASkA REPORTS

provided that “any fee collected for legal services in regard to
[Shipler’s] claim” would be divided with 75 percent to Piuze and
25 percent to McCord. (Emphasis supplied.)
The district court decided that the Referral Letter from Piuze to
McCord was a fee-division agreement that was neither disclosed
to Shipler in writing nor consented to by Shipler. According to
the court, such an agreement violated the Nebraska Code of
Professional Responsibility and the Nebraska and California
Rules of Professional Conduct. The court therefore determined
that the Referral Letter was an unenforceable fee division. The
court concluded that the Authorization, which Shipler signed,
was the only binding fee-division agreement.
The court further determined that the language, “any fee col-
lected,” in the Authorization included all fees, whether they were
for trial or appellate work. Therefore, the court concluded that
Piuze should have sent McCord 25 percent of all the attorney
fees he collected for Shipler’s case and not just 25 percent of
the fees relating to the trial. The district court granted sum-
mary judgment for McCord, and Piuze appealed. We granted
McCord’s petition to bypass the Court of Appeals.
ASSIGNMENTS OF ERROR
Piuze assigns, restated, that the district court erred in (1)
determining the Referral Letter was unenforceable, (2) deter-
mining that the Authorization was an enforceable contract for
division of attorney fees, (3) “applying the rules of professional
conduct to rewrite the contract contrary to the intention of the
parties,” and (4) awarding prejudgment interest.
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.2 In reviewing a summary judg-
ment, we view the evidence in the light most favorable to the
2 Lexington Ins. Co. v. Entrex Comm. Servs., 275 Neb. 702, 749 N.W.2d 124
(2008).
MCCORD & BURNS LAW FIRM v. PIUzE 	167
Cite as 276 Neb. 163

party against whom the judgment is granted and give such
party the benefit of all reasonable inferences deducible from
the evidence.3
[3,4] The interpretation of a contract involves a question of
law.4 When reviewing questions of law, we resolve the questions
independently of the conclusions reached by the trial court.5
ANALySIS
dIStrICt C ourt ’S analySIS
According to the district court, the issue it needed to decide
was “whether the . . . Authorization or the Referral . . . Letter is
binding.” In making that decision, the court considered whether
the individual documents complied with ethics rules. The court
determined that the applicable ethics provisions were Canon 2,
DR 2-107, of the Nebraska Code of Professional Responsibility;
Neb. Ct. R. of Prof. Cond. § 3-501.5(e); and rule 2-200 of the
California Rules of Professional Conduct. The court concluded
that when read together, these provisions required five elements
for an enforceable fee-division agreement:
1. Full disclosure in writing to the client including the
terms of the division.
2. The client’s written consent to any fee division.
3. The fee division is in proportion to the services
performed by each lawyer or each lawyer assumes joint
responsibility for the representation.
4. The total fee is not unreasonable or unconscionable.
5. The total fee is not increased solely by reason of
the division.
The court decided that only the first two elements were at issue
for the summary judgment determination.
According to the district court, McCord, Piuze, and Shipler
created a contract to divide attorney fees when they signed the
Authorization. The court then found that the Authorization was
“the only document that disclosed the division of fees to Shipler
3 Id.
4 See id.
5 Id.
168 	276 NEBRASkA REPORTS

and the only division of fees to which she consented.” The court
further stated, “To the extent Piuze’s Referral . . . Letter conflicts
with the terms of the . . . Authorization, it is an agreement to
divide a fee that is neither disclosed to the client in writing, nor
consented to by the client.” The court therefore concluded that
the Referral Letter was an unenforceable fee division and that the
Authorization was the only binding fee-division agreement.
The district court then considered whether the fee-division
agreement in the Authorization pertained to fees for appellate
work. The court concluded that the agreement included appellate
fees, so Piuze owed McCord a portion of those fees.
partIeS’ C ontentIonS
Piuze contends that the district court erred in deciding that the
Referral Letter was unenforceable and in finding that the parties
intended to split the fees for appellate work. Piuze argues that
the parties’ fee-splitting agreement, as evidenced by the Referral
Letter, was limited to fees for trial work. Piuze disagrees with
the district court’s finding that the terms of this agreement were
not fully disclosed to Shipler.
Piuze does not claim that Shipler saw the Referral Letter or
consented specifically to that document. Instead, we interpret
Piuze’s argument to be that although Shipler did not see the
Referral Letter, Piuze and McCord disclosed their agreement
to her and obtained her consent through the Authorization and
Retainer she signed. So, rather than considering the Referral
Letter and Authorization in isolation as the district court did,
Piuze argues that the two documents, and the Retainer, should
be construed together. According to Piuze, the Authorization and
Retainer fully disclosed to Shipler the terms of the fee-division
agreement, including that the agreement was limited to fees for
trial work. Piuze asserts that although the Authorization stated
he and McCord would split “any fee collected,” the only fee
under consideration when the parties signed the Authorization
was the 40-percent contingent fee for trial work that Shipler
had agreed to in the Retainer. Piuze argues that because Shipler
signed both the Retainer and the Authorization, she received full
disclosure of the parties’ agreement to split the fees for the trial
work and consented to this agreement.
MCCORD & BURNS LAW FIRM v. PIUzE 	169
Cite as 276 Neb. 163

McCord, of course, disagrees with Piuze’s analysis. McCord
first contends that the Referral Letter is ambiguous and does
not clearly exclude the division of appellate fees. McCord fur-
ther contends that even if the Referral Letter is unambiguous,
it is unenforceable as an undisclosed fee-division agreement.
McCord argues that neither the Referral Letter nor “Piuze’s
interpretation” of the Referral Letter was disclosed to Shipler.6
Like the district court, McCord maintains that the parties’ fee-
division agreement is found in the Authorization because that
was “the only fee division disclosure actually made to Shipler.”7
McCord claims that the “plain, direct and unambiguous” lan-
guage of the Authorization creates an agreement to split all
attorney fees, including fees for the appellate work.8 McCord
contends that Piuze “breached the written agreement to divide
attorney fees.”9
the fee -dIvISIon agreement dId not
I nClude appellate feeS
Because McCord alleges that Piuze breached the fee-division
agreement when he failed to give McCord a share of the appel-
late fees, we must decide whether the fee-division agreement
included fees for the appellate work. If the agreement did not
include appellate fees, then Piuze has not breached the agree-
ment. Without delving into specific ethics rules or whether
the parties’ agreements conformed to those rules, we conclude
below that Piuze and McCord’s fee-division agreement was lim-
ited in scope to fees for trial work and did not extend to fees for
appellate work.
We first consider the Authorization. The Authorization was
drafted from Shipler’s viewpoint and states in relevant part:
I understand and agree that my claim [against GM
and Long] will be handled by the LAW OFFICES OF
MICHAEL J. PIUzE.
6 Brief for appellee at 11.
7 Id. at 18.
8 Id. at 33.
9 Id.
170 	276 NEBRASkA REPORTS

I understand and agree that any fee collected for legal
services in regard to my claim will be divided as follows:
Seventy-five percent (75%) to the LAW OFFICES OF
MICHAEL J. PIUzE
Twenty-five percent (25%) to: Dan McCord (refer-
ring attorney).
Shipler signed the Authorization on April 16, 2000, McCord
signed on May 9, and Piuze signed on May 17. The Authorization
clearly sets out Piuze and McCord’s agreement that they will
divide the fee for services associated with Shipler’s case.
[5] Instruments made in reference to and as part of the same
transaction are to be considered and construed together.10 The
Authorization and Retainer were made as part of the same trans-
action. They concern attorney fees relating to Shipler’s lawsuit
against GM and Long. And although the Retainer was an agree-
ment between Shipler and Piuze, and although Piuze did not
ask McCord to sign the Retainer, McCord signed the document.
Shipler, McCord, and Piuze all signed the Authorization on the
same day they signed the Retainer. Therefore, to determine the
scope of the fee-division agreement in the Authorization, we
look to the Retainer.
The Retainer provides that Shipler retained Piuze to prosecute
her claims relating to the rollover accident and that as com-
pensation for these services, Piuze would receive 40 percent of
Shipler’s recovery. The Retainer expressly provides that any fees
for services on appeal “will be subject to a special agreement
to be negotiated between [Shipler] and [Piuze].” That is, the
Retainer only deals with the compensation Piuze would receive
for his services relating to the trial, and not compensation for
appellate services.
[6] We construe a contract to give effect to the parties’ inten-
tions at the time the writing was made.11 The same day they
signed the Authorization, Piuze and McCord each signed the
10 Solar Motors v. First Nat. Bank of Chadron, 249 Neb. 758, 545 N.W.2d 714
(1996). See, also, Gary’s Implement v. Bridgeport Tractor Parts, 270 Neb.
286, 702 N.W.2d 355 (2005); Nowak v. Burke Energy Corp., 227 Neb. 463,
418 N.W.2d 236 (1988).
11 See Baye v. Airlite Plastics Co., 260 Neb. 385, 618 N.W.2d 145 (2000).
MCCORD & BURNS LAW FIRM v. PIUzE 	171
Cite as 276 Neb. 163

Retainer that provided the only fees to which Shipler had agreed
were fees relating to the trial work. Therefore, we conclude that
when Piuze and McCord agreed in the Authorization to split
“any fees,” the only fees under consideration were the trial fees.
Contrary to McCord’s argument and the district court’s finding,
we conclude that the fee-division agreement did not encompass
appellate fees.
The Referral Letter reiterates that the parties’ fee-division
agreement did not include fees for appellate work. The Referral
Letter expressly states, “Neither my retainer agreement with . . .
Shipler nor [the fee-division] agreement pertains to fees for an
appeal or a retrial, if they become necessary.” McCord signed
and returned the Referral Letter to Piuze a month after the par-
ties signed the Authorization and Retainer. If McCord had a
different understanding of the parties’ agreement or disagreed
with the terms as set out in the Referral Letter, he had a chance
to object before signing this final document. Instead, McCord
signed the Referral Letter, which makes clear that appellate fees
are not included in the fee-division agreement.
Without deciding whether the district court correctly iden-
tified the elements of an enforceable fee-division agreement
under the ethics rules, we note that the parties’ agreement was
disclosed and consented to by Shipler. Because we conclude that
the Authorization and Retainer set out the fee-division agree-
ment, the agreement was disclosed to Shipler when she saw the
two documents. And by signing the Authorization and Retainer,
she consented to the parties’ agreement to split the fees for the
trial work. So, any concerns regarding disclosure and consent
are put to rest.
Because the parties’ fee-division agreement was limited to
fees for trial work and did not include appellate fees, Piuze did
not breach the agreement when he sent McCord 25 percent of
the trial fees but not 25 percent of the appellate fees. Therefore,
the district court erred in granting McCord’s motion for sum-
mary judgment.
We reverse the district court’s entry of summary judgment. In
light of our reversal, we do not reach Piuze’s argument that the
court erred in awarding prejudgment interest.
172 	276 NEBRASkA REPORTS

CONCLUSION
We conclude that Piuze and McCord’s agreement to divide
fees did not encompass the fees that Piuze received for the
appellate work (i.e., the additional 10 percent of Shipler’s
recovery). Piuze did not breach the fee-division agreement when
he declined to split the fees relating to the appellate work. We
reverse because the district court erred in sustaining McCord’s
motion for summary judgment.
reverSed .
S tephan, J., not participating.
STATE v. ROyER 	173
Cite as 276 Neb. 173
S tate of nebraSka , appellee , v .
andreW royer , appellant .
753 N.W.2d 333
Filed July 18, 2008. 	No. S-07-834.
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error appearing on
the record.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from
the county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error or
abuse of discretion.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
4. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. A trial court’s ruling on a motion to suppress based on
the Fourth Amendment, apart from determinations of reasonable suspicion to con-
duct investigatory stops and probable cause to perform warrantless searches, is to
be upheld on appeal unless its findings of fact are clearly erroneous. The ultimate
determinations of reasonable suspicion to conduct an investigatory stop and prob-
able cause to perform a warrantless search are reviewed de novo.
5. Constitutional Law: Investigative Stops: Search and Seizure: Probable Cause.
The Fourth Amendment guarantees the right to be free of unreasonable search
and seizure. This guarantee requires that an arrest be based upon probable cause
and limits investigatory stops to those made upon an articulable suspicion of
criminal activity.