Hauptman, O'Brien v. Turco

that Hamilton’s no contest pleas spared his young victims from
having to testify, but it is also true that Hamilton benefited
from the plea agreement.
Taking into consideration all of the relevant factors, we
conclude that the district court did not abuse its discretion in
sentencing Hamilton as it did.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court sentencing Hamilton to terms of incarceration
for each of the two offenses for which he was convicted and
imposing the requirements of lifetime registration and commu-
nity supervision.
A ffirmed.
G errArd, J., participating on briefs.
HAuptmAn, O’Brien, WOlf & lAtHrOp, p.C., Appellee , v.
lOuis J. turCO, Jr ., And luCiA turCO, AppellAnts.
764 N.W.2d 393
Filed April 17, 2009. 	No. S-07-1271.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to 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 a 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. Attorney Fees. Once the existence of a fee agreement is established, an attorney
fee computed pursuant to the fee agreement is subject to the same standard of
reasonableness as any other attorney fee.
4. Attorney Fees: Proof. Once a lawyer has established a prima facie case that a
demanded fee is reasonable, judgment as a matter of law is precluded only if
the client produces specific evidence on factors relevant to the reasonableness of
the fee. Only at that point does the client show a genuine issue of material fact,
so as to place the burden on the lawyer to persuade the trier of fact that the fee
demanded is reasonable under the circumstances.
5. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
604 	277 NebrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J. miCHAel COffey, Judge. Affirmed.
Jeff T. Courtney, p.C., L.L.O., for appellants.
Terry M. Anderson and Melany S. Chesterman, of Hauptman,
O’brien, Wolf & Lathrop, p.C., for appellee.
Matthew A. Lathrop and kate e. placzek for amicus curiae
Nebraska Association of Trial Attorneys.
H eAviCAn, 	C.J., 	WriGHt, 	COnnOlly, 	G errArd, 	stepHAn,
mCCOrmACk , and miller-lermAn, JJ.
miller-lermAn, J.
NATUre OF THe CASe
Following remand from this court, the district court for
Douglas County granted the motion for summary judgment
filed by the appellee law firm, Hauptman, O’brien, Wolf &
Lathrop, p.C., and awarded an attorney lien in the amount of
$64,600 in favor of appellee and against appellants, Louis J.
Turco, Jr., and Lucia Turco. Appellants appeal. because appel-
lee presented sufficient evidence to establish that its demanded
fee was reasonable, and appellants did not provide any evi-
dence refuting appellee’s evidence, we affirm.
STATeMeNT OF FACTS
This court has previously addressed the issues raised in
this appeal in Hauptman, O’Brien v. Turco, 273 Neb. 924,
735 N.W.2d 368 (2007) (Turco I). The facts surrounding
the events that occurred prior to Turco I are recited in that
opinion, and will not be restated in detail here. In summary,
appellants hired appellee to represent them in a serious per-
sonal injury matter. The parties entered into a contingent
fee agreement in which appellants agreed to pay appellee
331⁄3 percent of any recovery by judgment or by settlement.
The matter settled promptly. prior to accepting the settle-
ment, appellants terminated their relationship with appellee.
Once appellants accepted the settlement, appellee requested
its demanded fee of 331⁄3 percent of the settlement received
by appellants. Appellants objected to the amount of the fee
HAUpTMAN, O’brIeN v. TUrCO 	605
Cite as 277 Neb. 604

requested, arguing that the demanded fee was excessive for
the amount of work completed by appellee. Appellee filed suit
to recover its demanded fee. The district court for Douglas
County granted appellee’s motion for summary judgment, and
appellants appealed to this court.
We considered the matter, and in Turco I, this court con-
cluded that despite the existence of a contingent fee agreement
between the parties, appellee must establish the reasonable-
ness of its demanded fee. This court determined that, based
on the evidence presented in the district court, appellee had
not set forth enough evidence to meet its burden. The district
court’s grant of appellee’s motion for summary judgment was
reversed, and the matter was remanded for further proceedings
on the reasonableness of appellee’s demanded fee.
On remand, the district court held an evidentiary hearing on
appellee’s motion for summary judgment. As evidence of the
reasonableness of its fee, appellee presented affidavits from
experienced attorneys in the community. These affidavits were
from attorneys with varying experience in insurance litiga-
tion, including counsel defending insurance carriers, counsel
representing claimants, and in-house counsel. The affidavits
stated in general that the work done representing appellants
by the attorneys associated with appellee justified the fee.
Specifically, the affidavits stated that the affiants knew the
reputation of the attorneys representing appellants—Melany
Chesterman and David Lathrop—and the appellee law firm
and that Chesterman, Lathrop, and the law firm had an excel-
lent reputation in the legal community. Many of the affiants
stated that they had worked with Lathrop and Chesterman
and that Lathrop and Chesterman possessed specialized skills
and knowledge in representing seriously injured victims of
automobile collisions. Several of the affiants indicated that
the reputation of the law firm negotiating a settlement with an
insurance carrier can influence the amount of time it takes to
settle the lawsuit. Further, several of the affiants stated that,
based on the affiants’ knowledge of appellants’ case, a 331⁄3
percent contingent fee was a reasonable fee.
In response to appellee’s evidence, appellants did not present
any evidence refuting the affidavits proffered by appellee. The
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district court sustained appellee’s motion for summary judg-
ment. Appellants once again appeal.
ASSIGNMeNTS OF errOr
Appellants claim that the district court erred in granting
appellee’s motion for summary judgment (1) because there
were genuine issues of material fact as to whether appellee’s
fee agreement was reasonable and (2) because there were
genuine issues of material fact as to whether appellee made
fraudulent misrepresentations to appellants, knowing the mis-
representations to be fraudulent, and appellants relied on the
statements in connection with appellee’s representation and the
fee agreement.
STANDArDS OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Yoder v. Cotton, 276 Neb. 954,
758 N.W.2d 630 (2008). In reviewing a summary judgment, an
appellate court views the evidence in a 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. Id.
ANALYSIS
First Assignment of Error: Appellee Established That
Its Fee Was Reasonable in This Matter.
Appellants argue that appellee did not present sufficient
evidence to establish that its demanded fee was reasonable,
because the affidavits submitted by appellee failed to specifi-
cally address the reasonableness of the fee with respect to the
facts in this case. Appellee counters that it met its burden
and that appellants failed to refute its evidence. We agree
with appellee.
[3] In Turco I, we concluded that once the existence of a
fee agreement is established, an attorney fee computed pur-
suant to the fee agreement is subject to the same standard of
reasonableness as any other attorney fee. Therefore, because
HAUpTMAN, O’brIeN v. TUrCO 	607
Cite as 277 Neb. 604

the parties do not dispute the existence of a fee agreement, the
main inquiry in this case is whether at the hearing on remand
appellee presented sufficient evidence to establish its demanded
fee was reasonable.
The concurring opinion in Turco I specifically addressed the
conflict that exists between the parties here—what evidence
each party needs to present to establish reasonableness in order
either to successfully show the absence of a genuine issue of
material fact or to avoid the district court’s entering judgment
as a matter of law. The concurrence stated that a lawyer can
establish the extent and value of his or her services in a con-
tingent fee case by producing evidence showing, for example,
the results obtained, the quality of the work, and whether the
lawyer’s efforts substantially contributed to the result. Turco I
(Gerrard, J., concurring; Connolly and McCormack, JJ., join).
The concurrence then identified other factors relevant to the
reasonableness of a contingent fee, including the time and
labor required, the novelty and difficulty of the legal issues
involved, the skill required to do the work properly, and the
experience, reputation, and ability of the lawyer performing
the services. Id. Acknowledging that the pertinent factors will
differ from case to case, the concurrence concluded that the
general inquiry should focus on the circumstances of the agree-
ment and the work performed. Id.
The Turco I concurring opinion explained that once the
attorney has established the reasonableness of his or her fee
using the criteria discussed above, at that point, the eviden-
tiary burden going forward shifts to the client, and the cli-
ent must object to the evidence established by the attorney
with specificity to demonstrate why the documented fees are
not reasonable.
[4] We now adopt these standards discussed in the Turco I
concurrence, including the following:
[O]nce a lawyer has established a prima facie case that
a demanded fee is reasonable, judgment as a matter of
law is precluded only if the client produces specific evi-
dence on factors relevant to the reasonableness of the fee.
Only at that point does the client show a genuine issue of
material fact, so as to place the burden on the lawyer to
608 	277 NebrASkA repOrTS

persuade the trier of fact that the fee demanded is reason-
able under the circumstances.
273 Neb. at 934-35, 735 N.W.2d at 376 (Gerrard, J., concur-
ring; Connolly and McCormack, JJ., join).
Furthermore, as was stated in the Turco I concurrence, we
believe that courts should be reluctant to disturb contingent
fee agreements freely entered into by knowledgeable and
competent parties. Indeed, “[a] prompt and efficient attorney
who achieves a fair settlement without litigation serves both
the client and the interests of justice.” Id. at 934, 735 N.W.2d
at 376 (Gerrard, J., concurring; Connolly and McCormack,
JJ., join).
based on these principles, and referring to the record in
this case, it is clear that appellee’s evidence established a
prima facie case that its demanded fee was reasonable, and
because appellants offered no evidence, appellants failed to
produce evidence specifically refuting the reasonableness of
the fee.
Appellee provided affidavits from six individual attorneys
with varying experience in the field of personal injury and
insurance cases. The affiants stated that they knew Lathrop,
Chesterman, and the law firm and that the individual attorneys
and the law firm had an excellent reputation in the legal com-
munity. The affiants stated that this reputation was influential
in the ability to swiftly settle insurance disputes and that law
firms and attorneys without such experience may spend signifi-
cantly more time to settle a similar claim.
Although appellants argue that the affidavits do not specifi-
cally address the reasonableness of the fee with respect to the
facts in this matter, our review of the record is to the contrary.
Several affiants stated that they were familiar with the details
of appellants’ case and that the contingent fee charged by
appellee was reasonable in light of the facts and circumstances
surrounding the collision, the injuries sustained, and the indi-
viduals involved. Indeed, one affiant opined that the insurance
company was willing to pay the claim in this case quickly
because of the excellent reputation of the lawyers in this case
and that had counsel been less skilled, the case may have taken
18 months to settle. Further, another affiant stated that he had
HAUpTMAN, O’brIeN v. TUrCO 	609
Cite as 277 Neb. 604

reviewed appellants’ file and that in his opinion, the result
obtained for appellants was excellent.
We conclude that this evidence was sufficient to prove
the reasonableness of appellee’s fee. The proffered affidavits
addressed the reasonableness of the fee as it pertained to the
specific facts of this case, addressed the quality of the work
performed, addressed the results obtained by the attorneys, and
addressed how the attorneys’ efforts substantially contributed
to the result.
The evidentiary burden then shifted to appellants, who in
response did not provide any evidence specifically refuting the
statements made in these affidavits. Therefore, the district court
properly granted summary judgment in favor of appellee.
Second Assignment of Error: The Assigned Error Is
Not Argued in Appellants’ Brief.
[5] As their second assignment of error, appellants state that
the district court erred when it granted summary judgment,
because there were genuine issues of material fact as to their
affirmative defense of fraudulent inducement. In their brief,
appellants recite the elements of fraudulent inducement and
state in conclusory fashion that the facts would establish their
claim. In their brief, appellants have not presented this court
with any argument in support of their assertion, nor have they
directed us to any material fact in evidence in the record which
is in dispute. In order to be considered by an appellate court,
an alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error. Nelson
v. Lusterstone Surfacing Co., 258 Neb. 678, 605 N.W.2d 136
(2000). because appellants failed to argue their second assign-
ment of error, this court will not consider the issue.
CONCLUSION
Appellee established a prima facie case that its demanded
fee was reasonable, and appellants did not specifically refute
such evidence. We affirm the order of the district court which
granted appellee’s motion for summary judgment.
A ffirmed.
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