McCully, Inc. v. Baccaro Ranch

parties have a right to enforce § 253, and whether the doctrine
of primary jurisdiction should apply.42 We find no merit to
TracFone’s final assignment of error.
VI. ConClusIon
The Commission did not err in its construction of the 911
Act, in its rejection of TracFone’s proposed alternative col-
lection methods, or in requiring TracFone to comply with its
approved collection methods pending approval of any other
proposal. The district court did not err in affirming those con-
clusions, nor did the court err in relying on legal research and
legislative history in doing so. And neither the 911 Act nor the
Commission’s application of it is preempted by federal law.
Therefore, we affirm the judgment of the district court.
A ffirmed.
42 see, e.g., Puerto Rico, supra note 33; City of Santa Fe, New Mexico, supra
note 33; TCG New York, Inc., supra note 38; BellSouth Telecommunications,
supra note 33; City of Berkeley, supra note 33.
mcCully, InC. v. bACCAro rAnCh 	443
Cite as 279 neb. 443
mccully, inc., doing business As mccully rAnch
compAny, A nebrAskA corporAtion, AppellAnt, v.
bAccAro rAnch , A nebrAskA limited
liAbility compAny, Appellee .
778 n.W.2d 115
Filed February 12, 2010. 	no. s-09-372.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a
district court’s grant of a motion to dismiss de novo, accepting all the allegations
in the complaint as true and drawing all reasonable inferences in favor of the
nonmoving party.
2. Pleadings: Proof. Complaints should be liberally construed in the plaintiff’s
favor and should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his or her
claim which would entitle the plaintiff to relief.
3. Trial: Attorneys at Law: Appeal and Error. A motion to disqualify an attorney
is addressed to the discretion of the trial court, whose findings will not be dis-
turbed absent evidence of abuse.
4. Actions: Attorneys at Law: Appeal and Error. An attorney disqualification
matter is ancillary to the main case, whether the main case is at law, in equity, or
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

a special proceeding; thus, factual findings in disqualification cases will not be
disturbed on appeal if substantial evidence supports those findings.
Appeal from the District Court for hooker County: John
p. murphy, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Ward F. hoppe and Tonia m. novak, of hoppe, Vogt &
barrows, l.l.P., for appellant.
George G. Vinton for appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
heAvicAn, C.J.
I. InTroDuCTIon
mcCully, Inc., doing business as mcCully ranch Company
(mcCully), appeals the decision of the hooker County District
Court dismissing its amended complaint for failure to state a
claim. mcCully, a real estate brokerage, claims that baccaro,
Inc., breached a listing agreement and that it should be able
to recover a commission from baccaro under the agreement
or, in the alternative, that quantum meruit should apply. The
district court dismissed mcCully’s complaint for failure to state
a claim. mcCully also filed a motion to disqualify opposing
counsel, which the district court denied. We reverse the deci-
sion of the district court as to the motion to dismiss but affirm
as to the motion to disqualify.
II. bACKGrounD
mcCully and baccaro entered into a “Farm, ranch and
land Exclusive right to sell or Exchange listing” (listing
agreement) on or about December 23, 2006. mcCully filed its
complaint in the district court on August 11, 2008. baccaro
responded with a motion to dismiss on August 21, which was
granted, along with leave to amend. mcCully filed an amended
complaint on november 3, alleging both a breach of contract
and unjust enrichment by baccaro.
According to the amended complaint, baccaro appointed
mcCully as baccaro’s exclusive agent for the purpose of selling
444 	279 nEbrAsKA rEPorTs

a ranch property in hooker County, nebraska. According to
mcCully, during the term covered by the listing agreement,
December 23, 2006, through December 1, 2007, mcCully
found a buyer willing to exchange its ranch for baccaro’s
ranch, plus an additional $180,000. baccaro made a counter-
offer for a direct exchange without an additional payment.
At that time, the potential buyer refused the counteroffer.
mcCully’s amended complaint alleged that on september 6,
2007, the same potential buyer accepted baccaro’s counter-
offer, but that baccaro refused to consent to the exchange until
after the listing agreement had lapsed, in an effort to avoid
compensating mcCully.
In its amended complaint, mcCully alleged both a breach
of contract and unjust enrichment by baccaro. baccaro filed a
motion to dismiss for failure to state a claim under neb. Ct. r.
Civ. Pldg. § 6-1112(b)(6). mcCully later filed a motion to dis-
qualify baccaro’s counsel based on a conflict of interest, which
motion the district court denied. The district court granted
baccaro’s motion to dismiss, finding that the listing agreement
was unenforceable under the statute of frauds and that mcCully
could not circumvent the statute of frauds by pleading unjust
enrichment. mcCully appealed.
III. AssIGnmEnTs oF Error
mcCully assigns, consolidated and restated, that the dis-
trict court erred when it found that (1) mcCully failed to
state a claim for breach of contract or quantum meruit and
(2) there was no conflict of interest sufficient to disqualify
baccaro’s counsel.
IV. sTAnDArD oF rEVIEW
[1] An appellate court reviews a district court’s grant of
a motion to dismiss de novo, accepting all the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.1
[2] Complaints should be liberally construed in the plaintiff’s
favor and should not be dismissed for failure to state a claim
1 McKenna v. Julian, 277 neb. 522, 763 n.W.2d 384 (2009).
mcCully, InC. v. bACCAro rAnCh 	445
Cite as 279 neb. 443

unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim which would entitle
the plaintiff to relief.2
[3] A motion to disqualify an attorney is addressed to the
discretion of the trial court, whose findings will not be dis-
turbed absent evidence of abuse.3
V. AnAlysIs
1. district court erred When it grAnted
bAccAro’s motion to dismiss
We first turn to the district court’s grant of baccaro’s motion
to dismiss. The district court granted baccaro’s motion to dis-
miss based on neb. rev. stat. § 76-2422 (reissue 2009), which
requires a “written agreement” for brokerage services. under
§ 76-2422(6), a “written agency agreement” for brokerage
services must specify “the agent’s duties and responsibilities,
including . . . the terms of compensation.” The district court
determined that § 76-2422 operated as a statute of frauds and
that therefore, parol evidence was not allowed.4 The district
court determined the listing agreement was void because the
listing agreement did not sufficiently specify the terms of
compensation in the event of an exchange of land and parol
evidence would be required to establish material terms of the
agreement. The district court also found that mcCully could not
avoid the statute of frauds by alleging unjust enrichment.
We begin by noting that § 76-2422 was first enacted in
1994 as part of an effort to “codify in statute the relationships
between real estate brokers or salespersons and persons who
are sellers, landlords, buyers, or tenants of rights and interests
in real property.”5 The consequence for violating any provision
of neb. rev. stat. §§ 76-2401 to 76-2430 (reissue 2009) is
that such violation is considered an unfair trade practice6 and is
2 Id.
3 CenTra, Inc. v. Chandler Ins. Co., 248 neb. 844, 540 n.W.2d 318 (1995).
4 see Krueger v. Callies, 190 neb. 376, 208 n.W.2d 685 (1973).
5 neb. rev. stat. § 76-2401(3) (reissue 2009).
6 § 76-2425.
446 	279 nEbrAsKA rEPorTs

subject to administrative action under the nebraska real Estate
license Act.7 section 76-2422 is therefore part of a statutory
scheme regulating the agency relationships of real estate bro-
kers and salespersons to buyers and sellers of real property, and
it should be read in conjunction with the nebraska real Estate
license Act.
(a) § 76-2422 Applies to Exchanges of land
on appeal, mcCully argues that § 76-2422 applies only to
sales, not exchanges, of real property and therefore is irrelevant
in this case. As such, mcCully argues that its allegations that
baccaro was unjustly enriched should survive a motion to dis-
miss. section 76-2422(6) provides in relevant part:
before engaging in any of the activities enumerated in
subdivision (2) of section 81-885.01, a designated bro-
ker who intends to establish an agency relationship with
any party or parties to a transaction . . . shall enter into
a written agency agreement with a party or parties to the
transaction to perform services on their behalf. The agree-
ment shall specify the agent’s duties and responsibilities,
including any duty of confidentiality, and the terms of
compensation. Any agreement under this subsection shall
be subject to the common-law requirements of agency
applicable to real estate licensees.
section 81-885.01(2) defines a broker as “any person who,
for any form of compensation or consideration or with the intent
or expectation of receiving the same from another, negotiates
or attempts to negotiate the listing, sale, purchase, exchange,
rent, lease, or option for any real estate.” (Emphasis sup-
plied.) Therefore, under the plain language of § 81-885.01(2),
one of the enumerated activities covered by § 76-2422(6) is
the exchange of property, and mcCully’s argument is with-
out merit.
(b) § 76-2422 Does not Act as statute of Frauds
We next turn to the question of whether § 76-2422 acts
as a statute of frauds, as such was the district court’s basis
7 see neb. rev. stat. §§ 81-885.01 to 81-885.55 (reissue 2008).
mcCully, InC. v. bACCAro rAnCh 	447
Cite as 279 neb. 443

for granting baccaro’s motion to dismiss. The district court
found that “the listing agreement [did] not contain a certain
compensation for payment” from baccaro to mcCully and that
the lack of these terms rendered the agreement unenforceable.
moreover, the district court, citing Blair v. Austin,8 found that
mcCully could not “circumvent the statute of frauds by plead-
ing the action in quantum meruit.” While we agree that a party
cannot circumvent the statute of frauds based on quantum
meruit,9 we find that § 76-2422 does not operate as a statute of
frauds, and as such, the district court was incorrect to grant the
motion to dismiss on those grounds.
We note that nebraska has a statute of frauds that explic-
itly applies to the sale of real estate. neb. rev. stat. § 36-107
(reissue 2008), first passed in 1897, states:
Every contract for the sale of lands between the owner
thereof and any broker or agent employed to sell the
same, shall be void, unless the contract is in writing and
subscribed by the owner of the land and the broker or
agent. such contract shall describe the land to be sold,
and set forth the compensation to be allowed by the
owner in case of sale by the broker or agent.
(Emphasis supplied.) under the plain language of this statute,
noncompliance with its requirements means that the agreement
is void and unenforceable, but prior case law has held that this
statute does not apply to exchanges of land.10
In contrast, § 76-2422 and its related statutes contain no lan-
guage that would render an agreement void. section 76-2422
discusses the need for a written agreement in certain circum-
stances. As already noted, however, § 76-2422 is part of a
larger scheme to regulate real estate brokers and salespersons,
and a violation of a statute in this section may result in admin-
istrative action under the nebraska real Estate license Act.
We therefore find that § 76-2422 does not operate as a statute
of frauds.
8 Blair v. Austin, 71 neb. 401, 98 n.W. 1040 (1904).
9 see id.
10 Dunn v. Snell, 124 neb. 560, 247 n.W. 428 (1933).
448 	279 nEbrAsKA rEPorTs

(c) Amended Complaint
The 	question 	then 	presented 	to 	this 	court 	is 	whether
mcCully’s amended complaint was sufficient to survive a
motion to dismiss. We review a district court’s grant of a
motion to dismiss de novo, accepting all facts in the complaint
as true and drawing all inferences in favor of the nonmov-
ing party.11 Complaints should be liberally construed in the
plaintiff’s favor and should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his or her claim which would
entitle the plaintiff to relief.12
We find that the amended complaint was sufficient to survive
baccaro’s motion to dismiss. The amended complaint states
that the exchange was based on the listed value of $1.6 mil-
lion and that baccaro breached the contract after mcCully had
performed by finding a buyer for the property. Furthermore, the
listing agreement provided sufficient terms of compensation
to satisfy § 76-2422. The listing agreement includes a sliding-
scale fee arrangement in which the commission is based on a
percentage of the purchase price. The listing agreement also
states that the “[c]omission rate based on the gross sale price of
the property shall be payable to broKEr . . . [i]f, during the
term of the listing, . . . seller exchanges the Property.” We find
that when read together, the listing agreement and the amended
complaint set out sufficient terms of compensation to state a
claim upon which relief could be granted.
2. district court did not err in denying
motion to disquAlify
mcCully argues that the district court erred when it denied
the motion to disqualify baccaro’s counsel. one of the own-
ers of mcCully, Kevin mcCully, claims that George Vinton,
counsel for baccaro, represented him in matters the same as or
substantially related to those involved in this suit. The district
court found that Vinton did not represent mcCully, or Kevin
11 see Anderson v. Wells Fargo Fin. Accept., 269 neb. 595, 694 n.W.2d 625
(2005).
12 McKenna, supra note 1.
mcCully, InC. v. bACCAro rAnCh 	449
Cite as 279 neb. 443

mcCully, other than to prepare limited liability company forms
for the mcCully ranch in 2004.
We note that this case presents in an unusual procedural
posture in that typically, the denial of a motion to disqualify
will be challenged by mandamus. In this case, though, the
issue is presented to us on direct appeal. We held in CenTra,
Inc. v. Chandler Ins. Co.13 that “when an appeal from an order
denying disqualification involves issues collateral to the basic
controversy, and when an appeal from a judgment dispositive
of the entire case would not be likely to protect the client’s
interests, the party should seek mandamus or other interlocu-
tory review.” In other words, once a case has been litigated,
an appellate court will not disturb the denial of a motion to
disqualify counsel, because to do so will give litigants “a sec-
ond bite at the apple.”14 The present case, however, involves
an appeal from a motion to dismiss that was sustained at the
same time the motion to disqualify was denied, and none of the
concerns present in CenTra, Inc. are present here. because we
are reversing and remanding on grounds other than the denial
of the motion to disqualify, and because this issue may arise
again, we address mcCully’s assignment of error here.
Kevin mcCully claimed that he had consulted with Vinton
approximately once per month since 2003 and that he had
received advice on land sales and closing transactions for
mcCully. he stated that he had not received a bill from
Vinton, other than for the preparation of limited liability
company documents in 2004. Kevin mcCully claimed that he
consulted with Vinton regarding wills and real estate matters
for which mcCully was never billed. Kevin mcCully also
claimed that he referred baccaro to Vinton to assist baccaro
in correcting a boundary line problem and that he attempted
to consult with Vinton on the issue of compensation in this
case. At that time, Vinton informed mcCully that he was
working for baccaro. Kevin mcCully alleged that Vinton had
enough information about his personality and approach to real
estate issues that Vinton had inside information he could use
13 CenTra, Inc., supra note 3, 248 neb. at 854, 540 n.W.2d at 327.
14 Id. at 852, 540 n.W.2d at 326.
450 	279 nEbrAsKA rEPorTs

against mcCully in this matter. Kevin mcCully’s wife also
submitted an affidavit claiming that she considered Vinton the
family attorney.
one of the managing members of baccaro, Alma bullington,
characterized Vinton as counsel for baccaro for various matters
since at least 2006. she stated that Vinton worked on resolv-
ing boundary issues as well as a potential contract between
baccaro and mcCully in september 2007. bullington claims
that Vinton served as baccaro’s attorney from February 2007
through July 2008 and that at no time did she believe that
Vinton was also serving as mcCully’s attorney. bullington
stated that baccaro paid all of the legal bills for Vinton’s work
and that when mcCully approached Vinton, Vinton stated that
he would work on the agreement between the two only if
authorized by baccaro. Another managing member of baccaro
provided an affidavit that made essentially the same claims.
both of these managing members of baccaro claimed that
mcCully never informed them that Vinton was also represent-
ing mcCully.
In Vinton’s affidavit, he stated that he had done work for
various members of bullington’s family and baccaro since
the early 1990’s. he also stated affirmatively that he never
considered himself to be mcCully’s attorney. Vinton alleged
that mcCully was aware of this fact and that mcCully came
to him for his assistance on the boundary dispute because
mcCully was aware of Vinton’s representation of baccaro and
the bullington family. Vinton stated that mcCully referred two
parties to Vinton for whom mcCully was the realtor, but that
Vinton did not work for mcCully, nor did he bill mcCully
for any work done. Vinton stated that mcCully prepared the
listing agreement and that Vinton did not become involved
in the present case until well after the agreement had been
signed by both parties. Vinton stated that he worked with
Kevin mcCully, but never for him other than to prepare the
limited liability company documents, and that Kevin mcCully
would have no reason to believe that Vinton had ever served
as his attorney.
[4] A motion to disqualify an attorney is addressed to the dis-
cretion of the trial court, whose findings will not be disturbed
mcCully, InC. v. bACCAro rAnCh 	451
Cite as 279 neb. 443

absent evidence of abuse.15 An attorney disqualification matter
is ancillary to the main case, whether the main case is at law,
in equity, or a special proceeding; thus, factual findings in dis-
qualification cases will not be disturbed on appeal if substantial
evidence supports those findings.16 neb. Ct. r. of Prof. Cond.
§ 3-501.9(a) provides that
[a] lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in
the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of
the former client unless the former client gives informed
consent, confirmed in writing.
We find no abuse of discretion in the district court’s deter-
mination that Vinton had not served as mcCully’s attorney
in the same or a substantially related matter. Although Kevin
mcCully claims that Vinton represented him in the matter at
hand, he presents no evidence of such. The only matter in
which Kevin mcCully can demonstrate that Vinton represented
him was in creating limited liability company documents 5
years previously. Preparing those documents cannot be consid-
ered “the same or a substantially related matter” with regard to
this case. We therefore affirm the district court’s denial of the
motion to disqualify baccaro’s attorney.
VI. ConClusIon
We find that mcCully’s complaint established a claim and a
set of facts upon which relief could be granted, and we there-
fore reverse the decision of the district court granting baccaro’s
motion to dismiss. We find that the district court did not abuse
its discretion when it denied mcCully’s motion to disqualify
opposing counsel, however. We therefore reinstate mcCully’s
amended complaint and remand for proceedings consistent
with this opinion.
A ffirmed in pArt, And in pArt reversed
And remAnded With directions.
15 CenTra, Inc., supra note 3.
16 see id.
452 	279 nEbrAsKA rEPorTs