Stueve v. Valmont Industries

761 N.W.2d 544, 277 Neb. 292
CourtNebraska Supreme Court
DecidedFebruary 27, 2009
DocketS-08-397
StatusPublished
Cited by38 cases

This text of 761 N.W.2d 544 (Stueve v. Valmont Industries) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stueve v. Valmont Industries, 761 N.W.2d 544, 277 Neb. 292 (Neb. 2009).

Opinion

761 N.W.2d 544 (2009)
277 Neb. 292

Jeffrey L. STUEVE, appellee, and
Robert G. Krafka, appellant,
v.
VALMONT INDUSTRIES, appellee.

No. S-08-397.

Supreme Court of Nebraska.

February 27, 2009.

*546 Robert G. Krafka, of Krafka Law Office, Fremont, pro se.

Jeffrey L. Stueve, pro se.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF THE CASE

Appellant attorney Robert G. Krafka challenges two orders entered by a single judge of the Nebraska Workers' Compensation Court as affirmed by the review panel on April 2, 2008. The orders awarded Krafka an attorney's lien on a portion of a workers' compensation award entered in favor of Krafka's client, Jeffrey L. Stueve. Krafka claims that the attorney's lien was insufficient and that the review panel erred in affirming the determinations of the single judge. We reverse the decision of the review panel that affirmed the single judge's rulings, and we remand the cause with directions.

STATEMENT OF FACTS

On June 16, 2003, Krafka entered into an employment contract for legal services with Stueve. The contract stated in relevant part:

As I explained to you, if you wish me to represent you, my fee will be THIRTY-THREE AND ONE-THIRD PERCENT (33 1/3%) of any recovery through the first trial. Any work done for you after the first trial, if it is necessary, shall result in an additional five percent (5%) being charged for appeal.

On June 29 and July 23, 2004, a 2-day trial was held on Stueve's claimed injuries, insured in connection with his employment at Valmont Industries. On December 8, the single judge entered an award in favor of Stueve. The award noted that Stueve was suffering from separate injuries that were caused by separate accidents: (1) bilateral carpal tunnel syndrome and hand-arm vibration syndrome (HAVS) and (2) a shoulder injury that the court described as a "superior labral tear." The court ordered that for these injuries, along *547 with certain medical expenses, Stueve should be compensated as follows: (1) from June 20 through November 7, 2003, temporary indemnity payments for the bilateral carpal tunnel syndrome and HAVS in the amount of $391.79 per week and a concurrent temporary indemnity payment of $95.21 per week for the shoulder injury, and (2) from November 8, 2003, forward, through the period of temporary total disability for the shoulder injury, temporary total indemnity payments of $391.79 per week for the shoulder injury and a concurrent payment of $95.21 per week permanent partial indemnity for the bilateral carpal tunnel syndrome and HAVS. The court found that the total permanent indemnity payable for the bilateral carpal tunnel syndrome and HAVS was $47,602.49. Krafka contends that, given this award, it is likely that Stueve will receive future payments for his shoulder injury, but that the amount of these payments is unknown.

At a hearing, on December 7, 2006, Krafka filed a motion to withdraw as counsel for Stueve and new counsel entered an appearance. According to Krafka, the parties terminated their engagement due to a difference of opinion that is not relevant to this appeal.

On January 12, 2007, the single judge held a hearing on the attorney fees due Krafka. At that hearing, Stueve indicated that Krafka was entitled to one-third of the $47,602.49 permanent indemnity award. Krafka testified that this was a complicated case and that his records indicated that he had incurred around $90,000 in attorney fees representing Stueve.

On February 7, 2007, the single judge entered an order on the issue of attorney fees. In his order, the single judge noted that Krafka sought a full fee based on the contingency fee agreement, but did not complete all of the work in Stueve's case. The single judge noted that various matters were still pending, including employer Valmont Industries' January 24, 2007, application to modify the December 8, 2004, award, motions regarding Stueve's entitlement to medical care, and an outstanding determination as to the status of Stueve's shoulder injury as either being temporarily totally disabled or reaching permanent indemnity.

Balancing these considerations, the single judge evaluated Krafka's lien under the doctrine of quantum meruit and stated:

The Court evaluates ... Krafka's lien for future attorney's fees pursuant to quantum meruit doctrine and finds ... Krafka is entitled to an attorney's fee against future temporary total indemnity payments provided by the award. However, there are pending motions regarding entitlement to medical care and now, defendant's application to modify the award. Upon a change of [Stueve's] status — i.e., ... Stueve continues to be temporarily totally disabled but pursuant to a surgery subsequent to this order, he reaches maximum medical improvement and then becomes entitled to temporary total indemnity during a period of vocational rehabilitation or reaches maximum medical improvement and becomes entitled to permanent indemnity — ... Krafka's entitlement to an attorney's fee will terminate, upon motion of [Stueve] and order of the Court.
IT IS THEREFORE ORDERED that ... Krafka has a lien for services provided equal to one-third of the temporary total indemnity payable pursuant to the Award of December 8, 2004, as provided above. Indemnity payments shall continue to ... Krafka and ... Stueve through ... Krafka's office.... Krafka is further entitled to reimbursement of expenses in the amount of $864.55 which will be payable upon final *548 settlement of [Stueve's] claim and further order of the Court.

On February 12, 2007, Krafka appealed this order to the review panel. On September 14, the review panel entered an order of remand on review. In that order, the review panel noted that the December 8, 2004, award provided for both the payment of temporary total indemnity payments and permanent indemnity payments for member injuries, but that in the February 7, 2007, order on attorney fees, the single judge made no mention of an attorney's lien in favor of Krafka on the award of permanent indemnity benefits. The panel found that the action should be remanded to the single judge for additional findings with respect to an attorney's lien in favor of Krafka on the award of permanent indemnity benefits.

On remand, the single judge entered an order on November 1, 2007, containing rulings relevant to this appeal, but did not include an award to Krafka of additional fees. On November 2, Krafka appealed this decision for a second review hearing by a three-judge panel. On April 2, 2008, the review panel affirmed the November 1, 2007, order, concluding that because the November 1 order on remand was not clearly wrong, it should be affirmed. Krafka appeals the review panel's order.

ASSIGNMENTS OF ERROR

Krafka lists 11 assignments of error, which we combine for analysis. Krafka assigns, restated, that the review panel erred in affirming the single judge's November 1, 2007, order, Krafka claims that the single judge erred by (1) not placing a one-third attorney's lien upon the permanent indemnity award of $47,602.49, (2) not awarding Krafka any potential attorney fees derived from a future award that Stueve would receive as the result of work completed by Krafka, and (3) not holding a hearing and making a further finding that attorney fees will be due for the permanent indemnity injury as the single judge was instructed to do by the review panel's order of remand.

STANDARDS OF REVIEW

Pursuant to Neb.Rev.Stat.

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Cite This Page — Counsel Stack

Bluebook (online)
761 N.W.2d 544, 277 Neb. 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stueve-v-valmont-industries-neb-2009.