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05/15/2018 08:09 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                        CROSSMAN & HOSFORD v. HARBISON
                                              Cite as 25 Neb. App. 849




                      Crossman & Hosford, appellee, v. Micaela H arbison,
                           Personal R epresentative of the Estate of
                           Jeanne K. Moderow, deceased, appellant.
                                                    ___ N.W.2d ___

                                          Filed May 1, 2018.   No. A-16-1115.

                1.	 Summary Judgment. Summary judgment is proper when the pleadings
                    and evidence admitted at the hearing disclose no genuine issue regard-
                    ing 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.	 Debtors and Creditors: Words and Phrases. An “account stated” is an
                    agreement between persons who have had previous dealings determining
                    the amount due by reason of such transactions.
                4.	 Debtors and Creditors. When parties have accounts against each other,
                    and a statement of the account is made out by one party and presented
                    to the other, and the latter expressly assents to its correctness, the law
                    will regard it as a stated or settled account, and it will be binding on
                    both parties.
                5.	 Debtors and Creditors: Proof. The failure to object to an account ren-
                    dered is admissible in evidence as tending to prove an acknowledgment
                    of its correctness. Proof of an express promise to pay is not required.
                6.	 Debtors and Creditors: Time. A party’s retention without objection for
                    an unreasonably long time of a statement of account rendered by the
                    other party is a manifestation of assent. What constitutes an unreason-
                    ably long time is a question of fact to be answered in the light of all
                    the circumstances.
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                  CROSSMAN & HOSFORD v. HARBISON
                        Cite as 25 Neb. App. 849

 7.	 Appeal and Error. An appellate court is not obligated to engage in an
     analysis that is not necessary to adjudicate the case and controversy
     before it.

   Appeal from the District Court for Douglas County, Shelly
R. Stratman, Judge, on appeal thereto from the County Court
for Douglas County, Darryl R. Lowe, Judge. Judgment of
District Court reversed and remanded for further proceedings.

  Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Peebles, Belmont & Line, L.L.P., for appellant.

  Donald C. Hosford, Jr., of Crossman & Hosford, for
appellee.

   R iedmann and Bishop, Judges, and Inbody, Judge, Retired.

   R iedmann, Judge.
   Crossman & Hosford sought recovery for legal services
performed under an account stated theory. The county court
for Douglas County granted summary judgment in its favor,
and the judgment was affirmed by the district court. Finding
a genuine issue of material fact, we reverse the judgment and
remand the cause for further proceedings.

                  FACTUAL BACKGROUND
   Donald C. Hosford, Jr., is an attorney in Omaha, Nebraska,
practicing law under the name “Crossman & Hosford.”
Hosford alleged that he performed legal services for Jeanne
K. Moderow for some indeterminate time prior to March 8,
2012. On March 8, he sent Moderow two billing statements:
one in the amount of $1,900 for services performed for “JMJM
Properties, LLC” and one in the amount of $16,675 for work
performed for “American Marking Company.” The statements
set out a narrative listing of the services rendered, but did not
include an itemization of when the work was performed, what
it specifically included, or the amount charged for each task.
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                CROSSMAN & HOSFORD v. HARBISON
                      Cite as 25 Neb. App. 849

Hosford sent followup invoices reflecting the amounts due in
April, June, and July.
   On July 31, 2012, Moderow first responded to Hosford’s
invoices, via email. She apologized for her delayed response,
stated she was “taken aback” at the amount of the bill, and
stated that because it would be difficult to pay “all at once,”
she would send a check for $500 “in the next couple of
weeks.” She concluded by thanking him for his patience. As
promised, Moderow made her first $500 payment on August
14 and her second $500 payment on December 13. Subsequent
billings reflected these payments as deductions from the total
amount due.
   Hosford continued to bill Moderow monthly without further
response until April 2013. On April 17, Moderow sent Hosford
a letter in an effort to “avoid a ‘trainwreck.’” In that letter, she
stated, “I have concerns regarding the years it took to bill me
and the amount of the bill. In fact, if I had known your fees,
I might have made other arrangements.” Hosford responded,
via letter, noting her two payments and stating that prior to her
April 17 letter, she had never informed him of any issue with
regard to her account. He concluded, stating, “With all due
respect, such complaint comes at me too late, and after all the
effort and communication I have put forth with regard to get-
ting this resolved.”
   Moderow responded later that month, claiming that she had
been paying on the first bill for the “JMJM LLC set up.” She
claimed that the statement concerning “AMC” had her “puz-
zled.” She explained that the “bill was late (over 5 years) in
being sent. There are no itemizations or dates and the amount
is questionable.” She requested “a significant adjustment.”
Hosford denied her request and continued sending monthly
statements. Moderow made no additional payments.
             PROCEDURAL BACKGROUND
  In October 2013, Hosford filed a complaint in the county
court for Douglas County. He alleged that he had sent a
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               CROSSMAN & HOSFORD v. HARBISON
                     Cite as 25 Neb. App. 849

statement of account for legal services and costs to Moderow
and that the account was stated and agreed to between the
two of them. He further alleged payment of $1,000 by
Moderow and sought judgment for the remaining $17,575
plus prejudgment interest. Moderow filed a general denial
and affirmatively alleged that Hosford’s claim was barred by
the statute of limitations or the equitable doctrine of laches
and waiver.
   Hosford subsequently filed a motion for summary judg-
ment, which was ultimately granted. Moderow’s appeal to the
district court was unsuccessful, and she timely appealed to this
court. During the pendency of the appeal, Moderow passed
away and the appeal was revived in the name of Micaela
Harbison, personal representative of Moderow’s estate, pursu-
ant to Neb. Rev. Stat. § 25-1406 (Reissue 2016).

                 ASSIGNMENTS OF ERROR
   Moderow assigns that the district court erred in finding
no genuine issues of material fact in the claim of an account
stated. Specifically, she asserts that genuine issues of mate-
rial fact were present with regard to whether Moderow was
a proper party and whether Moderow had an understanding
of that to which she was agreeing. Moderow also assigns
that the district court erred in finding no genuine issue of
material fact as to the reasonableness of the attorney fees
charged and as to whether the claim was barred by the statute
of limitations.

                 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. Walters v. Sporer, 298 Neb.
536, 905 N.W.2d 70 (2017). In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
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               CROSSMAN & HOSFORD v. HARBISON
                     Cite as 25 Neb. App. 849

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
   [3,4] Hosford filed this action as an account stated. An
“account stated” is an agreement between persons who have
had previous dealings determining the amount due by reason of
such transactions. Sherrets, Smith v. MJ Optical, Inc., 259 Neb.
424, 610 N.W.2d 413 (2000). The general rule is that when
parties have accounts against each other, and a statement of the
account is made out by one party and presented to the other,
and the latter expressly assents to its correctness, the law will
regard it as a stated or settled account, and it will be binding
on both parties. Loy v. Storz Electric Refrigeration Co., 122
Neb. 357, 240 N.W. 423 (1932).
   [5] The initial question, therefore, is whether the billing
statements of March 8, 2012, and Moderow’s subsequent con-
duct are sufficient to establish an account stated as a matter of
law. As the party moving for summary judgment, Hosford had
the burden to prove a prima facie case of an account stated.
It is uncontroverted that Moderow did not expressly agree
to personally pay the amounts contained in the billing state-
ments; however, the failure to object to an account rendered
is admissible in evidence as tending to prove an acknowledg-
ment of its correctness. Proof of an express promise to pay is
not required. John Deere Co. of Moline v. Ramacciotti Equip.
Co., 181 Neb. 273, 147 N.W.2d 765 (1967).
   [6] Here, Moderow initially expressed surprise at the
amount of the bill, but rather than contesting it, she explained
that she would be unable to pay it “all at once.” Thirteen
months after having received the billing statements, she first
expressed “concerns” regarding the amount of the bill. As
stated in the Restatement (Second) of Contracts § 282 at 386
(1981), “A party’s retention without objection for an unrea-
sonably long time of a statement of account rendered by the
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               CROSSMAN & HOSFORD v. HARBISON
                     Cite as 25 Neb. App. 849

other party is a manifestation of assent.” But what constitutes
an unreasonably long time is a question of fact to be answered
in the light of all the circumstances. Id., comment b.
   In the present action, Hosford sent two billing statements to
Moderow. One was identified as work for “JMJM Properties,
LLC” in the amount of $1,900, and the other identified
work for “American Marking Company” in the amount of
$16,675. Neither statement indicates when the work was per-
formed, but based upon the evidence, the work for “American
Marking Company” took place more than 4 years prior to
the billing statement being sent. No fee agreement appears
in the record, and according to Moderow, one never existed.
Moreover, the parties never had any discussions as to hourly
fees or the extent of services to be rendered. It took Moderow
4 months to respond to the initial billing statement, and
although she did not object to the amount of the bill, she did
express her surprise at both the amount and the length of time
it spanned.
   Given the circumstances of the case, we cannot say as a
matter of law that Moderow’s delayed objection should be
construed as implied assent to the amount claimed by Hosford.
Although failure to object to an account rendered is admis-
sible in evidence as tending to prove an acknowledgment of
its correctness, it does not undisputedly prove correctness. And
the weight or sufficiency of such proof is a question of fact to
be determined by the fact finder. See Hendrix v. Kirkpatrick,
48 Neb. 670, 67 N.W. 759 (1896). Recognizing that Hosford
waited more than 4 years to bill Moderow, the reasonableness
of Moderow’s 13-month delay in expressly questioning the
amount of the bill is a question of fact.
   [7] Having determined that a fact question exists as to
whether Moderow agreed to the amount billed, we need not
address Moderow’s arguments that genuine issues of material
fact exist as to whether she was a proper party, the reason-
ableness of the attorney fees, or whether Hosford’s claim
is barred by the statute of limitations. An appellate court
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               CROSSMAN & HOSFORD v. HARBISON
                     Cite as 25 Neb. App. 849

is not obligated to engage in an analysis that is not neces-
sary to adjudicate the case and controversy before it. Amend
v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d
551 (2018).

                      CONCLUSION
  Because a genuine issue of material fact exists as to whether
Moderow agreed to the amount Hosford claimed was due,
summary judgment was inappropriate. We reverse the judg-
ment and remand the cause for further proceedings.
	R eversed and remanded for
	                              further proceedings.
