                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. BROOKS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

            CLINTON BROOKS, JR., APPELLEE, AND BERNARD J. GLASER, APPELLANT.


                           Filed December 22, 2015.    No. A-15-522.


       Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Reversed
and remanded with directions.
       Greg C. Harris for appellant.
       Joe Kelly, Lancaster County Attorney, and Patrick F. Condon for appellee.



       MOORE, Chief Judge, and IRwin and INBODY, Judges.
       IRWIN, Judge.
                                       I. INTRODUCTION
        Bernard J. Glaser, court-appointed counsel for Clinton Brooks, Jr., appeals from an order
of the district court determining the amount of fees and expenses allowed Glaser in connection
with his representation of Brooks in Brooks’ criminal case. We find that the district court abused
its discretion in reducing the requested fees. We therefore reverse the district court’s order and
remand the cause with directions to grant Glaser’s application for fees in full.
                                       II. BACKGROUND
        Glaser was appointed to represent Brooks in the county court for Lancaster County in
connection with a charge of theft by deception involving $500 to $1,500, a Class IV felony, in
July, 2013. Thereafter, the case was bound over to district court and an amended information was



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filed adding a charge of the unauthorized practice of law, a Class III misdemeanor. The charges
stemmed from services Brooks provided to Joshua Fitzgerald in connection with Fitzgerald’s
dissolution of marriage. The State claimed that Brooks had received money from Fitzgerald in
exchange for drafting pleadings and providing Fitzgerald with legal advice in connection with the
divorce, despite the fact that Brooks was not a licensed attorney. Following numerous pretrial
motions, the matter proceeded to a jury trial where Brooks was convicted of both counts and
sentenced to 15 to 35 months for theft by deception and a period of not less than 3 nor more than
3 months for the unauthorized practice of law.
         Following Brooks’ convictions and sentences, Glaser filed an application for attorney fees
totaling 330.1 hours and $2,341 in expenses. The court held a hearing on Glaser’s application. At
the hearing, Glaser presented an amended application for attorney fees for 253.6 hours. The parties
agree that the application was further amended to 251.1 hours, although the record is unclear about
when the additional 2.5 hour reduction occurred. In addition to the amended application for
attorney fees, Glaser presented an affidavit detailing his work on the case and testified at the
hearing. Glaser testified that Brooks was a difficult client and that Glaser had often had to spend
significant amounts of time explaining the case to him. Glaser further testified that he pursued
every legal argument Brooks asked him to, but stopped once he determined there was not a good
faith basis for proceeding. Glaser also testified that the State had shifted its theory between the
preliminary hearing and trial, requiring him to perform additional work. Furthermore, Glaser
testified that Brooks’ case had presented novel legal issues because there was little appellate case
law to consult and this made the case more complicated.
         After Glaser’s testimony, the court sua sponte introduced Exhibit 40. Exhibit 40 consists
of a list of all the payments made to court-appointed attorneys in Lancaster County from July 2014
to January 2015. It contains the date and amount of the payment, the attorney’s name, and the case
number. Glaser objected to Exhibit 40 on the basis of improper foundation and relevance. Glaser
argued that because the other cases did not involve the same charges or difficult clients like Brooks,
they were not useful comparisons. The court admitted Exhibit 40, indicating that Glaser’s
objections went to the weight of the evidence rather than its admissibility. The State presented no
evidence.
         Following the hearing, the district court entered an order awarding Glaser partial payment
of his application for attorney fees. The court analyzed Glaser’s request, noting that the case was
“relatively straightforward” and did not present difficult legal issues. The court held that the case
required a moderately skilled attorney, that Glaser assumed the entire responsibility for the case,
that Glaser exhibited a high level of care and diligence, and that Glaser was a well-respected,
experienced attorney who normally charged a higher hourly rate than the court-appointed rate of
$75 per hour. The court noted that the outcome had not been favorable to Brooks as he was found
guilty of both counts. Ultimately, the court concluded that the total request for 251.1 hours was
unreasonable. The court noted that, according to Exhibit 40, fewer than a dozen appointed cases
involved fees exceeding $3,000 during the period of July 2014 to January 2015. The court
concluded that 100 hours at $75 per hour was reasonable and approved Glaser’s request for
payment only to the extent of $7,500 worth of fees. The court also approved payment for all of the
costs Glaser had requested, a total of $2,341.
         Glaser appeals the district court’s order awarding him reduced attorney fees.


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                                 III. ASSIGNMENTS OF ERROR
       Restated and renumbered, Glaser argues that the trial court erred (1) in determining his
request for attorney fees was unreasonable and awarding him less than the full amount of his
requested fees and (2) in entering Exhibit 40 into evidence over Glaser’s objections.
                                          IV. ANALYSIS
         Glaser argues that the district court abused its discretion when it determined that his
requested fees were not reasonable and reduced the number of hours from 251.1 to 100. Glaser
also argues that the court acted as an advocate for the State when it introduced Exhibit 40 into
evidence and that the district court erred in overruling Glaser’s foundational objection to Exhibit
40. The State did not adduce any evidence to contradict the reasonableness of Glaser’s requested
fees. We find that the trial court erred in failing to award Glaser the full amount of his requested
fees.
         When attorney fees are authorized, the trial court exercises its discretion in setting the
amount of the fee, which ruling an appellate court will not disturb on appeal unless the court abused
its discretion. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). A judicial abuse of discretion
exists when the reasons or rulings of the trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters submitted for disposition. Schirber
v. State, 254 Neb. 1002, 581 N.W.2d 873 (1998).
         To determine proper and reasonable fees, it is necessary to consider the nature of the
litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill
required to properly conduct the case, the responsibility assumed, the care and diligence exhibited,
the result of the suit, the character and standing of the attorney, and the customary charges of the
bar for similar services. Id. (citing Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566
N.W.2d 750 (1997)). Where the evidence contained in the record supports the fact that the moving
party’s request for attorney fees and expenses is a reasonable request and no other contrary
evidence exists or is offered into evidence disputing reasonableness, the request for such
reasonable attorney fees and expenses must be granted. Id.; State v. Lowery, 19 Neb. App. 69, 798
N.W.2d 626 (2011).
         We first address Glaser’s argument that the trial court erred in failing to award his entire
requested fees. In Lowery, we considered a similar request for attorney fees. See id. The district
court had reduced the amount of the awarded fees for an attorney’s services in an appointed
criminal matter. Id. On appeal, we determined the attorney was entitled to the entire amount of the
fees he had requested. Id. We noted that the evidence in the record supported the attorney’s request
as being reasonable and that the State had not introduced any evidence to dispute the fees’
reasonableness. Id. We therefore reversed and ordered the district court to award the entire amount
of requested fees. Id.
         Similarly, the evidence in the record before us supports the reasonableness of Glaser’s
requested fees. Glaser testified that Brooks was a difficult client and that Glaser had pursued every
request Brooks made that was supported by a good faith basis. Glaser also testified that the novelty
of the legal issues required additional work and that the State had changed its theory before trial,
requiring further preparation on his part.



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        The only potentially contradictory evidence to the reasonableness of Glaser’s requested
fees was Exhibit 40, the list of fees paid to appointed attorneys in other cases that the court
introduced sua sponte at the hearing. Glaser argues that the exhibit should not have been received.
However, because we determine the evidence had no probative value, we need not reach the issue
of whether the court properly received the exhibit or not.
        There are two components to relevant evidence: materiality and probative value. State v.
Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992). The Nebraska Supreme Court has explained the
distinction:
                Materiality looks to the relation between the propositions for which the evidence is
        offered and the issues in the case. If the evidence is offered to help prove a proposition
        which is not a matter in issue, the evidence is immaterial. . . .
                The second aspect of relevance is probative value, the tendency of evidence to
        establish the proposition that it is offered to prove. . . . [E]vidence that affects the
        probability that a fact is as a party claims it to be has probative force. . . . Such evidence
        often is said to have “logical relevance,” while evidence lacking in probative value may be
        condemned as “remote” or “speculative.”

Id. at 457-58, 482 N.W.2d at 576 (quoting McCormick on Evidence § 185 (John W. Strong 4th
ed. 1992)).
        Here, assuming without deciding that Exhibit 40 was properly before the court, it had no
probative value. The list of fees paid in other cases lacked necessary details, including the nature
of the other cases, the time and labor required, the novelty and difficulty of the questions raised,
the skill required to properly conduct the cases, the responsibility assumed, the care and diligence
exhibited, the result of the suits, the character and standing of the attorneys, and the customary
charges of the bar for similar services. See Schirber, supra. It is impossible to make any useful
comparison of reasonableness when the very factors necessary to assess reasonableness are absent.
Any conclusion drawn from a comparison between the fees in Exhibit 40 and Glaser’s requested
fees would be remote or merely speculative. See Dixon, supra. We conclude that Exhibit 40 did
not contain sufficient information to affect the probability that Glaser’s requested fees were either
reasonable or unreasonable. See id. In other words, Exhibit 40 had no probative value.
        Having determined that Exhibit 40 had no probative value, there remains no other evidence
in the record to contradict the reasonableness of Glaser’s requested fees. The State did not adduce
any evidence at the hearing and the remaining evidence consisted of Glaser’s testimony and
exhibits supporting the reasonableness of the fees. Glaser’s request for fees is both reasonable and
uncontradicted and therefore must be granted. See Schirber, supra; Lowery, supra.
                                        V. CONCLUSION
        Because the record demonstrates that Glaser’s application for attorney fees and expenses
was reasonable, and no evidence was offered to the contrary, the district court erred in reducing
the requested fees. We therefore reverse the district court’s order and remand the cause with
directions to grant Glaser’s amended application for attorney fees for 251.1 hours and expenses.
                                                    REVERSED AND REMANDED WITH DIRECTIONS.



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