Burnison v. Johnston

action, but involved Robert’s attempts to nullify the claimed
encumbrances. Alternatively, she argues that Robert’s plead-
ings do not reflect the existence of any encumbrances, because
it was Shirley who cross-complained for the encumbrance
and Robert who denied the existence of the encumbrances in
his answer.
Robert claims that he correctly pleaded the shares that the
court ultimately confirmed and that the court was correct in
awarding his entire attorney fees. He argues that before the
court could confirm the sale, it had to address Shirley’s con-
struction lien. We agree.
[5] When an attorney fee is authorized, the fee is left to the
trial court’s discretion, and we will not disturb its ruling on
appeal absent an abuse of discretion.10 For steering the partition
action to a confirmed sale, the district court awarded Robert the
entire amount of his attorney fees, $1,636.19. We do not find
this to be an abuse of discretion.
A ffirmed.
miller-lermAn, J., participating on briefs.
10 See id.
mAry Burnison, AppellAnt, v.
KAthleen Johnston, Appellee .
764 N.W.2d 96
Filed April 17, 2009. 	No. S-08-406.
1. Actions: Parties: Standing. Whether a party who commenced an action had stand-
ing and was therefore the real party in interest presents a jurisdictional issue.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does
not involve a factual dispute presents a question of law, which an appellate court
independently decides.
3. Contracts: Assignments: Intent: Public Policy. A contractual right to the bene-
fit of a promise cannot be assigned if the obligor reasonably intended for the
right to be exercised only by the party with whom it contracted. The rule usually
applies when a promise involves a relationship of personal trust or confidence
or the obligor has expectations of counterperformance. Otherwise, contractual
rights are generally assignable unless the terms validly preclude assignment or
the assignment is contrary to statute or public policy.
622 	277 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

4. Contracts: Assignments: Intent. A right to receive money under a contract may
be assigned unless there is something in the terms of the contract manifesting the
intention of the parties that it shall not be assigned.
5. Malpractice: Attorney and Client: Public Policy: Claims: Assignments. public
policy does not prohibit an attorney’s assignment of a claim for unpaid legal fees
simply because a client might raise malpractice defenses.
Appeal from the District Court for Sarpy County: WilliAm
B. ZAsterA, Judge. Reversed and remanded with directions.
William M. Lamson, Jr., and Craig F. Martin, of Lamson,
Dugan & Murray, L.L.p., for appellant.
Ronald e. Reagan, of Reagan Law Offices, p.C., L.L.O.,
for appellee.
Wright, C onnolly, gerrArd, stephAn, mCC ormACK, and
miller-lermAn, JJ.
C onnolly, J.
SUMMARY
We are asked to decide whether a law firm can assign its right
to collect unpaid legal fees. The law firm assigned its claim to
the appellant, Mary burnison. burnison filed an action seek-
ing recovery of the fees from the appellee, kathleen Johnston,
and in response, Johnston raised several defenses. After trial,
the district court dismissed burnison’s claims because it con-
cluded that she lacked standing to bring the action. The court
reasoned that the law firm had impermissibly assigned per-
sonal legal services. We reverse, and remand with directions
because the law firm did not assign a duty to perform legal
services. We further conclude that public policy does not bar
assignment of a right to collect unpaid legal fees.
bACkGROUND
Since 1994, the law firm Martin & Martin, p.C., had pro-
vided legal services to Johnston and her husband regarding
their real estate holdings. In October 2001, the firm assigned
to burnison “all right, title, and interest in any cause of action
arising from legal services that MARTIN & MARTIN, p.C.
rendered to . . . Johnston[,] at her request from May 1, 1996
through February 25, 1998.”
bURNISON v. JOHNSTON 	623
Cite as 277 Neb. 622

burnison filed a complaint against Johnston, seeking recov-
ery of unpaid legal fees for services provided by the assignor.
She alleged breach of oral contract and quantum meruit theo-
ries of recovery. burnison alleged that (1) the firm had per-
formed legal services for Johnston in 1996 and 1997; (2) she
only sporadically paid for some of these services; and (3)
despite demand for payment, she owed $76,323 in legal fees
and $32,918 in interest.
In her answer, Johnston denied that burnison was the real
party in interest or that any contract existed between her and
the firm. Her answer included a litany of affirmative offenses.
She alleged that (1) the firm’s services were provided for
another party; (2) the claims for payment resulted from fraud;
and (3) the statute of limitations barred the claims. She admit-
ted that the firm had performed work for her. but she alleged
that (1) its legal work violated the law and ethical standards
for attorneys; (2) its performance was contrary to the standard
of professional care for attorneys in Nebraska; and (3) the firm
“fraudulently performed” because the attorneys had advised
her to take actions that were illegal and which subjected her
to legal liability and loss of property. She also alleged that
the firm had fraudulently listed charges and payment on her
account to defeat the statute of limitations.
At trial, the parties stipulated that the firm’s hourly rate was
fair. but Johnston disputed whether the firm provided services
for her and whether the services were of any value to her. In
addition, she contended that some of the assignor’s actions
were unethical, which she alleged precluded the assignee’s
recovery of unpaid legal fees.
In its order, the court concluded that burnison lacked stand-
ing as an assignee to seek recovery of the unpaid legal fees.
It ruled that the assignment upon which she relied was an
improper attempt to assign personal legal services. It reasoned
that the language in the firm’s assignment to burnison was
too broad because it assigned a cause of action instead of an
unpaid fee.
ASSIGNMeNT OF eRROR
burnison assigns that the district court erred in ruling that a
claim for the collection of legal fees is nonassignable.
624 	277 NebRASkA RepORTS

STANDARD OF ReVIeW
[1,2] The court determined that because the firm’s claim was
nonassignable, burnison did not have standing in the action.
In other words, it determined that she was not the real party
in interest.1 Whether a party who commenced an action had
standing and was therefore the real party in interest presents a
jurisdictional issue.2 A jurisdictional issue that does not involve
a factual dispute presents a question of law, which we indepen-
dently decide.3
ANALYSIS
burnison contends that Nebraska law permits an assign-
ment of a claim for unpaid legal fees and that our cases on
the nonassignability of malpractice claims are not controlling.
She argues that none of the public policy considerations that
prohibit the assignment of legal malpractice claims are present
when an attorney assigns a claim to collect unpaid legal fees
for services already provided. She distinguishes a legal mal-
practice claim as a tort action resting on the attorney’s personal
fiduciary duty to provide professional services to a client. She
argues that in contrast to a malpractice claim, a claim to collect
unpaid legal fees is a contract action that does not involve a
duty to provide personal services. In brief, she argues that “the
duty to professionally provide legal services is personal; the
duty to pay for that service which has already been performed
is not.”4
At the outset, we note that a likely stumbling block here
was the failure of our case law to consistently use the proper
terminology 	to 	discuss 	the 	transfer 	of 	contractual 	rights
and duties. Unless a party transfers both its rights and its
duties under a contract, it is important to distinguish between
the assignment of contractual rights and the delegation of
1 See Stevens v. Downing, Alexander, 269 Neb. 347, 693 N.W.2d 532
(2005).
2 See id.
3 See id.
4 brief for appellant at 9 (emphasis omitted).
bURNISON v. JOHNSTON 	625
Cite as 277 Neb. 622

performance of a duty.5 Although the court stated that the firm
had impermissibly attempted to assign personal legal services,
it apparently meant that the firm had impermissibly attempted
to delegate performance of its duty to provide legal services.
but this case does not involve delegation of performance of
a duty under a contract for personal services. And Johnston
admits that the firm did not delegate any obligation to per-
form legal services for her. We conclude that the district court
erred in finding that the firm had attempted to delegate per-
formance of its duty to provide legal services. Here, the firm
assigned only its contractual right to receive Johnston’s pay-
ment for services rendered. but Johnston argues that public
policy prohibited the firm’s assignment and that we should
therefore affirm the court’s judgment even if its reasoning
was incorrect.6
[3] We have held that a contractual right to the benefit of a
promise cannot be assigned if the obligor reasonably intended
for the right to be exercised only by the party with whom it
contracted. The rule usually applies when a promise involves
a relationship of personal trust or confidence or the obligor
has expectations of counterperformance.7 Otherwise, contrac-
tual rights are generally assignable unless the terms validly
preclude assignment or the assignment is contrary to statute or
public policy.8
[4] In Peterson v. Hynes,9 we affirmed a party’s right to
assign a claim for unpaid fees under a contract to provide
5 See, Restatement (Second) of Contracts §§ 317 and 318 (1981); 3 e. Allan
Farnsworth, Farnsworth on Contracts § 11.1 (3d ed. 2004).
6 See In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006).
7 See Schupack v. McDonald’s System, Inc., 200 Neb. 485, 264 N.W.2d 827
(1978). See, also, 29 Samuel Williston, A Treatise on the Law of Contracts
§ 74:10 (Richard A. Lord ed., 4th ed. 2003).
8 See, Eli’s, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999); Schupack,
supra note 7; Aronsohn v. Mandara, 98 N.J. 92, 484 A.2d 675 (1984);
International Collectors v. Mazel Co., 48 Wash. App. 712, 740 p.2d
363 (1987). Accord, Restatement, supra note 5, § 317; Williston, supra
note 7.
9 Peterson v. Hynes, 220 Neb. 573, 371 N.W.2d 664 (1985).
626 	277 NebRASkA RepORTS

personal services. There, the buyers of stock in a bank holding
company promised in an addendum to the purchase agree-
ment that they would hire the sellers as consultants and pay
them specified fees for a defined period. but the buyers never
allowed the sellers to provide consulting services and paid
them only a fraction of the promised fees. The sellers assigned
their claim to recover the unpaid fees under the agreement. On
appeal, the buyers argued that they were not liable because the
sellers could not assign their contractual rights. We noted that
the sellers had not delegated their obligation to perform con-
sulting services. We held that a right to receive money under a
contract may be assigned
“unless there is something in the terms of the contract
manifesting the intention of the parties that it shall not
be assigned. This is true of money due or to become due
under a contract involving personal skill, service, or con-
fidence; the party who has performed such obligations, or
who has contracted to do so, may assign his right to the
money earned or which he is to earn, although the con-
tract itself is not assignable.”10
Johnston acknowledges our holding in Peterson. but she
contends that the firm’s assignment was against public policy.
She argues that burnison must prove the value of the firm’s
services and its compliance with professional responsibility
requirements.11 because she has malpractice defenses to the
firm’s claim for unpaid fees, she argues that the same public
policy concerns that prohibit the assignment of attorney mal-
practice claims apply here. We disagree.
Johnston cites no case holding that such an assignment
violates public policy. It is true that an assignee’s rights
are no greater than the assignor’s12 and that burnison must
prove the value of its services and compliance with profes-
sional standards. And it is not uncommon for clients to allege
10 Id. at 577, 371 N.W.2d at 667, quoting 6 Am. Jur. 2d Assignments § 16
(1963). See, also, Restatement, supra note 5, § 317, comment d.
11 See Hauptman, O’Brien v. Turco, 273 Neb. 924, 735 N.W.2d 368 (2007).
12 Mid-America Appliance Corp. v. Federated Finance Co., 172 Neb. 270,
109 N.W.2d 381 (1961).
bURNISON v. JOHNSTON 	627
Cite as 277 Neb. 622

counterclaims of legal malpractice in response to actions to
recover unpaid legal fees.13 but Johnston’s reliance on the pub-
lic policy reasons for prohibiting the assignment of tort claims
for legal malpractice is misplaced. Assignments of malpractice
claims are prohibited to avoid undermining the duty of con-
fidentiality and other professional duties that arise from the
client-attorney relationship.14 Those public policy concerns are
not present here.
[5] As burnison points out, we have previously affirmed a
money judgment against a firm’s former client in an action
brought by a bank after the firm assigned all its accounts
receivable to the bank as security for a loan.15 Johnston, how-
ever, argues that the defendant did not raise the assignment’s
validity. but we would have addressed the jurisdictional issue
of standing if we had considered the assignment invalid.16 We
conclude that public policy does not prohibit an attorney’s
assignment of a claim for unpaid legal fees simply because a
client might raise malpractice defenses. Johnston’s defenses
against the assigned claim are not defenses against the assign-
ment itself and did not prevent burnison from attempting to
enforce her interest.17
Finally, we reject Johnston’s contention that the firm assigned
more than a claim to collect unpaid legal fees. Johnston does
not identify any other cause of action that would have sup-
ported burnison’s claim to recover a money judgment from
13 See, e.g., Manci v. Ball, Koons & Watson, 995 So. 2d 161 (Ala. 2008);
Wolfe v. Wolf, 375 Ill. App. 3d 702, 874 N.e.2d 582, 314 Ill. Dec. 486
(2007); Zabin v. Picciotto, 73 Mass. App. 141, 896 N.e.2d 937 (2008);
Kutner v. Catterson, 56 A.D.3d 437, 867 N.Y.S.2d 156 (2008); Riley v.
Montgomery, 11 Ohio St. 3d 75, 463 N.e.2d 1246 (1984).
14 See, North Bend Senior Citizens Home v. Cook, 261 Neb. 500, 623 N.W.2d
681 (2001); Earth Science Labs. v. Adkins & Wondra, P.C., 246 Neb. 798,
523 N.W.2d 254 (1994). See, also, Gurski v. Rosenblum and Filan, LLC,
276 Conn. 257, 885 A.2d 163 (2005); Kracht v. Perrin, Gartland & Doyle,
219 Cal. App. 3d 1019, 268 Cal. Rptr. 637 (1990); Annot., 40 A.L.R.4th
685 (1985).
15 See Vistar Bank v. Thompson, 253 Neb. 166, 568 N.W.2d 901 (1997).
16 See In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
17 See Vistar Bank, supra note 15.
628 	277 NebRASkA RepORTS

Johnston apart from her alleged failure to pay money owed for
legal services.18
We conclude that the district court erred in concluding that
burnison lacked standing because the firm had impermissi-
bly attempted to delegate personal legal services. We further
conclude that public policy does not prohibit an attorney’s
assignment of a claim for unpaid legal fees when the former
client defends with allegations of malpractice. Accordingly,
we reverse the judgment of the district court and remand the
cause with directions to the district court to make the necessary
findings of fact and conclusions of law and decide the remain-
ing issues.
reversed And remAnded With direCtions.
heAviCAn, C.J., not participating.
18 See, generally, Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
bURNISON v. JOHNSTON 	629
Cite as 277 Neb. 622