Monday, February 05, 2007

Nebraska Supreme Court reaffirms the "American Rule" against collecting attorney fees in judicial actions Plaintiffs who sought attorney fees could resist Defendants pleading for attorney fees in its counterclaim. Stewart v. Bennett, S-05-1100, 273 Neb. 17. In Parkert v. Lindquist, S-04-089, 269 Neb. 394 (February 25, 2005) the Nebraska Supreme Court ruled that provisions for collecting attorney fees in judicial actions were against state public policy unless the Legislature or exceptions to the "American rule" allowed it. In Stewart plaintiff tenants sought to establish a holdover tenancy to the Defendant's farm ground. Although the Plaintiffs sought attorney fees they denied they would owe attorney fees from the Defendant landowners counterclaim. Nebraska Supreme Court agrees that the Defendant's request for attorney fees from its counterclaim was void even though the Plaintiffs had asked for the same relief. The doctrine of judicial estoppel does not apply in this case because the district court never accepted the claim that the attorney fee provision was applicable. “‘absent judicial acceptance of the inconsistent position, application of the rule is unwarranted because no risk of inconsistent results exists.’” Vowers & Sons, Inc. v. Strasheim, Neb neb. at 514, 576 n.W.2d at 824

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