Echo Group v. Tradesmen Internat. , 312 Neb. 729 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2022 09:04 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729Echo Group, Inc., appellee and cross-appellant, v.
Tradesmen International, an Ohio corporation,
appellee, and Lund-Ross Constructors, Inc.,
a Nebraska corporation, intervenor-
appellant and cross-appellee.
Echo Group, Inc., appellee and cross-appellant, v.
The Historic Florentine, LLC, a Nebraska limited
liability company, and Midwest Protective
Services, Inc., appellees, and Lund-Ross
Constructors, Inc., a Nebraska corporation,
intervenor-appelllant and cross-appellee.
Echo Group, Inc., appellee and cross-appellant, v.
The Duke of Omaha, LLC, a Georgia limited
liability company, Great Western Bank and
Midwest Protection Services, Inc., appellees,
and Lund-Ross Constructors, Inc.,
a Nebraska corporation, intervenor-
appellant and cross-appellee.
___ N.W.2d ___
Filed October 28, 2022. Nos. S-21-729, S-21-730, S-21-770.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 7293. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law which an appellate court reviews independently of the lower
court.
4. Liens: Foreclosure: Equity. An action to foreclose a construction lien
is one grounded in equity.
5. Equity. The maxim “equity follows the law” in its broad sense means
that equity follows the law to the extent of obeying it and conforming to
its general rules and policies whether contained in common law or stat-
ute. This maxim is strictly applicable whenever the rights of the parties
are clearly defined and established by law.
6. ____. Equitable remedies are generally not available where there exists
an adequate remedy at law.
7. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
8. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
purposes of summary judgment.
9. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
10. Principal and Surety: Bonds: Liens. The function of the surety bond
under Neb. Rev. Stat. § 52-142 (Reissue 2021) is to release the property
from the lien and to transfer the claimant’s rights from the property to
the surety bond.
11. Stipulations: Parties. The general rule is that parties are bound by
stipulations voluntarily made.
12. Principal and Surety: Liability. In the absence of a condition extend-
ing his or her liability, a surety cannot be held liable for more than the
penal sum named.
13. Prejudgment Interest: Appeal and Error. Awards of prejudgment
interest are reviewed de novo.
14. Prejudgment Interest. Neb. Rev. Stat. §§ 45-103.02 and 45-104
(Reissue 2021) provide alternate and independent means of recovering
prejudgment interest.
15. ____. Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021) authorizes the
recovery of prejudgment interest on liquidated claims.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 72916. ____. When a claim is of the types enumerated in Neb. Rev. Stat.
§ 45-104 (Reissue 2021), then prejudgment interest may be recovered
without regard to whether the claim is liquidated.
17. Appeal and Error. The district court cannot commit error in resolving
an issue never presented and submitted to it for disposition.
18. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2021) applies
to four types of judgments: (1) money due on any instrument in writing;
(2) settlement of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained without the
owner’s consent, express or implied, from the receipt thereof; and (4)
money loaned or due and withheld by unreasonable delay of payment.
19. Prejudgment Interest: Liens: Foreclosure. An award of prejudgment
interest in an action to foreclose a construction lien is authorized under
Neb. Rev. Stat. § 45-104 (Reissue 2021).
20. Statutes: Words and Phrases. As a general rule, the word “shall” in
a statute is considered mandatory and is inconsistent with the idea of
discretion.
21. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
awarding or denying attorney fees will be upheld absent an abuse of
discretion.
22. Attorney Fees. Attorney fees and expenses may be recovered in a civil
action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of
attorney fees.
23. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
24. Statutes: Intent. In construing a statute, the court must look at the
statutory objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose.
25. Appeal and Error. Absent plain error, an appellate court considers only
an appellant’s claimed errors that the appellant specifically assigns in a
separate “assignment of error” section of the brief and correspondingly
argues in the argument section.
26. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
Appeals from the District Court for Douglas County: J.
Michael Coffey, Leigh Ann Retelsdorf, and Duane C.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729Dougherty, Judges. Judgment in No. S-21-729 affirmed and
in part reversed, and cause remanded with direction. Judgment
in No. S-21-730 affirmed in part and in part reversed, and
cause remanded with direction. Judgment in No. S-21-770
affirmed in part, and in part reversed.
David S. Houghton and Justin D. Eichmann, of Houghton,
Bradford & Whitted, P.C., L.L.O., for appellant.
Cathy S. Trent-Vilim and Craig F. Martin, of Lamson,
Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
These three cases consolidated for appeal involve foreclo-
sures of construction liens under the Nebraska Construction
Lien Act (Act). 1 The appeals present three primary issues:
whether equitable considerations make summary judgment
improper, whether prejudgment interest is authorized, and
whether attorney fees are recoverable.
Because there was no dispute that the supplier complied
with the provisions of the Act and equity follows the law, we
affirm the entry of summary judgment in each case.
We conclude that the claims were liquidated, and thus, an
award of prejudgment interest was authorized. Because the
court in two cases erred by not awarding prejudgment inter-
est, we reverse the denial and remand to award such interest in
conformity with this opinion.
Finally, we conclude that under the circumstances, there was
no statutory authorization for an award of attorney fees. Thus,
we reverse in part the judgment in two cases awarding attorney
fees.
1
Neb. Rev. Stat. §§ 52-125 to 52-159 (Reissue 2021).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729II. BACKGROUND
1. Overview
We begin with a broad overview. These appeals arose from
three construction-related projects. A general contractor entered
into agreements with a subcontractor for performance of elec-
trical work, and the subcontractor obtained electrical materials
and equipment from a supplier. When the subcontractor failed
to pay the supplier, the supplier filed construction liens. The
supplier then sued the property owners to foreclose on the
liens. The general contractor posted lien release bonds and
intervened. Ultimately, the district court—through a different
judge in each of the three cases—entered summary judgment
in favor of the supplier. Two judgments overruled requests for
prejudgment interest, one overruled a request for attorney fees,
and one awarded both prejudgment interest and fees. These
appeals followed.
2. Parties and Contracts
With that general understanding, we fill in the details. The
general contractor, Lund-Ross Constructors Co. (Lund-Ross),
was hired for the three projects involved in these appeals. The
projects consisted of renovating common space at a senior liv-
ing center, revamping an old apartment building into new apart-
ments, and constructing a new apartment project, respectively.
Lund-Ross entered into contracts with Signature Electric,
LLC (Signature), doing business as D&J Electric, for the per-
formance of electrical work on the projects. Signature entered
into agreements with Echo Group (Echo) to obtain electrical
materials and equipment.
Generally, the subcontracts between Lund-Ross and
Signature specified that Signature had the responsibility to pay
all amounts owed to any suppliers it engaged. The subcontracts
obligated Signature to furnish satisfactory evidence to Lund-
Ross, “when and if required,” that it did so. To receive monthly
progress payments, Signature had to provide Lund-Ross with a
completed lien waiver for all prior months’ progress payments.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 7293. Progress Payments
Signature submitted monthly pay applications to Lund-Ross,
requesting monthly progress payments for work completed
and supplies purchased. Lund-Ross would remit payment to
Signature, less an applicable retainage amount. Once Signature
received payment, it submitted a partial lien waiver to Lund-
Ross, attesting to Signature’s payment of all suppliers up to the
date of the lien waiver.
According to Lund-Ross’ president, the lien waivers were
of “critical importance.” He explained that if Signature did not
provide lien waivers for the previous month attesting to pay-
ment of suppliers, “Lund-Ross would then have known that
there was a problem with Signature’s payment of suppliers and
Lund-Ross could have stopped making payments to Signature
and made other arrangements to pay Signature’s suppliers . . .
directly or take other action to protect itself.”
4. Construction Liens and Lawsuits
In July 2019, Signature abruptly ceased operations.
The next month, and in accordance with the Act, Echo
recorded a construction lien in the office of the Douglas County
register of deeds in each case in the amounts of $11,604.46,
$32,781.03, and $296,407.73, respectively.
Echo presented demands to Lund-Ross for payment with
respect to electrical supplies it furnished to Signature. Having
received no payments, Echo filed lawsuits against the property
owners to foreclose on the construction liens. The complaints
also alleged unjust enrichment. Lund-Ross posted a surety
bond in each case and moved to intervene.
After the court allowed Lund-Ross to intervene, Lund-Ross
filed an answer setting forth numerous affirmative defenses.
Among the affirmative defenses, Lund-Ross identified equi-
table doctrines of waiver, estoppel, laches, and unclean hands.
Lund-Ross stipulated to the dismissal of each property owner.
In case No. S-21-729, Lund-Ross stipulated that any judgment
would be satisfied “by Lund-Ross or its bond.” Similarly, in
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729case No. S-21-770, Lund-Ross stipulated that a final judgment
would be satisfied “by Lund[-]Ross and/or its bond.”
Echo subsequently moved for summary judgment. As dis-
cussed in more detail below, the court sustained the motion in
each case.
5. District Court Judgments
The court entered summary judgment in Echo’s favor on the
foreclosure of a construction lien claim in each case. Thus, in
case No. S-21-729, the court entered judgment in the amount
of $11,604.46 against the bond posted by Lund-Ross, together
with costs and postjudgment interest. In case No. S-21-730,
the court entered judgment against the bond in the amount
of “$32,871.03” (transposing the lien amount of $32,781.03),
together with costs, attorney fees, and postjudgment interest.
In case No. S-21-770, the court entered summary judgment
against Lund-Ross in the amount of $296,407.73, plus prejudg-
ment and postjudgment interest, costs, and attorney fees.
The orders further disposed of Echo’s claims for unjust
enrichment. In case No. S-21-729, the court found that claim
should be dismissed with prejudice. In case No. S-21-730, the
court sustained Echo’s motion to dismiss that claim. And in
case No. S-21-770, having determined that summary judgment
was appropriate on the lien foreclosure claim, the court found
it unnecessary to consider Echo’s unjust enrichment claim.
Additional findings by the district court will be set forth as
necessary in the analysis.
Lund-Ross filed a timely appeal in each case. The Nebraska
Court of Appeals sustained Lund-Ross’ motion to consolidate
the appeals, and we subsequently moved them to our docket. 2
III. ASSIGNMENTS OF ERROR
Lund-Ross assigns five errors. In all three cases, it alleges
that the district court erred in determining that no genuine issue
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729of material fact existed and in granting Echo summary judg-
ment on its claims for construction lien foreclosure.
In two cases—cases Nos. S-21-730 and S-21-770—Lund-
Ross alleges that the court erred in granting judgment in an
amount greater than the surety bond posted by Lund-Ross.
In case No. S-21-770 only, Lund-Ross alleges that the court
erred in (1) entering judgment for the excess amount directly
against Lund-Ross, (2) awarding Echo prejudgment interest on
its claim for construction lien foreclosure, and (3) awarding
Echo attorney fees not actually incurred in pursuit of Echo’s
claim in the action pending before it.
On cross-appeal, Echo assigns that the court erred in cases
Nos. S-21-729 and S-21-730 by denying prejudgment interest.
It further assigns that the court erred in case No. S-21-729 by
denying attorney fees.
IV. STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 3 In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 4
[3] Statutory interpretation presents a question of law which
an appellate court reviews independently of the lower court. 5
These standards are central to our review. We set forth other
applicable standards in the analysis.
3
Elbert v. Young, ante p. 58, 977 N.W.2d 892 (2022).
4
Id.5
Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729V. ANALYSIS
1. Summary Judgment
Lund-Ross argues that the district court erred in granting
summary judgment in three ways. In all three appeals, Lund-
Ross claims that the court erred in entering summary judgment
on the construction lien foreclosure claim without “balancing
the equities.” 6 In cases Nos. S-21-730 and S-21-770, Lund-
Ross alleges the court erred by entering summary judgment in
an amount greater than the surety bond it posted to release the
real estate from the construction lien. In case No. S-21-770,
Lund-Ross claims error with respect to the entry of judgment
for the excess amount directly against Lund-Ross.
(a) Balancing of Equities
With regard to summary judgment on the construction lien
foreclosure claims, Lund-Ross does not dispute that Echo
complied with the statutory requirements of the Act. But Lund-
Ross argues that “the grant of such an equitable remedy also
requires the trial court to first balance any equities supported
by the parties’ evidence.” 7
[4] It bases its argument on case law stating that an action
to foreclose a construction lien is one grounded in equity. 8
From this general characterization of the nature of a construc-
tion lien foreclosure proceeding, it reasons that a balancing of
equities—which, it argues, is inherent in an equity action—pre-
cludes granting summary judgment.
No Nebraska case law has addressed balancing of equities
in a lien foreclosure action. Recognizing the same, Lund-Ross
directs our attention to two cases to support its argument.
6
Brief for appellant at 22.
7
Id. at 21.
8
See, e.g., Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020); Lincoln
Lumber Co. v. Lancaster, 260 Neb. 585, 618 N.W.2d 676 (2000); Franksen
v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794 (1994).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729One case, an unpublished decision of the Iowa Court of
Appeals, 9 involved a trial court’s refusal to foreclose on a
mechanic’s lien based on equitable principles. The trial court
had concluded that the contractor was largely responsible for
creating the dispute due to its confusing and inaccurate billing.
The Court of Appeals reasoned that although the contractor met
the statutory requirements to foreclose on its lien, the appel-
late court had broad discretion in determining an equitable
remedy and could consider the hardship its orders would cause
the defendant.
The other case, a Nebraska case, involved whether to grant
equitable relief in connection with allegations of ultra vires
acts by insurance company officers. 10 There, we stated that
“[i]n balancing equities, [a court] must take into consideration
the good that may be done to those who have been wronged,
against the evil that may befall innocent persons.” 11 After
noting that “if the plaintiff can be readily compensated in dam-
ages,” we stated that “[c]ourts will balance equities and, where
they are equal or predominate against him who seeks relief,
equity will follow that rule.” 12
Neither case persuades us that the possibility of balancing
equities in fashioning relief precludes a court from employ-
ing a summary judgment, at least where there are no factual
disputes. The Nebraska precedent, in particular, differs signifi-
cantly from the case before us. There, the plaintiffs primarily
sought and received injunctive relief requiring that bonds and
money removed from a fraternal benefit corporation and paid
to an insurance company organized by officers of the frater-
nal benefit corporation be returned to that corporation, and
9
Olmstead Construction, Inc. v. Otter Creek Investments, LLC, No. 18-1186,
2019 WL 4678167 (Iowa App. Sept. 25, 2019) (unpublished opinion listed
in table of “Decisions Without Published Opinions” at 940 N.W.2d 44(2019)).
10
See Folts v. Globe Life Ins. Co., 117 Neb. 723, 223 N.W. 797 (1929).
11
Id. at 745, 223 N.W. at 806.
12
Id.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729precluding the individuals and corporate entities from using
the fraternal benefit corporation’s goodwill, property, or orga-
nization in the business of the insurance company. While an
action for injunction sounds in equity 13 and an action to fore-
close a construction lien is one grounded in equity, 14 the simi-
larity ends there. In Nebraska, construction liens are largely
governed by the Act.
[5,6] Long-established principles require a court in equity
to implement these statutory provisions. The maxim “equity
follows the law” in its broad sense means that equity follows
the law to the extent of obeying it and conforming to its gen-
eral rules and policies whether contained in common law or
statute. 15 This maxim is strictly applicable whenever the rights
of the parties are clearly defined and established by law. 16 And
equitable remedies are generally not available where there
exists an adequate remedy at law. 17 That is the case here. The
Act sets forth a comprehensive statutory structure. By asking
this court to balance the equities with respect to Echo’s fore-
closure requests, Lund-Ross seeks to inject something new into
the Act.
[7] Even if it were appropriate to do so, Lund-Ross did not
meet its burden to show the existence of a material issue of
fact. The party moving for summary judgment must make a
prima facie case by producing enough evidence to show that
13
County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020).
14
Goes v. Vogler, supra note 8.
15
Guy Dean’s Lake Shore Marina v. Ramey, 246 Neb. 258, 518 N.W.2d
129 (1994). See, also, Wisner v. Vandelay Investments, 300 Neb. 825, 916
N.W.2d 698 (2018); Fisher v. Heirs & Devisees of T.D. Lovercheck, 291
Neb. 9, 864 N.W.2d 212 (2015); Jeffrey B. v. Amy L., 283 Neb. 940, 814
N.W.2d 737 (2012); Doksansky v. Norwest Bank Neb., 260 Neb. 100, 615
N.W.2d 104 (2000); Henry v. Rockey, 246 Neb. 398, 518 N.W.2d 658(1994).
16
Guy Dean’s Lake Shore Marina v. Ramey, supra note 15; Wisner v.
Vandelay Investments, supra note 15; Jeffrey B. v. Amy L., supra note 15;
Doksansky v. Norwest Bank Neb., supra note 15.
17
Wisner v. Vandelay Investments, supra note 15.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729the movant is entitled to judgment if the evidence were uncon-
troverted at trial. If the party moving for summary judgment
makes a prima facie case, the burden shifts to the nonmovant
to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law. 18 Echo met
its initial burden, but Lund-Ross failed to meet its respon-
sive burden.
Lund-Ross did not produce evidence to raise a genuine issue
of material fact as to the equitable defenses it raised. There
is no evidence that Echo had an obligation to bring payment
issues to the attention of Lund-Ross or the property owner. Nor
is there evidence that Lund-Ross asked for lien waivers from
any of the suppliers. Although Lund-Ross asserts that Echo
“slept on [its] rights and waited over the course of more than
half [a] year to make [its] claim,” 19 Echo timely filed its liens
and sought foreclosure in accordance with the provisions of
the Act.
[8] At oral argument, Lund-Ross asserted that the equitable
considerations it advanced should be heard at trial. It explained
that a trial would allow a fuller exploration and further devel-
opment of facts. But the time to show a genuine dispute regard-
ing any material fact was at the summary judgment stage. At
that stage, Lund-Ross could produce “depositions, answers to
interrogatories, admissions, stipulations, and affidavits” 20 to
support its equitable defenses. Instead, Lund-Ross essentially
relied on inferences based on speculation. Conclusions based
on guess, speculation, conjecture, or a choice of possibilities
do not create material issues of fact for purposes of sum-
mary judgment. 21
As noted, there is no dispute that Echo complied with the
statutory requirements of the Act with respect to its con-
struction lien foreclosure claims. The district court correctly
18
Ag Valley Co-op v. Servinsky Engr., supra note 5.
19
Brief for appellant at 28.
20
Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020).
21
Ag Valley Co-op v. Servinsky Engr., supra note 5.
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729followed the law and had no need in this instance to “balance
any equities.”
(b) Award Greater Than Surety Bond
Lund-Ross argues that in cases Nos. S-21-730 and S-21-770,
the district court erred by entering judgment in excess of the
surety bond. Lund-Ross contends that the Act defines the rem-
edy for a successful lien claim. So we turn to the Act.
The Act speaks to the procedure to release a lien. Under
§ 52-142(1)(a), a person may release real estate from a lien
by depositing “money in cash, certified check, or other bank
obligation, or a surety bond . . . , in an amount sufficient to pay
the total of the amounts claimed in the liens being released plus
fifteen percent of such total.” Upon such release, “the claim-
ant’s rights are transferred from the real estate to the deposit or
surety bond.” 22 Once the court determines the claim, it “shall
order the clerk of the district court to pay the sums due or ren-
der judgment against the surety company on the bond, as the
case may be.” 23 Lund-Ross homes in on the latter language,
contending that “the limit of any possible recovery by Echo . . .
is a judgment rendered against the surety company on the bond
deposited.” 24 It asserts, without citation to authority, that the
total judgment cannot exceed the bond amount. We disagree.
[9] The plain language of the Act does not contain a limit
on the amount of recovery. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. 25 The Act pro-
vides that a person furnishing materials has a construction lien
“to secure the payment of his or her contract price.” 26 Contract
22
§ 52-142(3).
23
Id.
24
Brief for appellant at 30.
25
In re Guardianship of Jill G., ante p. 108, 977 N.W.2d 913 (2022).
26
§ 52-131(1).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729price is defined as “the amount agreed upon by the contract-
ing parties for performing services and furnishing materials
covered by the contract” as increased or diminished by certain
matters; however, “[i]f no price is agreed upon by the con-
tracting parties, contract price shall mean the reasonable value
of all services or materials covered by the contract.” 27 The
amount of the lien is specified by § 52-136, 28 which provides,
under the circumstances here, that the lien is for the amount
unpaid under Echo’s contract. 29
Provisions within the Act authorize recovery of amounts in
addition to the amount of the lien and, thus, may be in addition
to the amount of the bond. One statute 30 mandates an award to
the prevailing party of reasonable attorney fees and court costs
if a claimant has a claim under a bond procured by an owner
or prime contractor from a surety company in the penal sum
set forth in § 52-141(3). Another makes a person who fails to
furnish information required by § 52-143 liable to the request-
ing party for actual damages or $200 as liquidated damages. 31
A third statute makes a claimant who fails to send a copy of
the recording of a notice of commencement to the contracting
owner liable to the contracting owner for any damages caused
by that failure. 32 A fourth statute provides that if a person is
wrongfully deprived of benefits or if a claimant acts in bad
faith, damages, including the costs of correcting the record and
reasonable attorney, fees may be awarded. 33 Nothing within the
Act limits these additional amounts to 15 percent of the amount
claimed in the lien. 34
27
§ 52-127(2).
28
§ 52-131(4).
29
See § 52-136(2)(a).
30
§ 52-141(6).
31
§ 52-143(3).
32
§ 52-145(6).
33
See § 52-157.
34
See § 52-142(1)(a).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729[10] The language of the Act demonstrates that the function
of the surety bond under § 52-142 is to release the property
from the lien and to transfer the claimant’s rights from the
property to the surety bond. It is simply a matter of substitution
of collateral. 35 The shifting of the lien from the property to the
bond substitute does not create a limit on recovery that would
not otherwise exist. Where recovery of amounts in excess of
the lien amount is permitted, it is not error to enter judgment in
an amount greater than the amount of the surety bond.
(c) Judgment Directly Against Lund-Ross
Lund-Ross further contends that in case No. S-21-770, the
court erred by assessing the judgment in excess of the posted
surety bond—an additional $69,524.86—directly against
Lund-Ross. The district court reasoned that under § 52-142,
it was discretionary to the court whether to render judgment
against the surety company or simply order the clerk of the
district court to pay the bond out to Echo. The court declared
that any remaining amount due on the judgment—which
included prejudgment interest, attorney fees, and costs—was
the sole responsibility and obligation of Lund-Ross. Lund-
Ross argues that any judgment against it—as opposed to
the surety per § 52-142(3)—was error. We disagree for sev-
eral reasons.
First, we reject Lund-Ross’ assertion that judgment could
not be entered against it because “Echo’s pleadings are entirely
devoid of any claims asserted against Lund-Ross.” 36 In case
No. S-21-770, Echo sued the property owner and two corpora-
tions having an interest in the property, seeking to foreclose
on its construction lien. Subsequently, Lund-Ross deposited a
surety bond and moved to intervene. As Lund-Ross recognized
in its motion—and as set forth in the discussion above—upon
release of the construction lien, Echo’s rights were transferred
from the property to the surety bond. The bond to release the
35
See § 52-151(1).
36
Brief for appellant at 30.
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Cite as 312 Neb. 729lien identified Lund-Ross as “Principal” and Western Surety
Company as “Surety,” and they bound themselves “jointly
and severally” to Echo. Lund-Ross cites no authority for the
proposition that the liability of the principal on a surety bond
is limited to the penal sum.
[11] Second, Lund-Ross is obligated by its stipulation. The
general rule is that parties are bound by stipulations voluntarily
made. 37 Lund-Ross stipulated that the property owner should
be dismissed as a party and that “to the extent [Echo] obtains
a final judgment, it will be satisfied by Lund[-]Ross and/or
its bond.”
[12] Third, a surety generally cannot be held liable for an
amount greater than the bond. “[I]n the absence of a condition
extending his or her liability, a surety cannot be held liable for
more than the penal sum named.” 38 Although this bond was not
a surety bond meeting the requirements of § 52-141, that stat-
ute conveys the same general rule: “The bond must obligate the
surety company, to the extent of the penal sum of the bond” 39
and “the total liability of the surety may not exceed the penal
sum of the bond.” 40 This means that liability for any amount in
excess of the bond falls to Lund-Ross.
For all these reasons, we find no error by the court in assess-
ing the judgment in excess of the posted surety bond directly
against Lund-Ross.
2. Prejudgment Interest
(a) Standard of Review
[13] Awards of prejudgment interest are reviewed de novo. 41
37
Lincoln Lumber Co. v. Lancaster, supra note 8.
38
11 C.J.S. Bonds § 55 at 43 (2019).
39
§ 52-141(2).
40
§ 52-141(7).
41
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d
251 (2021).
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Cite as 312 Neb. 729(b) Additional Facts and Findings
In all three cases, Echo requested prejudgment interest under
Neb. Rev. Stat. § 45-104 (Reissue 2021) only. In case No.
S-21-729, the court did not explicitly rule on Echo’s request
for prejudgment interest. In case No. S-21-730, the court dis-
agreed that Echo’s construction lien was an instrument in writ-
ing envisioned by § 45-104. Thus, it denied Echo’s request for
prejudgment interest under that statute.
In case No. S-21-770, the court found that Echo was entitled
to prejudgment interest under § 45-104. It determined that the
construction lien itself qualified under § 45-104 as “‘money
due on an instrument in writing.’” The court further found that
Echo was entitled to prejudgment interest under the provision
of § 45-104 allowing interest on “‘money loaned or due and
withheld by unreasonable delay of payment.’” Accordingly, the
court determined that Echo was entitled to prejudgment inter-
est of $71,910.72, for the period beginning on the date Echo
recorded the construction lien.
(c) Discussion
Both parties assign error with respect to prejudgment inter-
est. Lund-Ross claims that the court erred by awarding Echo
prejudgment interest in case No. S-21-770. On cross-appeal,
Echo assigns that the court erred by denying it prejudgment
interest in cases Nos. S-21-729 and S-21-730.
[14-16] On appeal, Echo contends that in addition to
§ 45-104, Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021)
also authorized an award of prejudgment interest. Sections
45-103.02 and 45-104 provide alternate and independent means
of recovering prejudgment interest. 42 Section 45-103.02(2)
authorizes the recovery of prejudgment interest on liquidated
claims. 43 When a claim is of the types enumerated in § 45-104,
then prejudgment interest may be recovered without regard to
42
Id.
43
See Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
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Cite as 312 Neb. 729whether the claim is liquidated. 44 Although Echo did not iden-
tify § 45-103.02(2) as a basis for prejudgment interest before
the district court, the issue of prejudgment interest “as provided
in [§] 45-104” 45 was clearly raised. We look to both statutes.
(i) § 45-103.02(2)
[17] As noted, the record from the district court proceed-
ings does not reflect that Echo ever mentioned § 45-103.02(2)
as a basis for prejudgment interest. The district court cannot
commit error in resolving an issue never presented and submit-
ted to it for disposition. 46 Thus, in cases Nos. S-21-729 and
S-21-730—where the court found no entitlement to prejudg-
ment interest—we find no error in failing to award interest
under § 45-103.02(2).
As to case No. S-21-770, where the court awarded pre-
judgment interest under § 45-104, we merely observe that
§ 45-103.02(2) supplies another basis for such an award.
Section 45-103.02(2) states that “[e]xcept as provided in sec-
tion 45-103.04, interest as provided in section 45-104 shall
accrue on the unpaid balance of liquidated claims from the date
the cause of action arose until the entry of judgment.”
Here, Echo’s claim was liquidated. For a claim to be liq-
uidated, a dispute must not exist either to the amount due or
to the plaintiff’s right to recover. 47 Lund-Ross admitted each
of Echo’s statements of undisputed fact. Thus, it admitted
the balances that Echo asserted remained unpaid. We note
that in three cases involving the foreclosure of a mechanic’s
lien, terminology predating the Act, 48 our opinion referenced
§ 45-103.02 but disallowed interest because the claim was
44
Id.
45
§ 45-103.02(2).
46
Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
47
See Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692,
695 N.W.2d 665 (2005).
48
See § 52-159 (substituting “construction lien” for “mechanic’s lien”).
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Cite as 312 Neb. 729unliquidated. 49 That is not the case here. Thus, it appears that
§ 45-103.02(2) would have provided a perhaps clearer basis for
prejudgment interest.
(ii) § 45-104
[18] We now turn to § 45-104, which the court in case No.
S-21-770 used as the statutory basis for its award of prejudg-
ment interest. Section 45-104 applies to four types of judg-
ments: (1) money due on any instrument in writing; (2) settle-
ment of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained
without the owner’s consent, express or implied, from the
receipt thereof; and (4) money loaned or due and withheld by
unreasonable delay of payment. 50
Lund-Ross advances several reasons in support of its belief
that prejudgment interest is unavailable. It argues that the only
relevant instrument in writing would be the material contract
between Echo and Signature, but that no such contract is in
evidence and that Echo did not sue Signature. Lund-Ross also
points to the lack of any instrument in writing between Echo
and the project owners. It further argues that the construction
lien itself does not create the obligation to the claimant; rather,
the lien provides a remedy.
The plain language of the statute provides insight. As set
forth above, interest shall be allowed “on money due on
any instrument in writing.” 51 An “instrument” is “[a]n object,
device, or apparatus designed or used for a particular purpose
or task.” 52 An alternative definition, specific to the legal realm,
49
See, Payless Bldg. Ctr. v. Wilmoth, 254 Neb. 998, 581 N.W.2d 420 (1998);
Blue Tee Corp. v. CDI Contractors, Inc., 247 Neb. 397, 529 N.W.2d 16(1995); Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465(1993).
50
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212(2020).
51
§ 45-104.
52
See “Instrument,” Oxford English Dictionary Online, https://www.oed.
com/view/Entry/97158 (last visited Oct. 24, 2022).
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Cite as 312 Neb. 729is “[a] formal legal document entailing rights and obligations,
such as a contract, deed, legislative act, etc.; any document
formally drawn up so as to have legal effect.” 53 A construction
lien fits within these definitions. That leads to the next ques-
tion: Is money due on the lien? Because the right to recover
money that was due on an underlying contract has essentially
transferred to the lien, the answer is yes.
Further, this court has previously allowed prejudgment inter-
est under § 45-104 in connection with mechanics’ liens. In
Walker v. Collins Construction Co., 54 we cited Comp. Stat.
§ 45-104 (1929) and stated that “where a lien is claimed for an
account for material and labor furnished for the construction
of a building, in the absence of an agreement to the contrary,
interest may be reckoned only from a date six months after
the last item.” 55 We thus allowed prejudgment interest to the
extent that lienors were entitled to liens. In O’Keefe Elevator
v. Second Ave. Properties, 56 we determined that a party who
brought an action to foreclose its mechanic’s lien was entitled
to prejudgment interest under § 45-104 because money was
“‘due and withheld by unreasonable delay of payment.’”
[19] We conclude an award of prejudgment interest in an
action to foreclose a construction lien is authorized under
§ 45-104. At oral argument, counsel for Echo provided no
rationale for interest to begin running before the filing of the
lien. We agree that any prejudgment interest would begin run-
ning on the date of recording the construction lien. That is the
date used by the district court in case No. S-21-770, and we
affirm its award of prejudgment interest.
[20] In connection with Echo’s cross-appeal, we conclude
that the court in cases Nos. S-21-729 and S-21-730 erred by
53
Id.
54
Walker v. Collins Construction Co., 121 Neb. 157, 236 N.W. 334 (1931).
55
Id. at 160, 236 N.W. at 336.
56
O’Keefe Elevator v. Second Ave. Properties, 216 Neb. 170, 175, 343
N.W.2d 54, 57 (1984), disapproved in part on other grounds, Weyh v.
Gottsch, supra note 43.
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Cite as 312 Neb. 729denying prejudgment interest. Section 45-104 specifies that
“interest shall be allowed.” As a general rule, the word “shall”
in a statute is considered mandatory and is inconsistent with
the idea of discretion. 57 We therefore reverse the denial of
prejudgment interest and remand cases Nos. S-21-729 and
S-21-730 to the district court with direction to award such
interest in conformity with this opinion.
3. Attorney Fees
(a) Standard of Review
[21] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. 58
We turn to the issues raised by the parties in cases Nos.
S-21-729 and S-21-770.
(b) Case No. S-21-729
[22] In case No. S-21-729, the court overruled Echo’s
request for attorney fees. On cross-appeal, Echo assigns error
to that denial. As a general rule, attorney fees and expenses
may be recovered in a civil action only where provided for
by statute or when a recognized and accepted uniform course
of procedure has been to allow recovery of attorney fees. 59
Echo claims attorney fees were appropriate under two statutes,
one—§ 52-157(3)—contained within the Act, and the other—
Neb. Rev. Stat. § 44-359 (Reissue 2021)—found in the chapter
of the Nebraska Revised Statutes addressing insurance. We
examine each statute.
(i) § 52-157
Echo contends that § 52-157(3) permitted an award of attor-
ney fees. After recalling principles of statutory construction,
we examine the language of the statute.
57
Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
58
McGill Restoration v. Lion Place Condo. Assn., supra note 41.
59
North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977 N.W.2d 195 (2022).
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Cite as 312 Neb. 729[23,24] When construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense. 60 In construing
a statute, the court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to
be served, and then place on the statute a reasonable construc-
tion which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose. 61
Section 52-157 is titled “Remedies for wrongful conduct.”
Although a section head or title does not constitute any part of
the law, 62 the title fits the statutory language. The first subsec-
tion authorizes damages “[i]f a person is wrongfully deprived
of benefits to which he or she is entitled under [the Act] by
conduct other than that described in section 52-156.” 63 The sec-
ond subsection authorizes damages “[i]f in bad faith a claimant
records a lien, overstates the amount for which he or she is
entitled to a lien, or refuses to execute a release of a lien.” 64
The third and final subsection specifies that damages awarded
under § 52-157 “may include the costs of correcting the record
and reasonable attorney’s fees.” 65
We do not interpret § 52-157 as authorizing attorney fees
in every action involving foreclosure of a construction lien.
Notably, the statute authorizes fees as part of “[d]amages
awarded under this section.” 66 We do not read this language
as authorizing a fee award to a prevailing party for any action
under the Act.
60
Ag Valley Co-op v. Servinsky Engr., supra note 5.
61
Id.62
Neb. Rev. Stat. § 49-802(8) (Reissue 2021).
63
§ 52-157(1) (emphasis supplied).
64
§ 52-157(2) (emphasis supplied).
65
§ 52-157(3).
66
Id. (emphasis supplied).
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Cite as 312 Neb. 729This reading of the statute is consistent with the comments
to a uniform act. Nebraska’s Act is based on the Uniform
Simplification of Land Transfers Act. 67 A comment to the sec-
tion of that uniform act which corresponds to § 52-157 pro-
vides examples of wrongful deprivation which would lead to
liability under the section:
(1) owner contracts under incorrect name so that claim-
ants are misled as to name in which real estate is held
which causes them to record under incorrect name with
resulting failure to secure priority against a third party;
(2) prime contractor furnishes incorrect owner name with
same result; (3) owner or prime contractor furnishes
incorrect description of real estate with resultant mis-
taken recording by claimant; (4) misstatement by prime
contractor as to amount of contract price or payment
thereof which induces claimants not to record lien; (5)
false or bad faith determination of damages from a
prime contractor’s breach which reduces the owner’s lien
liability. 68
The comment demonstrates that wrongful deprivation requires
something more than merely having to foreclose on a construc-
tion lien. And here, Echo has not alleged conduct similar to
that set forth in the comment. Instead, Echo highlights that
there was no genuine dispute as to the amount of its claim or
its right of recovery.
We cannot say that Echo was wrongfully deprived of benefits
under the Act. The Act authorized Echo to obtain a construc-
tion lien, which Echo obtained. The Act authorized foreclosure
of a lien, which Echo pursued. Echo alleged no wrongful con-
duct by Lund-Ross. In a case where a contractor successfully
foreclosed a construction lien, we stated that the contractor
received all of the benefits to which it was entitled under the
67
See Lincoln Lumber Co. v. Lancaster, supra note 8.
68
Unif. Simplification of Land Transfers Act § 5-403, comment 1, 14 U.L.A.
564 (2021).
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Cite as 312 Neb. 729Act and, thus, was not entitled to relief under § 52-157. 69 To
the extent a decision by the Nebraska Court of Appeals 70 can
be read as authorization for attorney fees under § 52-157 wher-
ever a party prevails on a construction lien claim and foreclo-
sure, we disapprove it.
Accordingly, we find no error by the court in failing to
award attorney fees under § 52-157 in case No. S-21-729.
Next, we turn to the other statute that Echo contends autho-
rized an award of attorney fees.
(ii) § 44-359
Echo argues that attorney fees were mandated under
§ 44-359. That statute states:
In all cases when the beneficiary or other person
entitled thereto brings an action upon any type of insur-
ance policy, except workers’ compensation insurance, or
upon any certificate issued by a fraternal benefit soci-
ety, against any company, person, or association doing
business in this state, the court, upon rendering judg-
ment against such company, person, or association, shall
allow the plaintiff a reasonable sum as an attorney’s fee
in addition to the amount of his or her recovery, to be
taxed as part of the costs. If such cause is appealed, the
appellate court shall likewise allow a reasonable sum as
an attorney’s fee for the appellate proceedings, except
that if the plaintiff fails to obtain judgment for more
than may have been offered by such company, person, or
association in accordance with section 25-901, then the
plaintiff shall not recover the attorney’s fee provided by
this section. 71
69
See Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502(2001).
70
See Model Interiors v. 2566 Leavenworth, LLC, 19 Neb. App. 56, 809
N.W.2d 775 (2011).
71
§ 44-359 (emphasis supplied).
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Cite as 312 Neb. 729Echo argues that a surety bond is an insurance policy for pur-
poses of § 44-359. We need not decide that issue here. There is
a fatal flaw to Echo’s argument.
The flaw is that Echo did not “bring[] an action upon”
the surety bond. Echo brought an action to foreclose its con-
struction lien. It was not until 2 months later that Lund-Ross
obtained the surety bond to substitute as collateral. And the
surety company was never brought in as a party in these
proceedings.
Echo argues that once it posted the lien release bond, thereby
transferring its claims from the property to the bond, the action
became one on the bond. We disagree. Had Lund-Ross instead
deposited “a sum of money in cash, certified check, or other
bank obligation” 72 to release the real estate from the lien, we
would not term the action as one on a deposit. The shifting of
the lien from the property to the collateral substitute does not
create an entitlement to attorney fees that would not other-
wise exist.
Cases involving bonds where we have allowed attorney fees
under § 44-359 demonstrate the contrast in circumstances.
We allowed attorney fees under a predecessor statute 73 to
§ 44-359 when a plaintiff sued a surety company which was
the surety on a bond. 74 In other words, the plaintiff brought an
action upon the surety bond. Similarly, we allowed fees under
§ 44-359 in a suit against an insurance company for recovery
under a motor vehicle dealer’s bond where the insurance com-
pany was the surety. 75 In a case where a drilling company sued
a subcontractor and the bonding companies for the general
contractor, we determined that attorney fees were authorized
72
§ 52-142(1)(a).
73
See Comp. Stat. § 44-346 (1929).
74
See City of Scottsbluff v. Southern Surety Co., 124 Neb. 260, 246 N.W. 346(1933).
75
See Adams Bank & Trust v. Empire Fire & Marine Ins. Co., 244 Neb. 262,
506 N.W.2d 52 (1993).
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Cite as 312 Neb. 729under § 44-359. 76 We explained, “It is clear in this case that
[the drilling company] did sue the bonding companies of the
principal contractor, and recovered judgment against them.” 77
But that is not the situation before us. We conclude that fees
are not authorized under § 44-359.
As an aside, we note that similar to § 44-359, a statute
within the Act 78 mandates attorney fees for a judicial pro-
ceeding brought on a surety bond. When the requirements of
§ 52-141 are met, no construction lien attaches to the real
estate and a claimant may proceed directly against the surety.
But no one contends that § 52-141 has application here, and we
conclude that it is not implicated.
In case No. S-21-729, we find no error by the court in not
awarding attorney fees.
(c) Case No. S-21-770
(i) Additional Facts and Findings
With respect to attorney fees, an attorney representing Echo
submitted an affidavit stating that a significant portion of the
work performed was applicable in all three cases, particularly
briefing, discovery, and a deposition. The attorney proposed
“accumulat[ing] all time and apply[ing] it to each based on the
pro rata share of the demand.” Echo set forth a table show-
ing the demand in each case and the corresponding pro rata
share of the demand. It showed that in case No. S-21-770,
the demand was $296,407.73 and the pro rata share was 87
percent. In case No. S-21-730, the demand was $32,781.03,
so the pro rata share was 9.6 percent. In case No. S-21-729,
the demand was $11,604.46, making the pro rata share 3.4
percent. According to the affidavit, the total fees incurred for
all three cases against Lund-Ross amounted to $41,607.50;
76
Rieschick Drilling Co. v. American Cas. Co., 208 Neb. 142, 303 N.W.2d
264 (1981).
77
Id. at 154, 303 N.W.2d at 271.
78
§ 52-141(6).
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Cite as 312 Neb. 729thus, the pro rata share of fees for case No. S-21-770 totaled
$36,198.53. A document showing all time entries incurred in
the three cases was attached to the affidavit.
The court found Echo’s methodology to be appropriate and
awarded Echo attorney fees pursuant to § 52-157(3). The court
agreed with Echo that § 44-359 provided an additional legal
basis for attorney fees, reasoning that the surety bond qualified
as an insurance policy under § 44-359 and that Echo was a
beneficiary to that surety bond. Although the court stated that
it awarded Echo $36,198.53 in attorney fees, when it specifi-
cally set forth the final judgment, the court awarded attorney
fees of $41,607.50—the total for all three cases.
(ii) Discussion
On appeal, Lund-Ross argues that the court erred in case
No. S-21-770 by awarding fees because (1) it awarded the fees
incurred in all three cases rather than the proportionate share
requested and (2) it awarded fees incurred entirely in separate
matters. Echo does not dispute that the court’s order contained
the errors alleged.
[25,26] Lund-Ross does not allege or argue that the attorney
fee award was not statutorily authorized. Absent plain error,
an appellate court considers only an appellant’s claimed errors
that the appellant specifically assigns in a separate “assign-
ment of error” section of the brief and correspondingly argues
in the argument section. 79 But because we above concluded
that neither § 44-359 nor § 52-157 authorized the award of
attorney fees under the circumstances, allowing the award to
stand would constitute plain error. Plain error is error plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process. 80 We therefore reverse the
award of attorney fees in case No. S-21-770.
79
In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
80
North Star Mut. Ins. Co. v. Miller, supra note 59.
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Cite as 312 Neb. 729(d) Case No. S-21-730
In case No. S-21-730, the district court awarded attorney
fees of $3,994.32 under § 52-157(3). Although neither party
challenged the award on appeal, we must reverse it. For the
same reasons discussed above, the award under § 52-157(3)
was erroneous and allowing it to stand would be plain error.
Accordingly, we reverse the award of attorney fees in case
No. S-21-730.
VI. CONCLUSION
In all three appeals, we find no abuse of discretion by the
court in entering summary judgment and not granting equitable
relief. In cases Nos. S-21-730 and S-21-770, we find no error
by the court in entering judgment in an amount greater than the
amount of the surety bond. And in case No. S-21-770, we con-
clude that the court did not err in assessing judgment in excess
of the posted surety bond against Lund-Ross.
We conclude that prejudgment interest in an action to fore-
close a construction lien is authorized under § 45-104. Thus, in
cases Nos. S-21-729 and S-21-730, we reverse the denial and
remand with direction to award prejudgment interest in con­
formity with this opinion.
Finally, we determine that neither § 44-359 nor § 52-157
authorize attorney fees under the circumstances presented in
these cases. We therefore reverse the award of such fees in
cases Nos. S-21-730 and S-21-770.
Judgment in No. S-21-729 affirmed in part
and in part reversed, and cause
remanded with direction.
Judgment in No. S-21-730 affirmed in part
and in part reversed, and cause
remanded with direction.
Judgment in No. S-21-770 affirmed in part
and in part reversed.