TransCanada Keystone Pipeline v. Tanderup , 305 Neb. 493 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/02/2020 08:12 AM CDT
- 493 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
TransCanada Keystone Pipeline, LP, appellant,
v. Arthur R. Tanderup and Helen J. Tanderup,
husband and wife, and John Doe, appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Frank C. Morrison, also known as Frank
Morrison, and Lynn H. Morrison, husband
and wife, and John Doe, appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Jerry Carpenter and Charlayne Carpenter,
husband and wife, et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Germaine G. Berry et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Cottonwood Ridge LLC et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Cheri G. Blocher and Michael J. Blocher,
wife and husband, et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Frankie Maughan, also known as Frankie
Maughan, Jr., et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Todd J. Stelling and Lisa J. Stelling,
husband and wife, and John Doe,
appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Karen G. Berry and John Doe, appellees.
- 494 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
TransCanada Keystone Pipeline, LP, appellant,
v. Richard E. Stelling et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Joshua R. Stelling and John Doe, appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Robert R. Krutz and Beverly J. Krutz,
husband and wife, et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. CHP 4 Farms, LLC, et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Carol J. Manganaro, Personal Representative
of the Estate of Florian W. Dittrich,
et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Carol J. Manganaro et al., appellees.
TransCanada Keystone Pipeline, LP, appellant,
v. Tree Corners Farm, LLC, et al., appellees.
___ N.W.2d ___
Filed April 10, 2020. Nos. S-19-493 through S-19-508.
1. Judgments: Appeal and Error. The construction of a mandate issued
by an appellate court presents a question of law on which an appellate
court is obligated to reach a conclusion independent of the determination
reached by the court below.
2. Courts: Appeal and Error. In cases where no statement of errors was
filed and the district court reviewed for plain error, the higher appellate
court likewise reviews for plain error only.
3. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
4. ____: ____. In appellate procedure, a “remand” is an appellate court’s
order returning a proceeding to the court from which the appeal origi-
nated for further action in accordance with the remanding order.
- 495 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
5. Courts: Appeal and Error. After receiving a mandate, a trial court is
without power to affect rights and duties outside the scope of the remand
from an appellate court.
6. Judgments: Appeal and Error. A reversal of a judgment and the
remand of a cause for further proceedings not inconsistent with the opin-
ion, without specific direction to the trial court as to what it shall do, is
a general remand and the parties stand in the same position as if the case
had never been tried.
7. Courts: Judgments: Appeal and Error. The exception to this general
rule placing the parties back where they stood before the appeal after
such a general remand order, is that if the undisputed and admitted facts
are such that but one judgment could be rendered, the trial court should
enter such a judgment, notwithstanding the mandate did not specifically
direct the trial court’s action.
8. Appeal and Error. Under the law‑of‑the‑case doctrine, the holdings of
an appellate court on questions presented to it in reviewing proceedings
of the trial court become the law of the case; those holdings conclu-
sively settle, for purposes of that litigation, all matters ruled upon, either
expressly or by necessary implication.
9. Courts: Judgments: Appeal and Error. A district court has an unquali-
fied duty to follow the mandate issued by an appellate court and must
enter judgment in conformity with the opinion and judgment of the
appellate court.
10. ____: ____: ____. A lower court may not modify a judgment directed
by an appellate court; nor may it engraft any provision on it or take any
provision from it.
11. Judgments: Appeal and Error. No judgment or order different from, or
in addition to, the appellate mandate can have any effect.
12. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial
court is without power to affect rights and duties outside the scope of the
remand from an appellate court, any order attempting to do so is entered
without jurisdiction and is void.
13. Courts: Judgments. Each person who takes part in the judicial process
has a substantial right to have the courts’ orders enforced.
Appeals from the District Court for Antelope County, James
G. Kube, Judge, on appeal thereto from the County Court
for Antelope County, Donna F. Taylor, Judge. Judgment of
District Court affirmed.
James G. Powers and Patrick D. Pepper, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., for appellant.
- 496 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
David A. Domina and Brian E. Jorde, of Domina Law
Group, P.C., L.L.O., for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
This is a series of consolidated cases in which TransCanada
Keystone Pipeline, LP (TransCanada), is seeking review of
intermediate appellate orders entered by the Antelope County
District Court, which reversed the Antelope County Court’s
denial of appellees’ motions for attorney fees. These con-
solidated cases are factually related to a series of cases already
decided by this court. 1 The question at issue in these cases is
whether the county court plainly erred by entering a judgment
on remand without holding an evidentiary hearing.
BACKGROUND
These appeals are from a series of condemnation proceed-
ings initiated by TransCanada. Proceedings took place in sev-
eral counties through which TransCanada planned to con-
struct an oil pipeline, including Antelope County. TransCanada
ultimately voluntarily dismissed all of its condemnation
actions without prejudice, because several landowners in York
County challenged the constitutionality of the proceedings and
TransCanada elected to pursue approval for the pipeline route
by the Public Service Commission.
As in the actions filed in other counties, the condemnees in
the Antelope County actions moved for an award of attorney
fees and costs under Neb. Rev. Stat. § 76‑726 (Reissue 2018).
Following a hearing, the Antelope County Court originally
found in favor of the condemnees on their motions for attorney
fees. In making its decision, the county court reviewed the
1
See TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276,
908 N.W.2d 60 (2018).
- 497 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
condemnees’ affidavits that were received, over TransCanada’s
objections. TransCanada made several objections, including
foundation, as well as a general hearsay objection to all of the
affidavits submitted. The Antelope County Court overruled a
majority of the objections. It agreed to disregard the last para-
graph of each of the condemnees’ affidavits, which contained
gratuitous praise for their counsel, but otherwise received the
affidavits into evidence. All of the evidence on the motion for
attorney fees was presented via affidavit.
TransCanada appealed the Antelope County Court’s order
granting attorney fees to the Antelope County District Court,
which determined that the Antelope County condemnees’ affi-
davits submitted in support of their motions were inadmissible
hearsay. The district court reversed the award of attorney fees,
but stated that it was unsure to what extent the county court
had relied on the affidavits. In each case, the district court
remanded the matter for a “rehearing on the merits.” The dis-
trict court’s orders to remand were not appealed.
In similar cases in Holt and York Counties, the respective
district courts had similarly held that the affidavits were inad-
missible hearsay and remanded for a new hearing. However,
unlike the Antelope County District Court’s order, TransCanada
appealed the orders of remand of the Holt County District Court
and the York County District Court. Accordingly, TransCanada
requested to stay the mandate of remand from the district
courts of Holt and York Counties.
In contrast, TransCanada did not request to stay the man-
dates from the Antelope County District Court. The Antelope
County Court received the district court’s mandates on March
21, 2017, and entered orders spreading the mandates on
March 29.
Before the mandated rehearing was held, the parties made
a stipulated request for a continuance to await resolution
of TransCanada Keystone Pipeline v. Nicholas Family. 2 The
2
See id.
- 498 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
stipulated request stated: “These cases are closely associ-
ated with cases in the Nebraska Court of Appeals, and the
Court of Appeals’ rulings on those cases may impact the mat-
ters before this Court.” The Antelope County Court granted
the continuance.
Nicholas Family consisted of 40 appeals from 40 different
condemnation actions, which we consolidated into 4 appeals
decided in 1 opinion. At issue in the appeals was the fact that
the condemnees had requested attorney fees and costs under
§ 76‑726. The condemnees, and their counsel, had in all cases
submitted affidavits in support of the motions attesting to the
fees and their reasonableness, and TransCanada had objected
to all the affidavits on the basis of hearsay. 3 The county
courts had overruled the objections and granted the requests
for attorney fees. The district courts were split on affirm-
ing the awards of attorney fees and rejecting the affidavits
as hearsay.
We held in Nicholas Family that the submission of affida-
vits was an acceptable way to introduce evidence in a motion
for attorney fees. However, we also found that the evidence
presented by the condemnees in those cases was insufficient to
support the award of attorney fees. 4 We explained:
No written fee agreement or invoice for legal services was
offered as evidence in support of the motions for attorney
fees and costs. Nor did the landowners, in their affidavits,
aver any specific amount owed by them to counsel.
We observe that affidavits from one or both counsel
of record regarding the attorney fees actually incurred by
the landowners were offered and admitted as evidence
before each of the county courts. Under certain circum-
stances, such affidavits might supplement other evidence
admitted at an attorney fees hearing and support the
award of fees.
3
See id.
4
See id.
- 499 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
But in this case, these affidavits from counsel were not
specific as to any individual landowner and‑‑with respect
to work done and fees charged‑‑were virtually identical
to one another, including seeking payment of the same
amount of money based upon the same number of hours
of work. In fact, these affidavits raised more questions
than they answered, notably about the nature of the fee
agreement between the landowners and counsel, whether
any fee agreement was akin to a contingency agreement,
and the nature of how attorney fees sought in these emi-
nent domain proceedings might be related to the York
County constitutional challenge. As such, we conclude
that on these facts, these affidavits are insufficient to sup-
port the award of attorney fees.
Because the landowners’ affidavits did not allege the
amount each had actually incurred, and because there
was no other evidence sufficient to support the award of
attorney fees, we find that the county courts’ awards were
in error. 5
Following our ruling in Nicholas Family, the Antelope
County Court held a preliminary hearing to consider the argu-
ments of counsel with regard to how these matters should be
reheard. The condemnees argued that the district court ordered
a rehearing on the merits and that the county court should con-
duct a new evidentiary hearing before ruling on the motions for
attorney fees.
Relying on Jeffres v. Countryside Homes, 6 TransCanada
argued that the county court should exercise its discretion to
limit the scope of the evidence presented at a new hearing to
the same content that was in the original affidavits. In Jeffres,
we said that when a case is remanded for consideration of
damages, it is within the sound discretion of the trial court to
decide the issue on evidence contained in the record already
5
Id. at 287‑88, 908 N.W.2d at 68.
6
Jeffres v. Countryside Homes, 220 Neb. 26, 367 N.W.2d 728 (1985).
- 500 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
made at the first trial, or to take additional evidence or to try
the case de novo.
TransCanada then relied on deNourie & Yost Homes v.
Frost 7 to argue that the county court was not required to hold a
rehearing because, under the facts limited to the same content
that was in the original affidavits, it was undisputed that only
one judgment could be rendered. In deNourie & Yost Homes,
we discussed an exception to the general rule that a remand on
the merits resets the parties back to their position before the
trial. We said that if the facts are not in dispute and only one
judgment could be rendered, a lower court could enter an order
without holding a rehearing. 8
After considering the arguments at the preliminary hear-
ing, the county court concluded a rehearing was unnecessary
because Nicholas Family already established that the type
of evidence to be presented by the condemnees was insuf-
ficient to support awards of attorney fees. The county court
concluded that the affidavits in this case were very similar to
those in Nicholas Family, because they were all prepared by
the same counsel and used nearly identical language save for
the names of the landowners and the paragraph identifying
their property. The court noted that, in fact, both TransCanada
and the condemnees had stipulated in the motion for continu-
ance that the present cases “were closely associated with the
cases pending on appeal and the appellate court’s ruling may
impact matters before this court.” The court relied on State
v. Henk 9 to determine that a new hearing would be limited
to presentation of the same evidence found in the original
affidavits. In Henk, we held that when a postconviction
claim is remanded, the lower court does not have discretion
to accept evidence on claims different from the claim in the
remand order.
7
deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).
8
See id.
9
State v. Henk, 299 Neb. 586, 909 N.W.2d 634 (2018).
- 501 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
The condemnees appealed the county court’s decision deny-
ing their request for attorney fees to the district court, but failed
to file a statement of errors. Accordingly, the district court’s
review was limited to plain error. The district court found that
the county court had plainly erred by not having an evidentiary
hearing on attorney fees as directed in the district court’s origi-
nal mandates. The district court reversed the county court’s
decision and remanded the matter with instructions to conduct
an evidentiary hearing. TransCanada now appeals the district
court’s rulings.
ASSIGNMENTS OF ERROR
TransCanada asserts that the district court erred by holding
(1) that the county court’s denial of the motion for attorney
fees was plain error and (2) that the county court was required
to hold a new evidentiary hearing in which additional evidence
could be offered.
STANDARD OF REVIEW
[1] The construction of a mandate issued by an appellate
court presents a question of law on which an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. 10
[2] In cases where no statement of errors was filed and the
district court reviewed for plain error, the higher appellate
court likewise reviews for plain error only. 11
[3] Plain error exists where there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. 12
10
State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).
11
Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).
12
Id.
- 502 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
ANALYSIS
As the district court pointed out in the second order, once
the affidavits were ruled as inadmissible, no evidence remained
to support a decision from the county court. And because
TransCanada did not appeal the district court’s orders of remand
after the first appeal, with the specific mandate for a “rehear-
ing on the merits” that became the law of the case, the county
court lacked the power to ignore that mandate. We agree with
the district court’s second orders that it was plain error for
the county court to fail to hold a new evidentiary hearing in
accord­ance with the district court’s mandates.
[4,5] In appellate procedure, a “remand” is an appellate
court’s order returning a proceeding to the court from which
the appeal originated for further action in accordance with the
remanding order. 13 After receiving a mandate, a trial court is
without power to affect rights and duties outside the scope of
the remand from an appellate court. 14 We have consistently
held that when a lower court is given specific instructions on
remand, it must comply with the specific instructions and has
no discretion to deviate from the mandate. 15
The duty of the lower court springs from the public interest
in having a finality to the litigation process and final judg-
ments of the court. In Jurgensen v. Ainscow, 16 we explained
this duty in the context of an appeal from a district court order
that entered judgment from a mandate by the Supreme Court.
In that case, we said:
“When a particular judgment is directed by the appellate
court, the lower court is not acting of its own motion,
but in obedience to the order of its superior. What that
13
Molina v. Salgado‑Bustamante, 21 Neb. Ct. App. 75, 837 N.W.2d 553 (2013).
14
Id.
15
See id. See, also, Henk, supra note 9; Robertson v. Jacobs Cattle Co.,
292 Neb. 195, 874 N.W.2d 1 (2015); VanHorn v. Nebraska State Racing
Comm., 273 Neb. 737, 732 N.W.2d 651 (2007).
16
Jurgensen v. Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955).
- 503 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
superior says it shall do, it must do, and that alone. Public
interests require that an end shall be put to litigation,
and when a given cause has received the consideration
of this court, its merits determined, and then remanded
with specific directions, the court to which such mandate
is directed has no power to do anything but to obey the
mandate; otherwise, litigation would never be ended, and
the supreme tribunal of the state would be shorn of that
authority over inferior tribunals with which it is invested
by our fundamental law. . . .” 17
Application of this rule in the present cases places the respon-
sibility on the county court to comply with the district court’s
mandates, which ordered it to hold a new hearing.
[6,7] TransCanada argues that in each case the order was not
a specific mandate, but a general remand, and that an excep-
tion applies such that no further hearing is necessary because
the undisputed facts are such that but one judgment could be
rendered. A reversal of a judgment and the remand of a cause
for further proceedings not inconsistent with the opinion, with-
out specific direction to the trial court as to what it shall do,
is a general remand and the parties stand in the same position
as if the case had never been tried. 18 The exception to this
general rule placing the parties back where they stood before
the appeal after such a general remand order, is that if the
undisputed and admitted facts are such that but one judgment
could be rendered, the trial court should enter such a judgment,
notwithstanding the mandate did not specifically direct the trial
court’s action. 19
Thus, under this exception, in Bohmont v. Moore, 20 we
upheld a district court order applying a rule of law concern-
ing negligence to enter judgment without holding a trial after
17
Id. at 211, 69 N.W.2d at 858.
18
deNourie & Yost Homes, supra note 7.
19
Bohmont v. Moore, 141 Neb. 91, 2 N.W.2d 599 (1942).
20
Id.
- 504 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
the court received a general remand order. Bohmont, and a
series of related cases, initially involved a breach of a bailment
contract action when cash placed inside the plaintiff’s safety
deposit box at the bank went missing. 21 The plaintiff named the
bank and two employees as defendants. The trial court directed
a verdict in favor of the two employees, and the complaint
against the bank proceeded to trial. At trial, the jury held the
bank responsible for the loss of the money in the safety deposit
box. 22 On appeal, we applied tort law and concluded that the
bank could not be held responsible and remanded. 23 Our man-
date stated that “‘the judgment rendered by you be reversed
. . . and the cause remanded for further proceedings.’” 24
On remand, the plaintiff pointed out that our decision revers-
ing the judgment relied on tort law and that the action was
brought as a breach of contract; thus, portions of our opin-
ion implied that he should have a new trial. 25 The trial court
reviewed the plaintiff’s argument and determined that the
rule from tort law applied to the action because the plaintiff’s
breach of contract claim also asserted negligence. The trial
court entered a directed verdict in favor of the bank without
holding a new trial. The plaintiff again appealed and argued
that portions of our first opinion implied that the plaintiff
should have received a new trial. 26 In our opinion from the
second appeal, we held that nothing in our first remand order
prevented the trial court from applying the rule of law to the
undisputed facts and entering judgment in favor of the bank.
Thus, we affirmed the district court’s decision. 27
21
See Bohmont v. Moore, 138 Neb. 784, 295 N.W. 419 (1940); Bohmont v.
Moore, 138 Neb. 907, 297 N.W. 559 (1941); and Bohmont, supra note 19.
22
See Bohmont, supra note 19.
23
See id.
24
Id. at 92, 2 N.W.2d at 600.
25
See Bohmont, supra note 19.
26
Id.
27
Id.
 - 505 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
In contrast, we found in deNourie & Yost Homes that this
exception did not apply to the general remand order in that
case. 28 A contractor had sued a homeowner and a bank for
several claims, including breach of contract, fraud, and civil
conspiracy related to the construction of a home. The trial
court originally granted summary judgment in favor of the
homeowner and the bank, and the contractor appealed. In the
first appeal, we found that summary judgment was inappropri-
ate on the claims of fraud and civil conspiracy and remanded
for “further proceedings on D & Y’s claims of fraud and civil
conspiracy.” 29
On remand, the district court allowed the contractor to amend
his complaint and the court considered a new motion for sum-
mary judgment on the amended complaint. 30 The district court
granted the motion for summary judgment and the contractor
again appealed, arguing in the second appeal that summary
judgment on remand was inappropriate because our general
mandate implied that the contractor was entitled to a trial only
on the claims that were remanded. In deNourie & Yost Homes,
we clarified that the general rule did not require a trial, only
that the parties be put in the same position as if the case had
never been tried. 31 Under the procedural facts of deNourie &
Yost Homes, that meant the district court was free to consider
new pretrial motions and was not obligated to proceed to a
trial if summary judgment on a new motion was warranted. 32
We also noted in deNourie & Yost Homes the exception to
the rule, stated above, and then concluded that the excep-
tion was not applicable under the facts of the case. 33 Instead,
28
deNourie & Yost Homes, supra note 7.
29
See deNourie & Yost Homes v. Frost, 289 Neb. 136, 163, 854 N.W.2d 298,
320 (2014).
30
deNourie & Yost Homes, supra note 7.
31
See id.
32
See id.
33
See id.
- 506 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
the remand had left open a number of possible actions: the
court was free to hold a trial, to receive additional evidence,
or to decide the case without receiving additional evidence. 34
We find no merit to TransCanada’s assertion in each case
that the district court’s remand order was a general remand and
that the county court correctly applied the exception articu-
lated in Bohmont and vacated the award of attorney fees and
dismissed the motions without a hearing. Most fundamentally,
we find no merit to this argument because the district court’s
orders were not a general remand. It was not a remand of the
cause for further proceedings not inconsistent with the opinion,
without specific direction to the trial court as to what it shall
do. Rather, the district court remanded the causes for a “rehear-
ing on the merits.” In each case, the opinion issued by the
district court specified: “The Order on attorney fees and costs
is reversed. The matter is remanded to the County Court for
rehearing consistent with the Order herein,” after stating in the
order that “a rehearing on the merits is appropriate.” (Emphasis
supplied.) In the context of the rest of the opinion in each case,
it is clear that the district court’s order was a specific man-
date for a new evidentiary hearing on attorney fees. When an
appellate court’s mandate makes its opinion a part thereof by
reference, the lower court should examine the opinion with the
mandate to determine the judgment to be entered or the action
to be taken thereon. 35
The county court erred in circumventing this specific man-
date by concluding that if a rehearing were held, the con-
demnees would be limited to presenting the same evidence
that was presented in the original affidavits, and that the facts
would be undisputed under such evidence that the motion for
attorney fees would be unsupported. The county court arrived
at its conclusion after reasoning that “the evidence in these
Antelope County cases is so substantially similar to those facts
34
See id.
35
Henk, supra note 9.
- 507 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
discussed and referred to in the [Nicholas Family] case as to be
identical.” Because the county court believed that the evidence
was identical, it also reasoned that the same judgment was
required in the present cases as in Nicholas Family. 36
To support this assertion, the county court order cited to
our decision in Henk, but Henk is inapposite to the cases at
bar. 37 In Henk, we had previously decided in a memorandum
opinion on appeal from the denial of an evidentiary hearing
that the defendant was entitled to an evidentiary hearing on
a postconviction claim stated in his original postconviction
application, and we remanded the cause for that specific pur-
pose. After our mandate was spread and before the hearing on
remand, the district court granted the defendant leave to amend
his postconviction application to include additional claims for
postconviction relief. In an appeal by the defendant following
denial of postconviction relief, we concluded that the district
court erred in hearing evidence on issues for which the case
was not remanded. 38
Henk thus precludes a lower court from hearing evidence of
claims outside the scope of the remand. It reiterates that the
lower court must comply with a specific mandate and neither
do less nor more than what the mandate orders. Nothing in
our holding in Henk indicates that a court should narrow the
scope of evidence to prevent a party from presenting all evi-
dence relevant to the issue specified to be reheard on remand,
let alone that the evidence should be limited to the substance
of that presented in an original hearing. Indeed, in Henk, no
hearing was held prior to the appeal. Henk illustrates simply
that the parties cannot use remand as an opportunity to expand
the issues by amending the pleadings and holding a hearing on
claims beyond those specified in the mandate remanding for an
evidentiary hearing.
36
Nicholas Family, supra note 1.
37
Henk, supra note 9.
38
See id.
- 508 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
Nothing in the Antelope County District Court’s specific
mandates for a rehearing on the merits of the motions for attor-
ney fees suggested that the evidence presented in the new hear-
ing should be limited to the evidence presented in the first. By
concluding that the ordered “rehearing” was pointless, because
the evidence would be so limited and would be insufficient, the
county court deviated from the district court’s mandates, which
it lacked the authority to do.
The Bohmont exception could not apply, because the district
court’s mandates were not a general remand of a cause for
further proceedings not inconsistent with the opinion, without
specific direction to the trial court as to what it shall do. 39
Rather, they were specific mandates.
But even if the Bohmont exception could apply, the county
court erred in concluding the evidence was undisputed, because
the district court ruled on appeal that the affidavits were inad-
missible hearsay. The county court reasoned that “the evidence
in these Antelope County cases is so substantially similar to
those facts discussed and referred to in the [Nicholas Family]
case as to be identical.” But instead, it was true that before the
appeals to the district court, which ruled the evidence inadmis-
sible and remanded for a rehearing, the evidence was so sub-
stantially similar to those facts discussed in Nicholas Family as
to be identical. 40 Upon the district court’s rulings as an appel-
late court, however, the affidavits were no longer in evidence.
Upon remand and before any new evidentiary hearing was
held, there was no evidence on the record concerning the attor-
ney fees at issue. Without evidence of the work done and the
amounts of fees incurred by each landowner, the county court
had no basis for concluding that the facts to support the motion
were undisputed.
[8] And although Nicholas Family has since indicated that
the district court’s orders would have been reversed, had
39
See Bohmont, supra note 19.
40
See Nicholas Family, supra note 1.
- 509 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
they been appealed, which would have led to the ultimate
result the county court reached, the district court’s orders
in these cases were not appealed. Because TransCanada did
not appeal the district court’s orders remanding the causes
for rehearing on the merits of the motions for attorney fees,
those orders became final and the law of the case. 41 Under
the law-of-the-case doctrine, the holdings of an appellate
court on questions presented to it in reviewing proceedings
of the trial court become the law of the case; those holdings
conclusively settle, for purposes of that litigation, all matters
ruled upon, either expressly or by necessary implication. 42
The Nicholas Family appeals, while factually similar, are still
separate cases. They have no effect on the law of the case
governing the present appeals. Because neither TransCanada
nor the condemnees appealed the orders of the district court,
the county court was left with a binding specific remand
instruction, regardless of whether the district court’s judg-
ments were correct.
We agree with the district court that it was plain error in
each case for the county court to fail to follow the district
court’s first mandate that became the law of the case and hold
an evidentiary hearing on the issue of attorney fees. In cases
where no statement of errors was filed and the district court
reviewed for plain error, the higher appellate court likewise
reviews for plain error only. 43 Plain error exists where there is
an error, plainly evident from the record, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of jus-
tice or result in damage to the integrity, reputation, and fairness
of the judicial process. 44
41
See Rhoden Auto Center v. Oakley, 2 Neb. Ct. App. 84, 507 N.W.2d 51
(1993).
42
Carpenter v. Cullan, 254 Neb. 925, 581 N.W.2d 72 (1998).
43
Houser, supra note 11.
44
See id.
- 510 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
[9-13] As stated, a lower court has no authority to disregard
a mandate of an appellate court. This principle is fundamental
to our appellate process:
A district court has an unqualified duty to follow the
mandate issued by an appellate court and must enter
judgment in conformity with the opinion and judgment
of the appellate court. A lower court may not modify
a judgment directed by an appellate court; nor may it
engraft any provision on it or take any provision from
it. No judgment or order different from, or in addition
to, the appellate mandate can have any effect. Because
a trial court is without power to affect rights and duties
outside the scope of the remand from an appellate court,
any order attempting to do so is entered without jurisdic-
tion and is void. 45
Each person who takes part in the judicial process has a sub-
stantial right to have the courts’ orders enforced. 46 And it is
fundamental that the last utterance of an appellate court deter-
mines the law of the case, and upon remand for another trial
subsequent to the appeal, the trial court is bound to follow the
law as stated by an appellate court. 47 We have long held that
when a lower court fails to follow the directions of a superior
court, the parties to such action have a right to use the appel-
late court to coerce compliance with the mandate. 48 In State v.
Dickinson, 49 we said that the actions of the lower court can be
reviewed, either by error or appellate proceedings, or by man-
damus, explaining the importance of enforcing a mandate in
order to prevent parties from appealing ad infinitum:
The force and effect of the provisions of a mandate ought
not thus to be overcome and neutralized. If permissible,
45
Henk, supra note 9, 299 Neb. at 591, 909 N.W.2d at 638-39.
46
See State v. Dickinson, 63 Neb. 869, 89 N.W. 431 (1902).
47
State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).
48
See Dickinson, supra note 46.
49
Id. at 875-76, 89 N.W. at 433.
- 511 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
it would, in many instances, deprive a party litigant of a
substantial right earned after tedious and expensive litiga-
tion, and require useless and needless expense and time
in correcting the injustice done him by the prosecution of
a new proceeding on appeal to establish that which has
already been adjudicated.
Disregarding an appellate court’s mandate affects a substantial
right of the litigant the mandate was issued in favor of. When
the parties declined to appeal the first district court order, the
condemnees had earned the substantial right, via the judicial
process, to have a rehearing.
Since there was no appeal in each case of the district court’s
first mandate, which became the law of the case, the county
court could not disregard the final mandate of the district court,
acting as an appellate court. Once the mandate was issued in
each case, the county court had an unqualified duty to follow
the mandate and hold a hearing. To leave such an error uncor-
rected prejudicially affects the condemnees’ substantial right
to the enforcement of the judgment rendered by the appellate
court and would result in damage to the integrity, reputation,
and fairness of the judicial process.
We find no merit to TransCanada’s argument that the stipu-
lated motion for a continuance changed the county court’s
power and responsibilities in light of the orders on remand.
Even assuming a stipulation could operate in such a manner,
the stipulation here did not purport to do so. The stipulation
was merely a continuance requested by both TransCanada
and the condemnees because the present cases “were closely
associated with the cases pending on appeal and the appellate
court’s ruling may impact matters before this court.”
For purposes of the district court’s order in each case
remanding the matter for a new hearing, both TransCanada
and the condemnees are treated as if the motion for attorney
fees has not been heard and they should have a meaningful
opportunity to present whatever evidence they have that is
relevant to the motion for attorney fees. This evidence may
- 512 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
Cite as 305 Neb. 493
be similar to the evidence originally presented or it may be
new evidence; the county court should consider all relevant
evidence before making its determination on the motions for
attorney fees.
CONCLUSION
We conclude that in each case the district court was cor-
rect to find plain error and to remand with instructions for
the county court to hold an evidentiary hearing. We affirm in
each case the district court’s order remanding the matter to the
Antelope County Court to conduct an evidentiary hearing on
the issue of the condemnees’ request for attorney fees and costs
and to make a final determination on that issue based on the
evidence submitted.
Affirmed.
Miller-Lerman, J., participating on briefs.