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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

In re Estate of Madeline A. 

Adelung, deceased.

Lynda Adelung Heiden, Personal Representative 

of the Estate of Madeline A. Adelung, 

deceased, appellant and cross-appellee, 

v. Kent A. Adelung, appellee and 

cross-appellant.

___ N.W.2d ___

Filed October 14, 2022. No. S-21-838.

1. Appeal and Error. The construction of a mandate issued by an appellate court presents a question of law.

2. Judgments: Appeal and Error. On questions of law, an appellate court 

is obligated to reach a conclusion independent of the determination 

reached by the court below.

3. Actions: Appeal and Error. The law-of-the-case doctrine reflects the 

principle that an issue litigated and decided in one stage of a case should 

not be relitigated at a later stage.

4. Appeal and Error. Under the law-of-the-case doctrine, an appellate 

court’s holdings on issues presented to it conclusively settle all matters 

ruled upon, either expressly or by necessary implication.

5. Judgments: Appeal and Error. The law-of-the-case doctrine applies 

with greatest force when an appellate court remands a case to an inferior 

tribunal. Upon remand, a district court may not render a judgment or 

take action apart from that which the appellate court’s mandate directs 

or permits.

6. Judgments: Waiver: Appeal and Error. Under the mandate branch 

of the law-of-the-case doctrine, a decision made at a previous stage of 

litigation, which could have been challenged in the ensuing appeal but 

was not, becomes the law of the case; the parties are deemed to have 

waived the right to challenge that decision. But an issue is not considered waived if a party did not have both an opportunity and an incentive 

to raise it in a previous appeal.

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

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

Appeal from the County Court for Buffalo County: Gerald 

R. Jorgensen, Jr., Judge. Affirmed.

Blake E. Johnson, of Bruning Law Group, for appellant.

Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, 

for appellee.

Heavican, C.J., Cassel, Stacy, Papik, and Freudenberg, 

JJ., and Noakes, District Judge.

Heavican, C.J.

INTRODUCTION

This case comes to us following our remand to the county 

court for a redetermination of damages owed by the defendant. 

At issue is whether the county court erred when it declined to 

award prejudgment interest to the estate. The estate appeals. 

We affirm.

BACKGROUND

This is the second time this court has been presented with an 

appeal from the estate of Madeline A. Adelung (Estate). 1 In our 

earlier case, Adelung’s son, Kent A. Adelung, appealed from 

the decision of the county court finding him liable following 

an action for an equitable accounting sought by the Estate’s 

personal representative, Lynda Adelung Heinen, Madeline’s 

daughter.

On appeal, we concluded that the Estate was barred by 

the statute of limitations from recovering a portion of the 

farm income it alleged that Kent had wrongfully collected. 

We affirmed, as modified, the county court’s judgment and 

remanded the cause to the county court with directions for the 

court to calculate the judgment in conformity with our opinion.

Upon remand, the Estate sought prejudgment interest. 

The county court noted that it had not previously ordered 

1 See In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

prejudgment interest, that this court’s opinion had made no 

mention of prejudgment interest, and that to award it would 

“not [be] proper.” The Estate appeals, and Kent cross-appeals.

ASSIGNMENTS OF ERROR

The Estate assigns that the county court erred in not applying 

prejudgment interest under Neb. Rev. Stat. § 45-104 (Reissue 

2021) to the amount of the modified judgment.

On cross-appeal, Kent assigns that the county court erred 

in not concluding that the Estate failed to adequately plead or 

otherwise raise the issue of prejudgment interest and, as such, 

did not have a substantive right to recover such interest.

STANDARD OF REVIEW

[1,2] The construction of a mandate issued by an appellate 

court presents a question of law. 2 On questions of law, we are 

obligated to reach a conclusion independent of the determination reached by the court below. 3

ANALYSIS

This case examines the intersection of the awarding of prejudgment interest and the law-of-the-case doctrine. Some background on both principles is helpful.

Statutory authority for the awarding of prejudgment interest 

is separately found in Neb. Rev. Stat. § 45-103.02 (Reissue 

2021) and § 45-104. We clarified in Weyh v. Gottsch 4 that 

§§ 45-103.02 and 45-104 are

alternate and independent statutes authorizing the recovery 

of prejudgment interest. In other words, the Legislature 

has created three separate ways to recover prejudgment 

interest, and none is preferred. Section 45-103.02(1) 

authorizes the recovery of prejudgment interest on unliquidated claims when the statutory preconditions are met, 

2 County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).

3 Id.

4 Weyh v. Gottsch, 303 Neb. 280, 313-14, 929 N.W.2d 40, 63 (2019).
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

§ 45-103.02(2) authorizes the recovery of prejudgment 

interest on liquidated claims, and § 45-104 authorizes the 

recovery of prejudgment interest on four categories of 

contract-based claims without regard to whether the claim 

is liquidated or unliquidated.

[3-5] As noted, the law-of-the-case doctrine is also implicated here. This doctrine reflects the principle that an issue 

litigated and decided in one stage of a case should not be relitigated at a later stage. 5 Under that doctrine, an appellate court’s 

holdings on issues presented to it conclusively settle all matters 

ruled upon, either expressly or by necessary implication. 6 The 

doctrine applies with greatest force when an appellate court 

remands a case to an inferior tribunal. 7 Upon remand, a district 

court may not render a judgment or take action apart from that 

which the appellate court’s mandate directs or permits. 8

[6] Under the mandate branch of the law-of-the-case doctrine, a decision made at a previous stage of litigation, which 

could have been challenged in the ensuing appeal but was not, 

becomes the law of the case; the parties are deemed to have 

waived the right to challenge that decision. 9 But an issue is not 

considered waived if a party did not have both an opportunity 

and an incentive to raise it in a previous appeal. 10

The Nebraska Court of Appeals discussed the intersection 

of prejudgment interest and the mandate branch of the law-ofthe-case doctrine in Valley Cty. Sch. Dist. 88-0005 v. Ericson 

State Bank.

 11 In that case, a bank (found liable below) appealed 

from, among other things, the district court’s award of 

5 deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 Valley Cty. Sch. Dist. 88-0005 v. Ericson State Bank, 18 Neb. App. 624, 

790 N.W.2d 462 (2010).
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

prejudgment interest at a rate of 12 percent per annum. The 

Court of Appeals affirmed. On remand, the district court 

entered an order in conformity with the Court of Appeals’ 

opinion and awarded postjudgment interest at the same rate. 

The bank again appealed. 12

In defending the district court’s award, the appellee contended that the law-of-the-case doctrine operated to prevent 

the bank from challenging the 12-percent rate applied to the 

postjudgment amount. The Court of Appeals disagreed:

In Valley Cty. I . . . , we specifically stated that § 45-104 

applied “[b]ecause there was no ‘otherwise agreed’ upon 

rate for prejudgment interest” and that [the appellee] was 

entitled to the 12–percent prejudgment interest until the 

entry of judgment. Neither the district court’s judgment 

nor our opinion stated that the 12–percent interest rate 

would continue to be applied after entry of judgment; 

thus, the [b]ank did not have a reason to raise the issue 

of the appropriate postjudgment interest rate at that time. 

Had the district court’s initial judgment expressly stated 

a postjudgment interest rate, [the appellee’s] argument 

would have had merit. But because the judgment was 

silent on the matter of postjudgment interest, we reject 

[the appellee’s] argument that the matter should have 

been raised in the prior appeal. 13

Also relevant to our determination is Neb. Ct. R. Pldg. 

§ 6-1108(a), which states:

A pleading which sets forth a claim for relief, whether an 

original claim, counterclaim, cross-claim, or third-party 

claim, shall contain (1) a caption, (2) a short and plain 

statement of the claim showing that the pleader is entitled 

to relief, and (3) a demand for judgment for the relief the 

pleader seeks. Relief in the alternative or of several different types may be demanded. If the recovery of money 

12 See id.

13 Id., 18 Neb. App. at 628-29, 790 N.W.2d at 466.
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

be demanded, the amount of special damages shall be 

stated but the amount of general damages shall not be 

stated; and if interest thereon be claimed, the time from 

which interest is to be computed shall also be stated.

(Emphasis supplied.)

In Albrecht v. Fettig,

 14 the Court of Appeals discussed 

whether the failure to request interest in a complaint precluded 

a litigant from recovering interest, 15 noting that the purpose of 

compliance with § 6-1108 was to provide notice of the relief 

that the plaintiff was attempting to obtain. 16 In AVG Partners I,

this court expanded the Albrecht holding to note that “compliance with § 6-1108(a) is not determinative where entitlement 

to interest is based on statute and the adverse party had notice 

and an opportunity to be heard prior to judgment.” 17 Based on 

this, we concluded that although prejudgment interest was not 

requested in the complaint, it was “the subject of extensive 

argument prior to judgment” 18 and thus was recoverable.

The county court and the parties frame the issue presented 

by this appeal primarily as one involving the law-of-the-case 

doctrine. The parties ask us to determine whether the fact that 

this court’s mandate failed to order prejudgment interest means 

that to do so would be outside of that prior mandate.

Generally speaking, a lower court may do nothing other than 

what a higher court has ordered it to do via the higher court’s 

mandate. And in this case, we ordered the lower court to redetermine the damages award once we concluded that the statute 

of limitations operated to prevent the Estate from recovering 

some of the farm income that had been awarded to it by the 

county court. This did not include interest.

14 Albrecht v. Fettig, 27 Neb. App. 371, 932 N.W.2d 331 (2019).

15 See AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 

212 (2020) (quoting Albrecht, supra note 14).

16 Id.

17 Id., 307 Neb. at 64, 948 N.W.2d at 230.

18 Id.
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE ESTATE OF ADELUNG

Cite as 312 Neb. 647

As noted above, there are some instances where issues outside of the mandate may be raised on remand—namely, if there 

was no opportunity or incentive to appeal from the issue now 

raised. But we need not decide here whether the Estate should 

have appealed from the county court’s failure to award interest 

below. Rather, we find dispositive the Estate’s failure to seek 

interest in its pleading or otherwise raise the issue of interest 

prior to judgment.

The purpose behind compliance with § 6-1108 of the pleading rules is to provide notice to other litigants that prejudgment 

interest is at issue. If there was notice, the failure to comply 

with § 6-1108 might be excusable. But here, there was no 

compliance with § 6-1108, nor was there notice to Kent on the 

issue of prejudgment interest prior to the entry of judgment 

in the Estate’s favor. On these facts, we find no error in the 

district court’s refusal to award interest on remand. Finding no 

merit to the Estate’s assignment of error, albeit for a different 

reason than that stated by the county court, we affirm. We need 

not reach Kent’s assignment of error on cross-appeal.

CONCLUSION

The decision of the county court is affirmed.

Affirmed.

Miller-Lerman, J., participating on briefs.

Funke, J., not participating.