- 933 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

Merie B. on behalf of Brayden O., appellee, v. 

State of Nebraska Department of Health and

Human Services and Vivianne M. Chaumont, 

director of Division of Medicaid and Long

Term Care, Department of Health and

Human Services, appellants.

___ N.W.2d ___

Filed February 24, 2017. No. S-16-437.

1. Judgments: Appeal and Error. The construction of a mandate issued 

by an appellate court presents a question of law reviewed independently 

of the lower court’s conclusion.

2. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record.

3. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

4. 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.

5. ____: ____. A party may not extend his or her request for relief beyond 

that which was initially determined by an appellate court.

Appeal from the District Court for Lancaster County: Robert

R. Otte, Judge. Reversed and remanded with directions.

Douglas J. Peterson, Attorney General, and Ryan S. Post 

for appellants.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/24/2017 08:08 AM CST
- 934 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

Terrance A. Poppe, Andrew K. Joyce, and Annie E. Brown, 

Senior Certified Law Student, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, 

and Funke, JJ.

Kelch, J.

NATURE OF CASE

Merie B. initiated this action on behalf of her disabled 

daughter, Brayden O., after the Nebraska Department of 

Health and Human Services (DHHS) determined that Brayden 

was no longer eligible for home and community-based waiver 

services. Merie appealed to the district court for Lancaster 

County, which affirmed the determination made by DHHS. 

In a prior appeal to this court, we reversed the district 

court’s judgment and remanded the cause with directions that 

the district court order DHHS to reinstate waiver services 

to Brayden, effective as of the date services were originally terminated.

Upon remand, Merie requested reimbursement for expenses 

she incurred due to the wrongful termination of Brayden’s 

services, as well as attorney fees. The district court granted 

Merie’s request and entered judgment against DHHS in the 

amount of $76,260.48. DHHS and the director of its Medicaid 

and long-term-care division now appeal from the district 

court’s judgment.

BACKGROUND

Merie is the mother of Brayden, who suffers from CoffinLowry Syndrome. Brayden, who was 17 years old at the time 

of the court’s hearing in this case, has the cognitive awareness 

of a 4- or 5-year-old child and requires constant supervision. 

In addition, Brayden has a seizure disorder, a heart disorder, 

and a myriad of neurological deficiencies, as well as vision 

and hearing deficits. Due to her disabilities, Brayden had 

been receiving home and community-based waiver services 
- 935 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

through the Medicaid division of DHHS since approximately 

2001. However, on November 11, 2012, Brayden’s services 

were terminated after DHHS reassessed her condition and 

determined that she no longer met the necessary qualifications for such services. Merie appealed DHHS’ determination, which was affirmed following an administrative 

appeal hearing.

Merie then filed a petition for review under Nebraska’s 

Administrative Procedure Act, Neb. Rev. Stat. § 84-901 et seq. 

(Reissue 2008 & Cum. Supp. 2012), in the district court for 

Lancaster County. The district court affirmed DHHS’ determination that Brayden no longer qualified for waiver services. 

On appeal to this court, in Merie B. on behalf of Brayden O. 

v. State (Merie B. I),1 we reversed the district court’s judgment 

and remanded the cause with directions that the district court 

order DHHS to reinstate waiver services to Brayden, effective 

November 11, 2012.

Upon remand, Merie filed a “Motion to Determine 

Expenses” in the district court. She requested an award in the 

amount of $65,394.28 for reasonable and necessary childcare 

expenses that were incurred due to the wrongful termination 

of Brayden’s services by DHHS. A hearing was held on the 

motion, during which Merie testified regarding the expenses 

she incurred while Brayden’s services were terminated, including daycare expenses of $45,349.26, health insurance premiums totaling $15,477.01, and out-of-pocket medical expenses 

of $2,233.96. DHHS objected to the presentation of any evidence regarding Merie’s request for payment of health insurance premiums on the bases that it was not contested at the 

agency level and was outside the scope of the initial petition 

for review. The district court overruled DHHS’ objections and 

allowed the testimony.

1 See Merie B. on behalf of Brayden O. v. State, 290 Neb. 919, 863 N.W.2d 

171 (2015).
- 936 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

Merie testified that Brayden’s health insurance premiums had previously been paid by DHHS through the “Health 

Insurance Premium Payment” (HIPP) program. After Merie 

received notice from DHHS that Brayden’s waiver services 

were being terminated, she received a separate notice that 

Brayden was being terminated from the HIPP program as well. 

Merie acknowledged that she did not appeal Brayden’s termination from the HIPP program, because her understanding was 

that Brayden’s termination from waiver services rendered her 

ineligible for HIPP.

Merie further testified that she had not yet been reimbursed 

for any expenses since our mandate was issued in August 

2015. DHHS acknowledged that it owed Merie for childcare 

expenses and out-of-pocket medical expenses, but objected 

to paying for the health insurance premiums because Merie 

did not appeal Brayden’s termination from the HIPP program. 

As for the childcare expenses, DHHS indicated that it would 

take time to arrange those payments due to the administrative process required by Medicaid. It explained that federal 

Medicaid regulations did not allow DHHS to issue payments 

to recipients. Instead, each daycare provider must apply to be 

approved through the Medicaid system and then submit billing 

statements to DHHS, after which submission DHHS would 

remit payment directly to the providers. At that point, Merie 

would have to seek reimbursement from the providers for the 

amounts she had previously paid.

The district court agreed with DHHS that the HIPP expenses 

were not part of the underlying administrative action or 

the petition for review before the district court, nor was it 

addressed on appeal to this court. Nonetheless, it found that 

the health insurance premiums paid by Merie should be reimbursed by DHHS, because the denial of HIPP benefits would 

not have occurred but for DHHS’ improper termination of 

Brayden’s waiver services. It found that our opinion required 

Brayden to be placed in the same position she would have 

been had the waiver services not been improperly terminated, 
- 937 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

which included eligibility for the HIPP program. Thus, the 

district court ordered DHHS to reimburse Merie for health 

insurance premiums in the amount of $15,477.01, in addition 

to the $45,349.26 it had agreed to pay for daycare services 

due under the waiver program. Finally, the district court found 

that DHHS had “improperly placed barriers preventing Merie 

from receiving the amounts due to her” and therefore ordered 

DHHS to pay attorney fees incurred by Merie since the issuance of our mandate, in the amount of $4,506. It entered judgment against DHHS in the total amount of $76,260.48, which 

included additional attorney fees that had previously been 

awarded in our mandate. DHHS and the director appeal from 

that judgment.

ASSIGNMENTS OF ERROR

DHHS and the director assign that the district court erred 

by (1) issuing an order outside the scope of the directions 

on remand, (2) receiving additional evidence at the hearing 

on Merie’s motion to determine expenses, (3) considering an 

issue not presented as part of the petition for review, (4) ordering DHHS to pay Merie directly instead of following federal 

Medicaid requirements, and (5) awarding additional attorney 

fees to Merie.

STANDARD OF REVIEW

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

court presents a question of law reviewed independently of the 

lower court’s conclusion.2

[2,3] A judgment or final order rendered by a district court 

in a judicial review pursuant to the Administrative Procedure 

Act may be reversed, vacated, or modified by an appellate 

court for errors appearing on the record.3 When reviewing an order of a district court under the Administrative 

2 See Anderson v. Houston, 277 Neb. 907, 766 N.W.2d 94 (2009).

3 Merie B. I, supra note 1.
- 938 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

Procedure Act for errors appearing on the record, the inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable.4

ANALYSIS

This matter initially came before this court upon an appeal 

by Merie after the district court, pursuant to the Administrative 

Procedure Act, affirmed DHHS’ determination that Brayden no 

longer qualified for waiver services. We reversed the district 

court’s judgment and remanded the cause to the district court 

with directions to order DHHS to reinstate waiver services to 

Brayden effective November 11, 2012.5

After remand, the district court correctly entered an order 

spreading the mandate and ordering DHHS to reinstate waiver 

services to Brayden effective November 11, 2012. Rather 

than seeking enforcement of that order by instituting a new 

proceeding pursuant to the Administrative Procedure Act, 

Merie filed a motion in district court. Said motion requested 

that the district court award her an additional $65,394.28 for 

reasonable and necessary childcare expenses incurred as a 

result of the wrongful termination of Brayden’s services by 

DHHS. Although the district court was to function not as a 

trial court but as an intermediate court of appeals,6 it held a 

hearing, over DHHS’ objections. After receiving evidence, on 

April 18, 2016, the district court issued an order awarding 

a direct reimbursement of medical expenses and premiums 

to Merie.

DHHS and the director argue that the district court erred 

in ordering it to pay the insurance expenses and premiums, 

because such order exceeded the scope of our mandate in 

4 Id.

5 See id.

6 See Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 

N.W.2d 570 (2007).
- 939 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

Merie B. I. On the other hand, Merie argues that the mandate 

required DHHS to reinstate Brayden’s waiver services effective November 11, 2012, and that therefore, any adverse consequences that were directly caused by the wrongful termination 

should be remedied, including her termination from the HIPP 

program. We agree with DHHS and the director that the district 

court exceeded the scope of the mandate, and we therefore 

vacate the district court’s April 18, 2016, order.

[4,5] It is well established that 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.7 We have also 

said that a party may not extend his or her request for relief 

beyond that which was initially determined by this court.8 For 

example, in Gates v. Howell,

9

 we ordered the district court to 

enter a judgment on remand invalidating the tax treatment of 

mobile homes as motor vehicles. After the district court complied with that mandate, a new tax was imposed on the mobile 

homes by the assessor. Thereafter, the appellants filed an application for relief, which the district court denied. On appeal, we 

affirmed the district court’s decision, reasoning:

“‘Where the appellate court remands a cause with directions to enter judgment for the plaintiff in a certain 

amount, the judgment of the appellate court is a final 

judgment in the cause and the entry thereof in the lower 

court is a purely ministerial act. No modification of the 

judgment so directed can be made, nor may any provision be engrafted on, or taken from it. That order is conclusive on the parties, and no judgment or order different 

from, or in addition to, that directed by it can have any 

7 State ex. rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 

(2010). See, also, Xerox Corp. v. Karnes, 221 Neb. 691, 380 N.W.2d 277 

(1986).

8 VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d 651 

(2007), citing Gates v. Howell, 211 Neb. 85, 317 N.W.2d 772 (1982).

9 Gates v. Howell, supra note 8.
- 940 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE

Cite as 295 Neb. 933

effect, even though it may be such as the appellate court 

ought to have directed.’”10

These principles of law control this appeal.

In Merie B. I, this court reversed the district court’s judgment, which was the final determination of the rights of the 

parties in the action. Accordingly, our disposition of that 

appeal constituted a final determination of the rights of the parties in an action.11 In other words, there were no further issues 

before the district court on remand to resolve.

Although we are sympathetic to the district court’s attempt 

to render a remedy due to the special needs of Brayden and 

the failure to act by DHHS, the district court was without 

authority to expand the mandate and hold an evidentiary hearing on Merie’s “Motion to Determine Expenses.” On remand, 

the district court was to perform only the purely ministerial 

act of spreading the judgment on its record. Any additional 

remedy sought by Merie must be pursuant to another proceeding—not as an enlargement of this appeal. For the reasons set 

forth above, we vacate the district court’s April 18, 2016, order, 

which also awarded Merie additional fees.

CONCLUSION

We determine that the district court exceeded the scope of 

our mandate in Merie B. I, and therefore, the district court’s 

order of April 18, 2016, is hereby reversed, and the cause is 

remanded with directions to vacate the judgment.

Reversed and remanded with directions.

Stacy, J., not participating.

10 Id. at 89, 317 N.W.2d at 775.

11 See Neb. Rev. Stat. § 25-1301 (Reissue 2016). See, also, Huskey v. 

Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014).