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Echo Group, Inc., appellee and cross-appellant, v. 

Tradesmen International, an Ohio corporation, 

appellee, and Lund-Ross Constructors, Inc., 

a Nebraska corporation, intervenorappellant 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, intervenorappellant 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.

Nebraska Supreme Court Online Library

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

12/16/2022 01:05 AM CST
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3. Statutes: Appeal and Error. Statutory interpretation presents a question 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 statute. 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 uncontroverted 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, conjecture, 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 interpretation 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 extending 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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16. ____. 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 integrity, 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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Dougherty, 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 foreclosures 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 interest, 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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II. 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 electrical 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 living center, revamping an old apartment building into new apartments, 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 performance 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 LundRoss, “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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3. 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 LundRoss, 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 payment 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 equitable 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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case 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 discussed 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 prejudgment 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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of material fact existed and in granting Echo summary judgment on its claims for construction lien foreclosure.

In two cases—cases Nos. S-21-730 and S-21-770—LundRoss 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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V. ANALYSIS

1. Summary Judgment

Lund-Ross argues that the district court erred in granting 

summary judgment in three ways. In all three appeals, LundRoss 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, LundRoss 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 LundRoss 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 construction lien foreclosure proceeding, it reasons that a balancing of 

equities—which, it argues, is inherent in an equity action—precludes 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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One 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 appellate 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 damages,” 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 employing a summary judgment, at least where there are no factual 

disputes. The Nebraska precedent, in particular, differs significantly 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 fraternal 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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precluding the individuals and corporate entities from using 

the fraternal benefit corporation’s goodwill, property, or organization in the business of the insurance company. While an 

action for injunction sounds in equity 13 and an action to foreclose a construction lien is one grounded in equity, 14 the similarity 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 general 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 foreclosure 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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the movant is entitled to judgment if the evidence were uncontroverted 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 responsive 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 development of facts. But the time to show a genuine dispute regarding 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 summary judgment. 21

As noted, there is no dispute that Echo complied with the 

statutory requirements of the Act with respect to its construction 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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followed 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 remedy 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 claimant’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 render 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 provides 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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price is defined as “the amount agreed upon by the contracting 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 contracting 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 requesting 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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[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. LundRoss argues that any judgment against it—as opposed to 

the surety per § 52-142(3)—was error. We disagree for several 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 corporations 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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lien 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 statute 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 assessing 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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(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 disagreed that Echo’s construction lien was an instrument in writing 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 interest 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 interest. 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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whether the claim is liquidated. 44 Although Echo did not identify § 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 proceedings 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 submitted to it for disposition. 46 Thus, in cases Nos. S-21-729 and 

S-21-730—where the court found no entitlement to prejudgment 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 prejudgment 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 section 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 liquidated, 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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unliquidated. 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 prejudgment interest. Section 45-104 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. 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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is “[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 question: 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 interest 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 running 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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denying 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 attorney 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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[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 considered 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 construction 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 subsection 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 second 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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This 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 section of that uniform act which corresponds to § 52-157 provides examples of wrongful deprivation which would lead to 

liability under the section:

(1) owner contracts under incorrect name so that claimants 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 mistaken 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 construction 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 construction lien, which Echo obtained. The Act authorized foreclosure 

of a lien, which Echo pursued. Echo alleged no wrongful conduct 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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Act 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 wherever a party prevails on a construction lien claim and foreclosure, 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 authorized 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 insurance policy, except workers’ compensation insurance, or 

upon any certificate issued by a fraternal benefit society, against any company, person, or association doing 

business in this state, the court, upon rendering judgment 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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Echo argues that a surety bond is an insurance policy for purposes 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 construction 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 otherwise 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 company 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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under § 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 proceeding 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 showing 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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thus, 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 specifically 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 “assignment 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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(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 conclude 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 foreclose 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 conformity 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.