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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

Jeremy Barnett, appellant, v. Happy Cab Co., 

a Nebraska corporation, et al., appellees.

___ N.W.2d ___

Filed April 28, 2022. No. S-21-407.

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. Trial: Appeal and Error. The standard of review of a trial court’s 

determination of a request for sanctions is whether the trial court abused 

its discretion.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

4. Courts: Judgments: Appeal and Error. 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.

5. ____: ____: ____. 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.

6. Judgments: Appeal and Error. No judgment or order different from, or 

in addition to, the appellate mandate can have any effect.

7. ____: ____. Where the mandate makes the opinion of an appellate court 

a part thereof by reference, the opinion should be examined in conjunction with the mandate to determine the nature and terms of the judgment 

to be entered or the action to be taken thereon.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Vacated and remanded for further 

proceedings.

Nebraska Supreme Court Online Library

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

06/17/2022 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

John C. Fowles, of Fowles Law Office, P.C., L.L.O., for 

appellant.

Michael T. Gibbons and Raymond E. Walden, of Woodke & 

Gibbons, P.C., L.L.O., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Jeremy Barnett was injured over 10 years ago while getting into a taxicab. Barnett filed a personal injury lawsuit 

against the driver of the taxicab and corporations alleged to 

have employed the driver. Days before a jury trial was to commence, counsel for the driver and corporations filed an offer 

to confess judgment and Barnett filed an acceptance. While 

one might assume that an accepted offer to confess judgment 

would quickly bring about the end of litigation, this one definitely did not. In fact, it has generated a great deal more litigation, including a prior appeal in which the Nebraska Court of 

Appeals vacated a district court order entering judgment based 

on the offer to confess judgment. See Barnett v. Happy Cab 

Co., 28 Neb. App. 438, 945 N.W.2d 200 (2020).

The prior appeal has now led to another. Barnett filed this 

appeal after the district court understood the Court of Appeals’ 

decision to require Barnett to repay funds he received from 

one of the corporations and its liability insurer while the 

prior appeal was pending. When Barnett did not repay those 

amounts as the district court ordered, the district court dismissed his lawsuit as a sanction for his noncompliance. We 

find that the district court lacked authority to require Barnett 

to repay the funds, and we therefore vacate the district court’s 

order requiring repayment and its order dismissing Barnett’s 

case for failing to do so and remand the cause for further proceedings.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

BACKGROUND

Personal Injury Lawsuit.

This lawsuit began when Barnett filed a complaint against 

Happy Cab Co. (Happy Cab), Checker Cab Co. (Checker 

Cab), and Richard C. Kincaid (collectively appellees). Barnett 

alleged that on a night in January 2011, as he was getting into 

a taxicab driven by Kincaid, the taxicab moved and struck 

Barnett’s head. Barnett claimed that he was injured as a result 

of Kincaid’s negligence. Barnett also alleged that Kincaid was 

an employee of Happy Cab “and/or” Checker Cab and that 

Kincaid’s negligence was imputed to those corporations under 

the doctrine of respondeat superior.

Happy Cab and Checker Cab filed a joint answer denying 

Kincaid was their employee. Kincaid filed a separate answer 

denying he was an employee of either taxicab company. Both 

answers were filed by the same attorney.

Offer to Confess Judgment and 

Subsequent Proceedings.

A few days before a jury trial was scheduled to begin, the 

attorney representing appellees filed an offer to confess judgment in the amount of $75,000. Language at the beginning of the 

offer to confess judgment stated that the offer was being made 

by the “Defendants, Happy Cab Co. and Paratransit Insurance 

Co.” Language at the end of the offer, however, stated that it 

was “[r]espectfully submitted” by Happy Cab, Checker Cab, 

and Kincaid. Paratransit Insurance Co. (Paratransit Insurance) 

is Happy Cab’s liability insurer, but it has never been a party 

to the lawsuit.

Barnett filed a timely acceptance of the offer to confess 

judgment. His acceptance stated that he was accepting the 

offer as to “‘defendants’ Happy Cab and Paratransit Insurance 

Co., only.”

On the day trial was to begin, Barnett informed the district 

court that an offer to confess judgment had been filed and 

that Barnett had filed an acceptance of the offer. Counsel for 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

Barnett argued that the offer and acceptance applied only to 

Happy Cab and that judgment should be entered against Happy 

Cab only. Counsel for appellees argued that the offer and 

acceptance applied to all appellees and that Checker Cab and 

Kincaid should be dismissed as defendants.

On April 15, 2019, the district court entered an order finding that the offer to confess judgment did not apply to Checker 

Cab or Kincaid and thus declined to dismiss Barnett’s claims 

against them. On the same day, the district court entered 

an “Order” of judgment against Happy Cab in the amount 

of $75,000.

Appellees responded by filing a motion to alter or amend. 

After a hearing on that motion, the district court reversed 

course. On May 9, 2019, it entered an order finding that the 

offer to confess judgment was intended to apply to all appellees and that therefore, judgment should be entered in favor 

of Barnett and against all appellees. The court entered an 

“Amended Order of Judgment” in favor of Barnett and against 

all appellees in the amount of $75,000. Barnett appealed.

First Appeal.

On appeal, Barnett made the same argument he made in 

the district court. He contended that Happy Cab was the only 

appellee to make the offer, that he accepted the offer, and 

that therefore, the district court should have entered judgment 

against Happy Cab, but allowed him to continue to pursue his 

claims against Checker Cab and Kincaid.

The Court of Appeals determined that the district court’s 

order should be reversed, but for reasons other than those 

advanced by Barnett. The Court of Appeals found that the district court committed plain error by entering judgment against 

all appellees pursuant to the offer to confess judgment. The 

Court of Appeals concluded that contract law principles 

should be applied to analyze the offer to confess judgment. 

Applying those principles, it determined that because appellees intended the offer to confess judgment to include all 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

appellees but Barnett attempted to accept only as to Happy 

Cab and Paratransit Insurance, there was no meeting of the 

minds and thus no agreement between the parties.

Because it concluded that the offer to confess judgment was 

not effectively accepted, the Court of Appeals vacated the May 

9, 2019, “Amended Order of Judgment” against all appellees. 

For the same reason, it directed the district court, upon remand, 

to vacate the April 15 order entering judgment against Happy 

Cab only. The Court of Appeals concluded its analysis by stating, “Our decision places Barnett and appellees back in the 

same position they were before the offer to confess judgment 

was filed.” Barnett v. Happy Cab Co., 28 Neb. App. 438, 446, 

945 N.W.2d 200, 206 (2020).

We denied a petition for further review filed by appellees.

On August 14, 2020, the Court of Appeals’ mandate issued 

to the district court. It stated: “The judgment which you rendered has been reversed and vacated, and cause remanded 

with directions by the Nebraska Court of Appeals. NOW, 

THEREFORE, you shall, without delay, proceed to enter judgment in conformity with the judgment and opinion of this 

court.” (Emphasis in original.)

Motion to Enforce Mandate.

After the district court spread the appellate mandate, appellees, through new counsel, filed a motion to enforce the mandate. In the motion, appellees alleged that after the district 

court entered its May 9, 2019, “Amended Order of Judgment” 

against all appellees, Happy Cab and Paratransit Insurance 

sent checks to Barnett’s counsel for $25,000 and $50,000, 

respectively, for the purposes of complying with the district court’s judgment. Appellees alleged that those checks 

were cashed in November 2019. Appellees also alleged that 

their counsel, after the Court of Appeals issued its mandate, 

requested that Barnett’s counsel repay $25,000 to Happy Cab 

and $50,000 to Paratransit Insurance, but Barnett’s counsel 

refused. Appellees requested that the district court enter an 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

order directing Barnett’s counsel to repay $25,000 to Happy 

Cab and $50,000 to Paratransit Insurance.

At a hearing on appellees’ motion to enforce the mandate, 

they offered affidavits signed by executives of Happy Cab and 

Paratransit Insurance in which they claimed that in May 2019, 

they caused checks for $25,000 and $50,000, respectively, to 

be issued to Barnett and delivered to his counsel in order to 

satisfy the district court’s judgment. Appellees also offered the 

affidavit of their counsel, who averred that after the Court of 

Appeals’ mandate was issued, he requested that Barnett’s counsel return the $25,000 and $50,000 payments, but Barnett’s 

counsel refused.

Barnett opposed appellees’ motion to enforce the mandate. 

At the hearing on the motion, he offered the affidavit of his 

counsel with supporting correspondence attached. According to 

the affidavit of Barnett’s counsel, shortly after the district court 

entered judgment in May 2019, he received an email from an 

assistant for appellees’ counsel at the time informing him that 

she would send him a payment for the judgment. Barnett’s 

counsel replied that the assistant need not send the payment 

because he planned to appeal.

According to the affidavit of Barnett’s counsel, he did not 

receive any checks from appellees or hear anything further 

about them until November 2019. In November 2019, Barnett’s 

counsel unexpectedly received a letter from the assistant of 

appellees’ then-counsel, enclosing checks for $25,000 and 

$50,000. Barnett’s counsel subsequently called appellees’ thencounsel, and they agreed that “regardless of the outcome 

of the appeal as to the other [appellees], [Barnett] would 

receive the $75,000 and Happy Cab would be dismissed.” 

Barnett’s counsel then told appellees’ then-counsel that Barnett 

would “only receipt the money as coming from Happy Cab” 

and that he would send appellees’ then-counsel a draft to 

review. Barnett’s counsel subsequently emailed appellees’ 

then-counsel an unsigned draft receipt stating that Barnett had 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

received checks satisfying the judgment against Happy Cab. 

Appellees’ then-counsel replied, “Looks good.”

Based on the affidavit of his counsel, Barnett argued that 

he and appellees’ then-counsel reached a new settlement as 

to Barnett’s claim against Happy Cab and that he retained the 

settlement checks for that reason. He asserted that pursuant 

to that settlement, Happy Cab should be dismissed from the 

case, but that he should not be required to return the funds 

previously received from Happy Cab and Paratransit Insurance. 

Appellees, on the other hand, argued that in order to enforce 

the mandate, the district court was required to order Barnett to 

return those funds.

The district court entered an order granting the relief 

sought by appellees. In the order, the district court stated the 

following:

In its opinion, the Nebraska Court of Appeals held 

that the offer to confess judgment and the acceptance of 

the offer by [Barnett] did not create a contract between 

[Barnett] and any of the [appellees] and as a result 

reversed the May 9, 2019 amended order of judgment 

and remanded the cause to the District Court. The Court 

of Appeals further stated that its decision placed Barnett 

and [appellees] in the same position they were in before 

the offer to confess judgment was filed and, as a result, 

the Court finds that [Barnett] and his counsel shall repay 

to counsel for [Happy Cab] the amount of $25,000.00 and 

to [Paratransit Insurance] the amount of $50,000.00 on or 

before the 19th of January, 2021.

Motion for Sanctions and Dismissal.

After Barnett did not repay the funds as ordered by the district court, appellees filed a motion requesting that the district 

court dismiss Barnett’s case as a sanction for noncompliance. 

The district court sustained the motion and dismissed the 

action without prejudice.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

Barnett timely appealed. We moved the case to our docket 

on our own motion. See Neb. Rev. Stat. § 24-1106 (Cum. 

Supp. 2020).

ASSIGNMENTS OF ERROR

Barnett assigns a number of errors, but they can be effectively consolidated and restated as two. He contends that the 

district court erred (1) by ordering him to repay the amounts 

he received from Happy Cab and Paratransit Insurance and 

(2) by dismissing his case when he failed to comply with 

that order.

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 determination reached by the court below. TransCanada Keystone 

Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 145 (2020).

[2,3] The standard of review of a trial court’s determination 

of a request for sanctions is whether the trial court abused its 

discretion. Holste v. Burlington Northern RR. Co., 256 Neb. 

713, 592 N.W.2d 894 (1999). A judicial abuse of discretion 

exists when reasons or rulings of a trial judge are clearly 

untenable, unfairly depriving a litigant of a substantial right 

and denying just results in matters submitted for disposition. Id.

ANALYSIS

We begin our analysis with Barnett’s argument that the 

district court erred by ordering him to repay the amounts 

he received from Happy Cab and Paratransit Insurance. The 

district court entered the order in response to appellees’ 

argument that such an order was required by the Court of 

Appeals’ mandate.

[4-6] There is no question that the district court was obligated to follow the Court of Appeals’ mandate. A district court 

has an unqualified duty to follow the mandate issued by an 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

appellate court and must enter judgment in conformity with the 

opinion and judgment of the appellate court. State v. Payne, 

298 Neb. 373, 904 N.W.2d 275 (2017). 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. Id. No 

judgment or order different from, or in addition to, the appellate mandate can have any effect. Id.

[7] While Barnett acknowledges that the district court was 

bound to follow the Court of Appeals’ mandate, he contends 

that the district court’s order directing him to repay the amounts 

he received from Happy Cab and Paratransit Insurance was not 

required by the mandate. Where, as here, the mandate makes 

the opinion of an appellate court a part thereof by reference, 

the opinion should be examined in conjunction with the mandate to determine the nature and terms of the judgment to be 

entered or the action to be taken thereon. Id.

Our review of the Court of Appeals’ opinion leads us to 

conclude that its mandate did not require the district court 

to order Barnett to repay the funds he received from Happy 

Cab and Paratransit Insurance in November 2019. As discussed above, the district court entered two judgments in this 

case based on the offer to confess judgment. It first entered 

judgment against Happy Cab only, and then, after appellees 

filed a motion to alter or amend, it entered judgment against 

all appellees. Because the Court of Appeals concluded that 

Barnett had not effectively accepted an offer to confess judgment, it determined that the district court should not have 

entered a judgment at all. It therefore vacated the district 

court’s judgment against all appellees and directed the district 

court, on remand, to also vacate its prior judgment against 

Happy Cab only.

While the Court of Appeals’ opinion focused on whether 

there was an effective acceptance of the offer to confess judgment and directed that the district court’s judgments based 

on the offer to confess judgment be vacated, the evidence 

submitted by the parties on appellees’ motion to enforce the 
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311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

mandate concerned other matters. Specifically, that evidence 

pertained to whether the payment of funds to Barnett by Happy 

Cab and Paratransit Insurance while the prior appeal was pending was, as appellees contend, the compulsory satisfaction of 

a judgment or, as Barnett contends, payment pursuant to a 

recently reached settlement agreement. We see nothing in the 

Court of Appeals’ opinion that spoke to the appropriate characterization of that payment or what the district court must do 

regarding that payment. Indeed, the Court of Appeals could not 

have spoken to these issues, because there is no way it could 

have even known that Barnett had received the funds while the 

appeal was pending.

In ordering Barnett to repay the funds he received from 

Happy Cab and Paratransit Insurance, the district court relied 

on the Court of Appeals’ concluding language that its decision 

“places Barnett and appellees back in the same position they 

were before the offer to confess judgment was filed.” Barnett v. 

Happy Cab Co., 28 Neb. App. 438, 446, 945 N.W.2d 200, 206 

(2020). Appellees likewise contend that this language required 

the district court to order the repayment of funds. We disagree. 

The context for this concluding statement was the Court of 

Appeals’ direction that the district court’s prior judgments be 

vacated. The Court of Appeals was observing that the vacation 

of those judgments would return the parties to the position they 

were in before any judgments had been entered, not directing 

that the district court make additional orders not expressly discussed by the Court of Appeals.

Our conclusion that the district court’s order directing 

repayment was not required by the Court of Appeals’ mandate would not allow us to affirm unless the district court had 

some other authority to enter the order. On this subject, appellees assert that because Happy Cab and Paratransit Insurance 

issued the checks to Barnett under the compulsion of a nowvacated judgment, Barnett’s retention of those funds constitutes unjust enrichment. As we have noted, Barnett disputes 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

this characterization of the payment, contending that the payment was made pursuant to a new settlement agreement. As 

we will explain, we need not resolve this dispute between the 

parties here.

To the extent appellees suggest that the district court could 

issue its order requiring that Barnett repay Happy Cab and 

Paratransit Insurance because appellees established that Barnett 

had been unjustly enriched, we disagree. While unjust enrichment is certainly a recognized cause of action under Nebraska 

law, see, e.g., Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 

(1996), appellees have not pled an unjust enrichment cause of 

action in this case. Moreover, the district court’s order appears 

to grant relief in favor of Paratransit Insurance, but Paratransit 

Insurance is not even a party to this case, let alone a party that 

has pled a cause of action against Barnett. And finally, even 

if the right cause of action had been pled by the right parties, 

those parties would still need to litigate that cause of action, 

and that has not occurred here either. The district court has 

entered an order based only on its understanding of the Court 

of Appeals’ mandate.

Because we find that the district court, on this record, lacked 

authority to enter the order directing that Barnett repay the 

funds he previously received from Happy Cab and Paratransit 

Insurance, we vacate that order. And because the district court 

did not have authority to enter that order, it follows that the 

district court abused its discretion by dismissing Barnett’s case 

as a sanction for noncompliance. We thus also vacate the order 

dismissing the case and remand the cause for further proceedings. We express no opinion as to whether appellees may have 

some recourse they have not yet pursued with respect to the 

funds Barnett received while the first appeal was pending.

CONCLUSION

We find that on this record, the district court lacked authority to order Barnett to repay the funds he previously received 

from Happy Cab and Paratransit Insurance. We vacate that 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BARNETT v. HAPPY CAB CO.

Cite as 311 Neb. 464

order and the district court’s order dismissing Barnett’s case 

and remand the cause for further proceedings.

Vacated and remanded for 

further proceedings.

Cassel, J., concurring.

An “ancient reproach” cautions that “‘justice delayed is justice denied.’” 1 The court’s opinion today, which I join in full, 

vividly illustrates the consequences of imprecise drafting in the 

form of years of delay and needless expense.

I write separately only to say explicitly what the court 

implies: If the parties making the offer to confess judgment 

(through prior counsel) and the party purporting to accept it 

had used appropriate precision and attention to detail, this 

saga could have been avoided and justice achieved without 

the two appeals and underlying proceedings recounted in the 

court’s opinion.

1 See Rylee v. Marett, Sheriff, 121 S.C. 366, 378, 113 S.E. 483, 487 (1922). 

See, also, In re Supreme Court Commissioners, 100 Neb. 426, 160 N.W. 

737 (1916).