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TransCanada Keystone Pipeline, LP, appellant, 

v. Arthur R. Tanderup and Helen J. Tanderup, 

husband and wife, and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Frank C. Morrison, also known as Frank 

Morrison, and Lynn H. Morrison, husband 

and wife, and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Jerry Carpenter and Charlayne Carpenter, 

husband and wife, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Germaine G. Berry et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Cottonwood Ridge LLC et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Cheri G. Blocher and Michael J. Blocher, 

wife and husband, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Frankie Maughan, also known as Frankie 

Maughan, Jr., et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Todd J. Stelling and Lisa J. Stelling, 

husband and wife, and John Doe, 

appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Karen G. Berry and John Doe, appellees.

Nebraska Supreme Court Online Library

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

05/29/2020 09:07 AM CDT
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TransCanada Keystone Pipeline, LP, appellant, 

v. Richard E. Stelling et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Joshua R. Stelling and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Robert R. Krutz and Beverly J. Krutz, 

husband and wife, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. CHP 4 Farms, LLC, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Carol J. Manganaro, Personal Representative 

of the Estate of Florian W. Dittrich, 

et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Carol J. Manganaro et al., appellees.

TransCanada Keystone Pipeline, LP, appellant, 

v. Tree Corners Farm, LLC, et al., appellees.

___ N.W.2d ___

Filed April 10, 2020. Nos. S-19-493 through S-19-508.

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

by an appellate court presents a question of law on which an appellate 

court is obligated to reach a conclusion independent of the determination 

reached by the court below.

2. Courts: Appeal and Error. In cases where no statement of errors was 

filed and the district court reviewed for plain error, the higher appellate 

court likewise reviews for plain error only.

3. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

4. ____: ____. In appellate procedure, a “remand” is an appellate court’s 

order returning a proceeding to the court from which the appeal originated for further action in accordance with the remanding order.
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5. Courts: Appeal and Error. After receiving a mandate, a trial court is 

without power to affect rights and duties outside the scope of the remand 

from an appellate court.

6. Judgments: Appeal and Error. A reversal of a judgment and the 

remand of a cause for further proceedings not inconsistent with the opinion, without specific direction to the trial court as to what it shall do, is 

a general remand and the parties stand in the same position as if the case 

had never been tried.

7. Courts: Judgments: Appeal and Error. The exception to this general 

rule placing the parties back where they stood before the appeal after 

such a general remand order, is that if the undisputed and admitted facts 

are such that but one judgment could be rendered, the trial court should 

enter such a judgment, notwithstanding the mandate did not specifically 

direct the trial court’s action.

8. Appeal and Error. Under the law‐of‐the‐case doctrine, the holdings of 

an appellate court on questions presented to it in reviewing proceedings 

of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either 

expressly or by necessary implication.

9. Courts: Judgments: Appeal and Error. A district court has an 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.

10. ____: ____: ____. A lower court may not modify a judgment directed 

by an appellate court; nor may it engraft any provision on it or take any 

provision from it.

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

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

12. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial 

court is without power to affect rights and duties outside the scope of the 

remand from an appellate court, any order attempting to do so is entered 

without jurisdiction and is void.

13. Courts: Judgments. Each person who takes part in the judicial process 

has a substantial right to have the courts’ orders enforced.

Appeals from the District Court for Antelope County, James 

G. Kube, Judge, on appeal thereto from the County Court 

for Antelope County, Donna F. Taylor, Judge. Judgment of 

District Court affirmed.

James G. Powers and Patrick D. Pepper, of McGrath, North, 

Mullin & Kratz, P.C., L.L.O., for appellant.
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David A. Domina and Brian E. Jorde, of Domina Law 

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

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

Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

This is a series of consolidated cases in which TransCanada 

Keystone Pipeline, LP (TransCanada), is seeking review of 

intermediate appellate orders entered by the Antelope County 

District Court, which reversed the Antelope County Court’s 

denial of appellees’ motions for attorney fees. These consolidated cases are factually related to a series of cases already 

decided by this court. 1 The question at issue in these cases is 

whether the county court plainly erred by entering a judgment 

on remand without holding an evidentiary hearing.

BACKGROUND

These appeals are from a series of condemnation proceedings initiated by TransCanada. Proceedings took place in several counties through which TransCanada planned to construct an oil pipeline, including Antelope County. TransCanada 

ultimately voluntarily dismissed all of its condemnation 

actions without prejudice, because several landowners in York 

County challenged the constitutionality of the proceedings and 

TransCanada elected to pursue approval for the pipeline route 

by the Public Service Commission.

As in the actions filed in other counties, the condemnees in 

the Antelope County actions moved for an award of attorney 

fees and costs under Neb. Rev. Stat. § 76‐726 (Reissue 2018). 

Following a hearing, the Antelope County Court originally 

found in favor of the condemnees on their motions for attorney 

fees. In making its decision, the county court reviewed the 

1 See TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 

908 N.W.2d 60 (2018).
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condemnees’ affidavits that were received, over TransCanada’s 

objections. TransCanada made several objections, including 

foundation, as well as a general hearsay objection to all of the 

affidavits submitted. The Antelope County Court overruled a 

majority of the objections. It agreed to disregard the last paragraph of each of the condemnees’ affidavits, which contained 

gratuitous praise for their counsel, but otherwise received the 

affidavits into evidence. All of the evidence on the motion for 

attorney fees was presented via affidavit.

TransCanada appealed the Antelope County Court’s order 

granting attorney fees to the Antelope County District Court, 

which determined that the Antelope County condemnees’ affidavits submitted in support of their motions were inadmissible 

hearsay. The district court reversed the award of attorney fees, 

but stated that it was unsure to what extent the county court 

had relied on the affidavits. In each case, the district court 

remanded the matter for a “rehearing on the merits.” The district court’s orders to remand were not appealed.

In similar cases in Holt and York Counties, the respective 

district courts had similarly held that the affidavits were inadmissible hearsay and remanded for a new hearing. However, 

unlike the Antelope County District Court’s order, TransCanada 

appealed the orders of remand of the Holt County District Court 

and the York County District Court. Accordingly, TransCanada 

requested to stay the mandate of remand from the district 

courts of Holt and York Counties.

In contrast, TransCanada did not request to stay the mandates from the Antelope County District Court. The Antelope 

County Court received the district court’s mandates on March 

21, 2017, and entered orders spreading the mandates on 

March 29.

Before the mandated rehearing was held, the parties made 

a stipulated request for a continuance to await resolution 

of TransCanada Keystone Pipeline v. Nicholas Family.

 2 The 

2 See id.
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stipulated request stated: “These cases are closely associated with cases in the Nebraska Court of Appeals, and the 

Court of Appeals’ rulings on those cases may impact the matters before this Court.” The Antelope County Court granted 

the continuance.

Nicholas Family consisted of 40 appeals from 40 different 

condemnation actions, which we consolidated into 4 appeals 

decided in 1 opinion. At issue in the appeals was the fact that 

the condemnees had requested attorney fees and costs under 

§ 76‐726. The condemnees, and their counsel, had in all cases 

submitted affidavits in support of the motions attesting to the 

fees and their reasonableness, and TransCanada had objected 

to all the affidavits on the basis of hearsay. 3 The county 

courts had overruled the objections and granted the requests 

for attorney fees. The district courts were split on affirming the awards of attorney fees and rejecting the affidavits 

as hearsay.

We held in Nicholas Family that the submission of affidavits was an acceptable way to introduce evidence in a motion 

for attorney fees. However, we also found that the evidence 

presented by the condemnees in those cases was insufficient to 

support the award of attorney fees. 4 We explained:

No written fee agreement or invoice for legal services was 

offered as evidence in support of the motions for attorney 

fees and costs. Nor did the landowners, in their affidavits, 

aver any specific amount owed by them to counsel.

We observe that affidavits from one or both counsel 

of record regarding the attorney fees actually incurred by 

the landowners were offered and admitted as evidence 

before each of the county courts. Under certain circumstances, such affidavits might supplement other evidence 

admitted at an attorney fees hearing and support the 

award of fees.

3 See id.

4 See id.
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But in this case, these affidavits from counsel were not 

specific as to any individual landowner and‐‐with respect 

to work done and fees charged‐‐were virtually identical 

to one another, including seeking payment of the same 

amount of money based upon the same number of hours 

of work. In fact, these affidavits raised more questions 

than they answered, notably about the nature of the fee 

agreement between the landowners and counsel, whether 

any fee agreement was akin to a contingency agreement, 

and the nature of how attorney fees sought in these eminent domain proceedings might be related to the York 

County constitutional challenge. As such, we conclude 

that on these facts, these affidavits are insufficient to support the award of attorney fees.

Because the landowners’ affidavits did not allege the 

amount each had actually incurred, and because there 

was no other evidence sufficient to support the award of 

attorney fees, we find that the county courts’ awards were 

in error. 5

Following our ruling in Nicholas Family, the Antelope 

County Court held a preliminary hearing to consider the arguments of counsel with regard to how these matters should be 

reheard. The condemnees argued that the district court ordered 

a rehearing on the merits and that the county court should conduct a new evidentiary hearing before ruling on the motions for 

attorney fees.

Relying on Jeffres v. Countryside Homes,

 6 TransCanada 

argued that the county court should exercise its discretion to 

limit the scope of the evidence presented at a new hearing to 

the same content that was in the original affidavits. In Jeffres, 

we said that when a case is remanded for consideration of 

damages, it is within the sound discretion of the trial court to 

decide the issue on evidence contained in the record already 

5 Id. at 287‐88, 908 N.W.2d at 68.

6 Jeffres v. Countryside Homes, 220 Neb. 26, 367 N.W.2d 728 (1985).
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made at the first trial, or to take additional evidence or to try 

the case de novo.

TransCanada then relied on deNourie & Yost Homes v. 

Frost 7 to argue that the county court was not required to hold a 

rehearing because, under the facts limited to the same content 

that was in the original affidavits, it was undisputed that only 

one judgment could be rendered. In deNourie & Yost Homes, 

we discussed an exception to the general rule that a remand on 

the merits resets the parties back to their position before the 

trial. We said that if the facts are not in dispute and only one 

judgment could be rendered, a lower court could enter an order 

without holding a rehearing. 8

After considering the arguments at the preliminary hearing, the county court concluded a rehearing was unnecessary 

because Nicholas Family already established that the type 

of evidence to be presented by the condemnees was insufficient to support awards of attorney fees. The county court 

concluded that the affidavits in this case were very similar to 

those in Nicholas Family, because they were all prepared by 

the same counsel and used nearly identical language save for 

the names of the landowners and the paragraph identifying 

their property. The court noted that, in fact, both TransCanada 

and the condemnees had stipulated in the motion for continuance that the present cases “were closely associated with the 

cases pending on appeal and the appellate court’s ruling may 

impact matters before this court.” The court relied on State 

v. Henk 9 to determine that a new hearing would be limited 

to presentation of the same evidence found in the original 

affidavits. In Henk, we held that when a postconviction 

claim is remanded, the lower court does not have discretion 

to accept evidence on claims different from the claim in the 

remand order.

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

8 See id.

9 State v. Henk, 299 Neb. 586, 909 N.W.2d 634 (2018).
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The condemnees appealed the county court’s decision denying their request for attorney fees to the district court, but failed 

to file a statement of errors. Accordingly, the district court’s 

review was limited to plain error. The district court found that 

the county court had plainly erred by not having an evidentiary 

hearing on attorney fees as directed in the district court’s original mandates. The district court reversed the county court’s 

decision and remanded the matter with instructions to conduct 

an evidentiary hearing. TransCanada now appeals the district 

court’s rulings.

ASSIGNMENTS OF ERROR

TransCanada asserts that the district court erred by holding 

(1) that the county court’s denial of the motion for attorney 

fees was plain error and (2) that the county court was required 

to hold a new evidentiary hearing in which additional evidence 

could be offered.

STANDARD OF REVIEW

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

court presents a question of law on which an appellate court is 

obligated to reach a conclusion independent of the determination reached by the court below. 10

[2] In cases where no statement of errors was filed and the 

district court reviewed for plain error, the higher appellate 

court likewise reviews for plain error only. 11

[3] Plain error exists where there is an error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a 

nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. 12

10 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

11 Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).

12 Id.
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ANALYSIS

As the district court pointed out in the second order, once 

the affidavits were ruled as inadmissible, no evidence remained 

to support a decision from the county court. And because 

TransCanada did not appeal the district court’s orders of remand 

after the first appeal, with the specific mandate for a “rehearing on the merits” that became the law of the case, the county 

court lacked the power to ignore that mandate. We agree with 

the district court’s second orders that it was plain error for 

the county court to fail to hold a new evidentiary hearing in 

accordance with the district court’s mandates.

[4,5] In appellate procedure, a “remand” is an appellate 

court’s order returning a proceeding to the court from which 

the appeal originated for further action in accordance with the 

remanding order. 13 After receiving a mandate, a trial court is 

without power to affect rights and duties outside the scope of 

the remand from an appellate court. 14 We have consistently 

held that when a lower court is given specific instructions on 

remand, it must comply with the specific instructions and has 

no discretion to deviate from the mandate. 15

The duty of the lower court springs from the public interest 

in having a finality to the litigation process and final judgments of the court. In Jurgensen v. Ainscow,

 16 we explained 

this duty in the context of an appeal from a district court order 

that entered judgment from a mandate by the Supreme Court. 

In that case, we said:

“When a particular judgment is directed by the appellate 

court, the lower court is not acting of its own motion, 

but in obedience to the order of its superior. What that 

13 Molina v. Salgado‐Bustamante, 21 Neb. App. 75, 837 N.W.2d 553 (2013).

14 Id.

15 See id. See, also, Henk, supra note 9; Robertson v. Jacobs Cattle Co., 

292 Neb. 195, 874 N.W.2d 1 (2015); VanHorn v. Nebraska State Racing 

Comm., 273 Neb. 737, 732 N.W.2d 651 (2007).

16 Jurgensen v. Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955).
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superior says it shall do, it must do, and that alone. Public 

interests require that an end shall be put to litigation, 

and when a given cause has received the consideration 

of this court, its merits determined, and then remanded 

with specific directions, the court to which such mandate 

is directed has no power to do anything but to obey the 

mandate; otherwise, litigation would never be ended, and 

the supreme tribunal of the state would be shorn of that 

authority over inferior tribunals with which it is invested 

by our fundamental law. . . .” 17

Application of this rule in the present cases places the responsibility on the county court to comply with the district court’s 

mandates, which ordered it to hold a new hearing.

[6,7] TransCanada argues that in each case the order was not 

a specific mandate, but a general remand, and that an exception applies such that no further hearing is necessary because 

the undisputed facts are such that but one judgment could be 

rendered. A reversal of a judgment and the remand of a cause 

for further proceedings not inconsistent with the opinion, without specific direction to the trial court as to what it shall do, 

is a general remand and the parties stand in the same position 

as if the case had never been tried. 18 The exception to this 

general rule placing the parties back where they stood before 

the appeal after such a general remand order, is that if the 

undisputed and admitted facts are such that but one judgment 

could be rendered, the trial court should enter such a judgment, 

notwithstanding the mandate did not specifically direct the trial 

court’s action. 19

Thus, under this exception, in Bohmont v. Moore,

 20 we 

upheld a district court order applying a rule of law concerning negligence to enter judgment without holding a trial after 

17 Id. at 211, 69 N.W.2d at 858.

18 deNourie & Yost Homes, supra note 7.

19 Bohmont v. Moore, 141 Neb. 91, 2 N.W.2d 599 (1942).

20 Id.
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the court received a general remand order. Bohmont, and a 

series of related cases, initially involved a breach of a bailment 

contract action when cash placed inside the plaintiff’s safety 

deposit box at the bank went missing. 21 The plaintiff named the 

bank and two employees as defendants. The trial court directed 

a verdict in favor of the two employees, and the complaint 

against the bank proceeded to trial. At trial, the jury held the 

bank responsible for the loss of the money in the safety deposit 

box. 22 On appeal, we applied tort law and concluded that the 

bank could not be held responsible and remanded. 23 Our mandate stated that “‘the judgment rendered by you be reversed 

. . . and the cause remanded for further proceedings.’” 24

On remand, the plaintiff pointed out that our decision reversing the judgment relied on tort law and that the action was 

brought as a breach of contract; thus, portions of our opinion implied that he should have a new trial. 25 The trial court 

reviewed the plaintiff’s argument and determined that the 

rule from tort law applied to the action because the plaintiff’s 

breach of contract claim also asserted negligence. The trial 

court entered a directed verdict in favor of the bank without 

holding a new trial. The plaintiff again appealed and argued 

that portions of our first opinion implied that the plaintiff 

should have received a new trial. 26 In our opinion from the 

second appeal, we held that nothing in our first remand order 

prevented the trial court from applying the rule of law to the 

undisputed facts and entering judgment in favor of the bank. 

Thus, we affirmed the district court’s decision. 27

21 See Bohmont v. Moore, 138 Neb. 784, 295 N.W. 419 (1940); Bohmont v. 

Moore, 138 Neb. 907, 297 N.W. 559 (1941); and Bohmont, supra note 19.

22 See Bohmont, supra note 19.

23 See id.

24 Id. at 92, 2 N.W.2d at 600.

25 See Bohmont, supra note 19.

26 Id.

27 Id.
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In contrast, we found in deNourie & Yost Homes that this 

exception did not apply to the general remand order in that 

case. 28 A contractor had sued a homeowner and a bank for 

several claims, including breach of contract, fraud, and civil 

conspiracy related to the construction of a home. The trial 

court originally granted summary judgment in favor of the 

homeowner and the bank, and the contractor appealed. In the 

first appeal, we found that summary judgment was inappropriate on the claims of fraud and civil conspiracy and remanded 

for “further proceedings on D & Y’s claims of fraud and civil 

conspiracy.” 29

On remand, the district court allowed the contractor to amend 

his complaint and the court considered a new motion for summary judgment on the amended complaint. 30 The district court 

granted the motion for summary judgment and the contractor 

again appealed, arguing in the second appeal that summary 

judgment on remand was inappropriate because our general 

mandate implied that the contractor was entitled to a trial only 

on the claims that were remanded. In deNourie & Yost Homes, 

we clarified that the general rule did not require a trial, only 

that the parties be put in the same position as if the case had 

never been tried. 31 Under the procedural facts of deNourie & 

Yost Homes, that meant the district court was free to consider 

new pretrial motions and was not obligated to proceed to a 

trial if summary judgment on a new motion was warranted. 32

We also noted in deNourie & Yost Homes the exception to 

the rule, stated above, and then concluded that the exception was not applicable under the facts of the case. 33 Instead, 

28 deNourie & Yost Homes, supra note 7.

29 See deNourie & Yost Homes v. Frost, 289 Neb. 136, 163, 854 N.W.2d 298, 

320 (2014).

30 deNourie & Yost Homes, supra note 7.

31 See id.

32 See id.

33 See id.
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the remand had left open a number of possible actions: the 

court was free to hold a trial, to receive additional evidence, 

or to decide the case without receiving additional evidence. 34

We find no merit to TransCanada’s assertion in each case 

that the district court’s remand order was a general remand and 

that the county court correctly applied the exception articulated in Bohmont and vacated the award of attorney fees and 

dismissed the motions without a hearing. Most fundamentally, 

we find no merit to this argument because the district court’s 

orders were not a general remand. It was not a remand of the 

cause for further proceedings not inconsistent with the opinion, 

without specific direction to the trial court as to what it shall 

do. Rather, the district court remanded the causes for a “rehearing on the merits.” In each case, the opinion issued by the 

district court specified: “The Order on attorney fees and costs 

is reversed. The matter is remanded to the County Court for 

rehearing consistent with the Order herein,” after stating in the 

order that “a rehearing on the merits is appropriate.” (Emphasis 

supplied.) In the context of the rest of the opinion in each case, 

it is clear that the district court’s order was a specific mandate for a new evidentiary hearing on attorney fees. When an 

appellate court’s mandate makes its opinion a part thereof by 

reference, the lower court should examine the opinion with the 

mandate to determine the judgment to be entered or the action 

to be taken thereon. 35

The county court erred in circumventing this specific mandate by concluding that if a rehearing were held, the condemnees would be limited to presenting the same evidence 

that was presented in the original affidavits, and that the facts 

would be undisputed under such evidence that the motion for 

attorney fees would be unsupported. The county court arrived 

at its conclusion after reasoning that “the evidence in these 

Antelope County cases is so substantially similar to those facts 

34 See id.

35 Henk, supra note 9.
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discussed and referred to in the [Nicholas Family] case as to be 

identical.” Because the county court believed that the evidence 

was identical, it also reasoned that the same judgment was 

required in the present cases as in Nicholas Family.

 36

To support this assertion, the county court order cited to 

our decision in Henk, but Henk is inapposite to the cases at 

bar. 37 In Henk, we had previously decided in a memorandum 

opinion on appeal from the denial of an evidentiary hearing 

that the defendant was entitled to an evidentiary hearing on 

a postconviction claim stated in his original postconviction 

application, and we remanded the cause for that specific purpose. After our mandate was spread and before the hearing on 

remand, the district court granted the defendant leave to amend 

his postconviction application to include additional claims for 

postconviction relief. In an appeal by the defendant following 

denial of postconviction relief, we concluded that the district 

court erred in hearing evidence on issues for which the case 

was not remanded. 38

Henk thus precludes a lower court from hearing evidence of 

claims outside the scope of the remand. It reiterates that the 

lower court must comply with a specific mandate and neither 

do less nor more than what the mandate orders. Nothing in 

our holding in Henk indicates that a court should narrow the 

scope of evidence to prevent a party from presenting all evidence relevant to the issue specified to be reheard on remand, 

let alone that the evidence should be limited to the substance 

of that presented in an original hearing. Indeed, in Henk, no 

hearing was held prior to the appeal. Henk illustrates simply 

that the parties cannot use remand as an opportunity to expand 

the issues by amending the pleadings and holding a hearing on 

claims beyond those specified in the mandate remanding for an 

evidentiary hearing.

36 Nicholas Family, supra note 1.

37 Henk, supra note 9.

38 See id.
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Nothing in the Antelope County District Court’s specific 

mandates for a rehearing on the merits of the motions for attorney fees suggested that the evidence presented in the new hearing should be limited to the evidence presented in the first. By 

concluding that the ordered “rehearing” was pointless, because 

the evidence would be so limited and would be insufficient, the 

county court deviated from the district court’s mandates, which 

it lacked the authority to do.

The Bohmont exception could not apply, because the district 

court’s mandates were not a general remand of a cause for 

further proceedings not inconsistent with the opinion, without 

specific direction to the trial court as to what it shall do. 39

Rather, they were specific mandates.

But even if the Bohmont exception could apply, the county 

court erred in concluding the evidence was undisputed, because 

the district court ruled on appeal that the affidavits were inadmissible hearsay. The county court reasoned that “the evidence 

in these Antelope County cases is so substantially similar to 

those facts discussed and referred to in the [Nicholas Family] 

case as to be identical.” But instead, it was true that before the 

appeals to the district court, which ruled the evidence inadmissible and remanded for a rehearing, the evidence was so substantially similar to those facts discussed in Nicholas Family as 

to be identical. 40 Upon the district court’s rulings as an appellate court, however, the affidavits were no longer in evidence. 

Upon remand and before any new evidentiary hearing was 

held, there was no evidence on the record concerning the attorney fees at issue. Without evidence of the work done and the 

amounts of fees incurred by each landowner, the county court 

had no basis for concluding that the facts to support the motion 

were undisputed.

[8] And although Nicholas Family has since indicated that 

the district court’s orders would have been reversed, had 

39 See Bohmont, supra note 19.

40 See Nicholas Family, supra note 1.
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they been appealed, which would have led to the ultimate 

result the county court reached, the district court’s orders 

in these cases were not appealed. Because TransCanada did 

not appeal the district court’s orders remanding the causes 

for rehearing on the merits of the motions for attorney fees, 

those orders became final and the law of the case. 41 Under 

the law-of-the-case doctrine, the holdings of an appellate 

court on questions presented to it in reviewing proceedings 

of the trial court become the law of the case; those holdings 

conclusively settle, for purposes of that litigation, all matters 

ruled upon, either expressly or by necessary implication. 42

The Nicholas Family appeals, while factually similar, are still 

separate cases. They have no effect on the law of the case 

governing the present appeals. Because neither TransCanada 

nor the condemnees appealed the orders of the district court, 

the county court was left with a binding specific remand 

instruction, regardless of whether the district court’s judgments were correct.

We agree with the district court that it was plain error in 

each case for the county court to fail to follow the district 

court’s first mandate that became the law of the case and hold 

an evidentiary hearing on the issue of attorney fees. In cases 

where no statement of errors was filed and the district court 

reviewed for plain error, the higher appellate court likewise 

reviews for plain error only. 43 Plain error exists where there is 

an error, plainly evident from the record, which prejudicially 

affects a substantial right of a litigant and is of such a nature 

that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness 

of the judicial process. 44

41 See Rhoden Auto Center v. Oakley, 2 Neb. App. 84, 507 N.W.2d 51 

(1993).

42 Carpenter v. Cullan, 254 Neb. 925, 581 N.W.2d 72 (1998).

43 Houser, supra note 11.

44 See id.
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[9-13] As stated, a lower court has no authority to disregard 

a mandate of an appellate court. This principle is fundamental 

to our appellate process:

A district court has an unqualified duty to follow the 

mandate issued by an appellate court and must enter 

judgment in conformity with the opinion and judgment 

of the appellate court. A lower court may not modify 

a judgment directed by an appellate court; nor may it 

engraft any provision on it or take any provision from 

it. No judgment or order different from, or in addition 

to, the appellate mandate can have any effect. Because 

a trial court is without power to affect rights and duties 

outside the scope of the remand from an appellate court, 

any order attempting to do so is entered without jurisdiction and is void. 45

Each person who takes part in the judicial process has a substantial right to have the courts’ orders enforced. 46 And it is 

fundamental that the last utterance of an appellate court determines the law of the case, and upon remand for another trial 

subsequent to the appeal, the trial court is bound to follow the 

law as stated by an appellate court. 47 We have long held that 

when a lower court fails to follow the directions of a superior 

court, the parties to such action have a right to use the appellate court to coerce compliance with the mandate. 48 In State v. 

Dickinson,

 49 we said that the actions of the lower court can be 

reviewed, either by error or appellate proceedings, or by mandamus, explaining the importance of enforcing a mandate in 

order to prevent parties from appealing ad infinitum:

The force and effect of the provisions of a mandate ought 

not thus to be overcome and neutralized. If permissible, 

45 Henk, supra note 9, 299 Neb. at 591, 909 N.W.2d at 638-39.

46 See State v. Dickinson, 63 Neb. 869, 89 N.W. 431 (1902).

47 State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).

48 See Dickinson, supra note 46.

49 Id. at 875-76, 89 N.W. at 433.
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it would, in many instances, deprive a party litigant of a 

substantial right earned after tedious and expensive litigation, and require useless and needless expense and time 

in correcting the injustice done him by the prosecution of 

a new proceeding on appeal to establish that which has 

already been adjudicated.

Disregarding an appellate court’s mandate affects a substantial 

right of the litigant the mandate was issued in favor of. When 

the parties declined to appeal the first district court order, the 

condemnees had earned the substantial right, via the judicial 

process, to have a rehearing.

Since there was no appeal in each case of the district court’s 

first mandate, which became the law of the case, the county 

court could not disregard the final mandate of the district court, 

acting as an appellate court. Once the mandate was issued in 

each case, the county court had an unqualified duty to follow 

the mandate and hold a hearing. To leave such an error uncorrected prejudicially affects the condemnees’ substantial right 

to the enforcement of the judgment rendered by the appellate 

court and would result in damage to the integrity, reputation, 

and fairness of the judicial process.

We find no merit to TransCanada’s argument that the stipulated motion for a continuance changed the county court’s 

power and responsibilities in light of the orders on remand. 

Even assuming a stipulation could operate in such a manner, 

the stipulation here did not purport to do so. The stipulation 

was merely a continuance requested by both TransCanada 

and the condemnees because the present cases “were closely 

associated with the cases pending on appeal and the appellate 

court’s ruling may impact matters before this court.”

For purposes of the district court’s order in each case 

remanding the matter for a new hearing, both TransCanada 

and the condemnees are treated as if the motion for attorney 

fees has not been heard and they should have a meaningful 

opportunity to present whatever evidence they have that is 

relevant to the motion for attorney fees. This evidence may 
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be similar to the evidence originally presented or it may be 

new evidence; the county court should consider all relevant 

evidence before making its determination on the motions for 

attorney fees.

CONCLUSION

We conclude that in each case the district court was correct to find plain error and to remand with instructions for 

the county court to hold an evidentiary hearing. We affirm in 

each case the district court’s order remanding the matter to the 

Antelope County Court to conduct an evidentiary hearing on 

the issue of the condemnees’ request for attorney fees and costs 

and to make a final determination on that issue based on the 

evidence submitted.

Affirmed.

Miller-Lerman, J., participating on briefs.