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KLINGELHOEFER v. MONIF 675

Cite as 286 Neb. 675

the cause, however, for the court to determine whether to 

assess all or any part of the incorrectly assessed fess against 

Brydon’s estate.

 Affired in par, and in part

and remanded for further proce

on the issue of fee

David J. Klingelhoefer, as Successor Trust

Constance K. Klingelhoefer Revocabl

as manager of Constance Klingelhoe

appellee, v. Kerry L. Monif et al., appell

___ N.W.2d ___

Filed October 11, 2013. No. S-12-1117.

1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of 

law, upon which an appellate court reaches a conclusion independent of the 

trial court.

2. 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.

3. 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.

4. ____: ____: ____. The judgment of the appellate court is a final judgment in the 

cause, and the entry thereof in the lower court is a purely ministerial act.

5. Judgments. After a mandate is issued, no modification of the judgment so 

directed can be made, nor may any provision be engrafted on or taken from it.

6. ____. A mandate is conclusive on the parties, and no judgment or order different 

from, or in addition to, the mandate can have any effect.

7. Attorney Fees: Appeal and Error. An appellate court may award attorney fees 

on appeal regardless of whether they were requested or ordered in the trial court.

8. Attorney Fees: Words and Phrases. In the context of Neb. Rev. Stat. § 25-824 

(Reissue 2008), a frivolous action is one in which a litigant asserts a legal position so wholly without merit as to be ridiculous.

9. Actions. Any doubt whether a legal position is frivolous or taken in bad faith 

should be resolved for the party whose legal position is in question.

Appeal from the District Court for Buffalo County: John 

Icenogle, Judge. Vacated and dismisse

David J. Lanphier, of Broom, Clarkson, Lanphier & 

Yamamoto, for appellants.
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676 286 NEBRASKA REPORTS

Daniel E. Klaus, of Rembolt Ludtke, L.L.P., for appellee.

Wright, Connolly, Stephan, McCormack, and Mil

McCormack,

NATURE OF CASE

David J. Klingelhoefer, as successor trustee of the Constance 

K. Klingelhoefer Revocable Trust (Trust) and as manager of 

Constance Klingelhoefer, L.L.C. (LLC), filed a declaratory 

action with the district court. Constance K. Klingelhoefer’s 

other children, as beneficiaries of the Trust and members of 

the LLC (the beneficiaries), filed counterclaims for a declaratory judgment and for an accounting. The district court entered 

judgment for David on the declaratory judgment actions and 

held a trial for an accounting. After trial, the district court 

generally found in favor of David. The beneficiaries appealed, 

and the Nebraska Court of Appeals affirmed in an unpublished 

memorandum opinion.1 After the Court of Appeals issued its 

mandate, David moved for attorney fees and postjudgment 

interest and the district court entered an order in his favor. The 

beneficiaries now appeal.

Backgro

In the first appeal, the Court of Appeals set out the following facts, which have been relied upon and summarized for 

purposes of this appeal: Constance was the mother of 11 children. Before her death in 2006, Constance executed a number 

of documents to effect an estate. To reduce taxes, she created 

the LLC and transferred her real estate to the LLC. She gave 

interests in the LLC to each of her 11 children and kept an 

interest for herself. To avoid probate, Constance created a trust. 

Constance also created a will, directing that upon her death, 

any remaining real or personal property in her possession be 

transferred to the Trust.

After her death, her son David, as trustee of the Trust 

and as manager of the LLC, brought an action seeking a 

1 Klingelhoefer v. Monif, No. A-11-056, 2012 WL 148730 (Neb. App. Jan. 

17, 2012) (selected for posting to court Web site).
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declaratory judgment which would allow the sale of the real 

estate pursuant to “Article Fourth” of the Trust. The beneficiaries brought counterclaims for a finding that provisions 

of the LLC should govern disposition of the real property 

and requested an accounting. Both parties moved for summary judgment on the question of whether the Trust document or the LLC document should govern disposition of the 

real property.

The district court found that the only construction of the 

Trust and LLC documents that would effectuate Constance’s 

intent would be for the terms of the Trust to control the disposition. The case proceeded to trial on the request for an 

accounting. The court found that David did not engage in selfdealing and that he did not breach his fiduciary duties. In particular, the court found that David did not breach his fiduciary 

duty by charging the Trust and LLC for the attorney fees he 

incurred in pursuing the declaratory judgment and defending 

the accounting claims. The beneficiaries appealed and posted 

a supersedeas bond.

In an unpublished opinion, the Court of Appeals affirmed. 

On April 4, 2012, the Court of Appeals issued its mandate. 

The mandate stated that “the judgment which you [the district 

court] rendered has been affirmed by the Court of Appeals.” 

Furthermore, the mandate ordered that the district court “shall, 

without delay, proceed to enter judgment in conformity with 

the judgment and opinion of this court.”

On April 9, 2012, David filed with the district court a 

motion for an award of costs, expenses, and attorney fees 

against the beneficiaries under Neb. Rev. Stat. §§ 25-1705 

et seq. (Reissue 2008 & Cum. Supp. 2012) and 25-1914 to 

25-1918 and 30-3893 (Reissue 2008). The motion further 

requested payment out of the supersedeas bond and, if that was 

inadequate, then for judgment against the beneficiaries.

A hearing was held on the motion on July 6, 2012. David 

offered into evidence the affidavit of his attorney, which 

addressed the costs and attorney fees incurred during the lawsuit, and the affidavit of a certified public accountant, which 

addressed the damages suffered by the extended delay in the 

sale of the real estate. In response, the beneficiaries offered 
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678 286 NEBRASKA REPORTS

the affidavit of a certified public accountant in opposition to 

the accountant’s affidavit offered by David.

On October 29, 2012, the district court issued its order. 

The district court found that the request being made to 

recover attorney fees, expenses, and interest was proper under 

§ 30-3893. It also found that the sale of property was in fact 

delayed because of the continuing litigation of the beneficiaries. The court awarded David postjudgment interest in the 

amount of $80,531.35, costs in the amount of $818.40, and 

reasonable attorney fees in the amount of $164,728.86. The 

beneficiaries now appeal.

ASSIGN

The beneficiaries have assigned, restated and summarized, 

that the district court erred in (1) awarding David costs, 

expenses, and attorney fees for the trial and appeal after the 

mandate from the Court of Appeals; (2) granting interest, costs, 

expenses, and attorney fees at a hearing on the supersedeas 

bond which exceeds the terms of the coverage under applicable 

law; and (3) not granting the beneficiaries’ request for attorney 

fees pursuant to Neb. Rev. Stat. § 25-824 (Reissue 2008) for 

David’s filing of the postjudgment motion for attorney fees and 

costs, which they contend was frivolous.

STANDARD OF REVIEW

[1] The question of jurisdiction is a question of law, upon 

which an appellate court reaches a conclusion independent of 

the trial court.2

ANALYSIS

The beneficiaries argue that the district court erred when it 

awarded David costs, expenses, and attorney fees for the trial 

and appeal because the request was made after the Court of 

Appeals had filed its mandate. We agree.

[2-6] We have stated that after receiving a mandate, a trial 

court is without power to affect rights and duties outside the 

scope of the remand from an appellate court.3 A district court 

2 Gabel v. Polk Cty. Bd. of Comrs., 269 Neb. 714, 695 N.W.2d 433 (2005).

3 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
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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.4 The judgment of the appellate court is a final judgment in the cause, 

and the entry thereof in the lower court is a purely ministerial act.5

 No modification of the judgment so directed can be 

made, nor may any provision be engrafted on or taken from 

it.6 That order is conclusive on the parties, and no judgment or 

order different from, or in addition to, the mandate can have 

any effect. 7

Here, the issue is whether the award of costs, expenses, 

and attorney fees was outside the scope of the mandate. 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.8 The mandate given by the Court 

of Appeals is clear; the district court’s judgment had been 

affirmed. The district court was to enter judgment in conformity with the Court of Appeals’ judgment and opinion, without 

delay. The Court of Appeals did not award the costs, postjudgment interest, and attorney fees requested by David. Therefore, 

David’s motion was attempting to obtain further relief, which 

he had not previously requested from the district court or the 

Court of Appeals. As we stated in VanHorn v. Nebraska State 

Racing Comm.,

9

 when a request for damages, costs, and fees 

is outside the mandate of the appellate court, the district court 

lacks jurisdiction to rule on such a motion.

The district court was, therefore, without jurisdiction to 

consider the motion and should have dismissed it without 

4 See Custom Fabricators v. Lenarduzzi, 259 Neb. 453, 610 N.W.2d 391 

(2000).

5 See K N Energy, Inc. v. Cities of Broken Bow et al., 248 Neb. 112, 532 

N.W.2d 32 (1995).

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

(2007).

7 Id.

8 Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 651 (2001).

9 VanHorn, supra note 6.
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680 286 NEBRASKA REPORTS

prejudice.10 If David had a further cause of action arising out of 

the Court of Appeals’ decision, he needed to file a new lawsuit 

and present evidence in that case.11 He may not, however, simply extend his request for relief beyond that which was initially 

determined by the Court of Appeals.12 Therefore, we vacate the 

October 29, 2012, order granting David costs, expenses, and 

attorney fees.

[7] Finally, we must also address whether the motion filed 

by David was frivolous. On appeal, the beneficiaries moved 

this court for an award of attorney fees pursuant to § 25-824, 

claiming that David’s motion for costs, expenses, and attorney 

fees was wholly without merit. Although the beneficiaries 

did not seek attorney fees at the hearing before the district 

court, an appellate court may award attorney fees on appeal 

regardless of whether they were requested or ordered in the 

trial court.13

[8,9] Section 25-824 provides generally that a court can 

award reasonable attorney fees and court costs against any 

attorney or party who has brought or defended a civil action 

that alleges a claim or defense that a court determines is frivolous or made in bad faith.14 In the context of § 25-824, a frivolous action is one in which a litigant asserts a legal position so 

wholly without merit as to be ridiculous.15 Any doubt whether 

a legal position is frivolous or taken in bad faith should be 

resolved for the party whose legal position is in question.16

Sanctions should not be imposed except in the clearest cases.17

10 See State v. Shelly, 279 Neb. 728, 782 N.W.2d 12 (2010).

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

12 Id.

13 See Foiles v. Midwest Street Rod Assn. of Omaha, 254 Neb. 552, 578 

N.W.2d 418 (1998).

14 Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 

N.W.2d 252 (2010).

15 See Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 

469 (2011).

16 Id.

17 First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 

(1990).
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Here, David’s motion was without merit because the district 

court lacked jurisdiction. But, the fact that the district court 

granted David’s motion indicates that such a legal position 

should not be deemed frivolous. We conclude that the motion 

was not brought in bad faith. We decline to award attorney fees 

on appeal to the beneficiaries on the ground that the motion 

was frivolous.

CONCLUSION

For the reasons discussed, we vacate the district court’s 

order granting David costs, expenses, and attorney fees and 

deny the beneficiaries’ request for attorney fees pursuant to 

§ 25-824.

Vacated and dismi

Heavican, C.J., and Cassel, J., not participat