Nebraska’s §25-901 Offer of Judgment: Cost-Shifting on Remand and Exclusion of Attorney Fees

Introduction

This commentary examines the Supreme Court of Nebraska’s decision in Boone River, LLC v. Miles, 318 Neb. 760 (2025), which clarifies the interplay between Nebraska’s offer of judgment statute (Neb. Rev. Stat. § 25-901) and the appellate mandate/remand process. The dispute arises from a tax-deed and quiet-title controversy among Boone River, LLC and 11T NE, LLC (collectively “11T”), on the one hand, and siblings Nancy J. Miles, Cheryl L. Bettin, and Robert R. Moninger on the other. After an initial quiet-title judgment voided 11T’s tax deed and a subsequent unjust‐enrichment bench trial awarded 11T approximately $16,918, Miles and Bettin invoked § 25-901 by offering to confess judgment for $2,500 (which 11T refused). On appeal, Nebraska’s high court reversed the unjust‐enrichment judgment as to Miles and Bettin, affirmed as to Moninger, and issued a mandate directing the district court to enter judgment “in conformity” with the opinion. The district court complied but declined to entertain Miles and Bettin’s post-mandate request for cost shifting under § 25-901, holding it lacked jurisdiction under the mandate’s scope. The Supreme Court granted review to decide whether § 25-901’s cost-shifting obligation arises on remand (even when the net judgment is zero) and whether “costs” under that statute include attorney fees.

Summary of the Judgment

On independent review of the statutory language and relevant precedents, the Nebraska Supreme Court held:

Section 25-901’s cost-shifting provision applies whenever a plaintiff “fails to obtain judgment for more than was offered,” including when judgment is entered against the plaintiff and in favor of the defendant (a zero-dollar judgment).
An unaccepted offer of judgment under § 25-901 remains effective for cost-shifting throughout the life of the case, including after appeal and remand under a mandate.
“Cost” under § 25-901 does not include attorney fees; it encompasses taxable court costs and other statutory costs but excludes counsel’s hourly charges and related expenses.
The district court erred in concluding it lacked jurisdiction to consider Miles and Bettin’s preexisting § 25-901 request after remand. The matter is reversed and remanded with directions to calculate and award the applicable costs under § 25-901.

Analysis

Precedents Cited

Federal Rule 68 and Delta Airlines, Inc. v. August (450 U.S. 346 (1981)): Under Rule 68, cost-shifting does not apply when the plaintiff takes nothing (zero). The Nebraska Court distinguished § 25-901’s broader text from Rule 68’s more limited scope.
Pouillon v. Little (6th Cir. 2003): Held that an unaccepted Rule 68 offer remains effective after remand. Nebraska’s Court analogized this interpretation to § 25-901’s continuous cost-shifting effect.
Klingelhoefer v. Monif (286 Neb. 675 (2013)): Concluded that a district court cannot entertain a new request for relief outside the appellate mandate. The Supreme Court here distinguished Klingelhoefer because Miles and Bettin’s § 25-901 relief had become ripe only after the remand judgment.
Wetovick v. County of Nance (279 Neb. 773 (2010)): Established that “costs” in Nebraska statutes do not ordinarily include attorney fees.
Murray v. Stine (291 Neb. 125 (2015)): Confirmed that attorney fees are only taxable as costs where a statute expressly provides for them.
In re Estate of McCormick (317 Neb. 960 (2024)), In re Masek Family Trust (ante p. 268 (2025)), and In re Estate of Koetter (312 Neb. 549 (2022)): Reinforce that statutory interpretation, mandate construction, and jurisdictional questions are reviewed de novo.
In re Estate of Lakin (310 Neb. 271 (2021)): Permits an appellate court to address collateral issues likely to recur on remand.

Legal Reasoning

The Court began with the plain text of § 25-901, focusing on its final sentence: “If the plaintiff fails to obtain judgment for more than was offered by the defendant, the plaintiff shall pay the defendant’s cost from the time of the offer.”

1. Zero Judgment Included – The statute does not condition cost shifting on a positive monetary recovery; instead, it triggers whenever the plaintiff’s net recovery is not greater than the offer. Thus, a zero-dollar outcome (judgment against the plaintiff) falls squarely within its terms.

2. Continuing Effect of the Offer – Drawing on federal Rule 68 jurisprudence (e.g., Pouillon), the Court held that a single § 25-901 offer remains alive for cost-shifting until final disposition, including any appellate remand. The Court rejected the notion that remand extinguishes an earlier statutory offer.

3. Mandate and Jurisdiction – The district court’s view that the appellate mandate confined it to “ministerially enter” judgment misconstrued the scope. Because the cost-shifting right under § 25-901 only became ripe once the remand judgment was entered, entertaining the cost motion lay within the district court’s post-remand jurisdiction.

4. Attorney Fees vs. Costs – Applying Wetovick and Murray, the Court concluded that Nebraska’s legislature deliberately used “cost” without reference to attorney fees. Where statutes explicitly authorize fees (e.g., Neb. Rev. Stat. § 25-824), they are taxable; absent such language in § 25-901, attorney fees remain non-recoverable.

Impact

This decision has important consequences for Nebraska litigation strategy and cost management:

Strategic Offers – Defendants can employ pre-trial § 25-901 offers to cap plaintiff recoveries and potentially shift all allowable costs if the plaintiff fails to exceed the offer, even after appeal.
Appeal Dynamics – Litigants may rest assured that a § 25-901 offer survives through remand proceedings, incentivizing earlier settlement and discouraging prolonged litigation.
Legislative Clarification – Lawmakers may consider amending § 25-901 if they intend to include or exclude specific cost categories (e.g., expert fees, clerk fees), but attorney fees remain off-limits absent express text.
Judicial Guidance – Trial courts will now exercise jurisdiction on remand to calculate post-offer costs, ensuring uniform application of § 25-901 across Nebraska’s trial benches.

Complex Concepts Simplified

Offer of Judgment (§ 25-901) – A written proposal by a defendant to let the plaintiff take a specified judgment. If the plaintiff refuses and later recovers no more than that offer, the plaintiff pays the defendant’s statutory costs from the offer date onward.
Mandate and Remand – When an appellate court hands down a decision, it issues a mandate directing the trial court to implement the reversal or modification. “Remand” is the process of returning the case to the trial court under that mandate.
Cost-Shifting – A mechanism in which the losing or partially losing party must pay the prevailing party’s statutory costs, designed to encourage settlement.
Rule 68 – The federal counterpart to Nebraska’s § 25-901. Although similar in purpose, federal cases have limited Rule 68’s applicability to scenarios where the plaintiff recovers a lesser positive amount, excluding zero-award judgments.
Attorney Fees vs. Costs – “Costs” typically cover filing fees, service fees, transcript costs, and other out-of-pocket expenses allowed by statute or rule. “Attorney fees” are counsel’s hourly or flat rates, which are only recoverable when a statute or contract explicitly authorizes them.

Conclusion

Boone River, LLC v. Miles clarifies that under Neb. Rev. Stat. § 25-901:

A plaintiff’s failure to obtain a judgment exceeding an unaccepted offer—including a zero-dollar outcome—triggers a statutory obligation to reimburse the defendant’s taxable costs from the date of the offer.
Such an offer remains in force through the appellate process and on remand, and trial courts retain jurisdiction post-mandate to determine and award those costs.
The term “cost” in § 25-901 excludes attorney fees, limiting recovery to the items authorized by Nebraska’s cost statutes and court rules.

This ruling strengthens the role of early settlement offers in Nebraska practice, ensures consistency in cost awards on remand, and delineates the boundary between taxable costs and nonrecoverable attorney fees in the state’s statutory scheme.