Post-Remand Application of Neb. Rev. Stat. § 25-901 Cost-Shifting Rule

Introduction

This case arises from a dispute over property tax sales and subsequent unjust enrichment claims among Boone River, LLC and 11T NE, LLC (“appellees”) on one side, and Nancy J. Miles and Cheryl L. Bettin (“appellants”) on the other, with Robert R. Moninger as a co-party. After a successful tax-deed challenge by Miles, Bettin, and Moninger, Boone River and 11T sued for reimbursement of taxes and maintenance costs. During that litigation, Miles and Bettin served an offer of judgment under Nebraska’s offer-of-judgment statute, Neb. Rev. Stat. § 25-901, to confess judgment for $2,500. The district court awarded Boone River and 11T more than $2,500; on appeal, the Nebraska Supreme Court reversed as to Miles and Bettin, affirmed as to Moninger, and remanded for judgment in their favor. On remand, the district court declined to entertain the cost-shifting motion under § 25-901, deeming it outside the scope of the mandate. The Supreme Court granted further review.

Summary of the Judgment

On April 11, 2025, the Nebraska Supreme Court reversed the district court’s refusal to consider appellant’s request for costs under § 25-901 after remand. It held:

The plaintiffs’ (Boone River and 11T) obligation to pay costs under § 25-901 arises once they “fail to obtain judgment for more than was offered” by defendants, even if the final judgment awards them zero dollars.
An unaccepted offer of judgment under § 25-901 remains effective throughout the life of the case, including on appeal and remand.
The district court erred in dismissing the post-mandate motion for costs as “outside the mandate.”
“Cost” under § 25-901 does not include attorney fees.

The Supreme Court reversed and remanded with instructions to calculate and award the proper taxable costs to which Miles and Bettin are entitled.

Analysis

Precedents Cited

The Court relied on several authorities to frame its legal analysis:

Klingelhoefer v. Monif (286 Neb. 675, 839 N.W.2d 247 (2013)): Held that a district court may not grant relief outside an appellate mandate when the relief was never timely requested.
Delta Airlines, Inc. v. August (450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981)): Interpreting Fed. R. Civ. P. 68, established that cost-shifting does not apply when a plaintiff takes nothing on judgment.
Pouillon v. Little (326 F.3d 713 (6th Cir. 2003)): Held that an unrevoked Rule 68 offer remains effective through remand.
Wetovick v. County of Nance (279 Neb. 773, 782 N.W.2d 298 (2010)): Confirmed “costs” do not generally include attorney fees unless statute explicitly so provides.
Murray v. Stine (291 Neb. 125, 864 N.W.2d 386 (2015)): Contrasted a statute that expressly authorizes attorney fees as part of “court costs.”
In re Masek Family Trust (ante p. 268, 15 N.W.3d 379 (2025)) and In re Estate of Koetter (312 Neb. 549, 980 N.W.2d 376 (2022)): Recited that appellate mandate construction and jurisdiction are questions of law subject to independent review.

Legal Reasoning

The Court’s decision rests on three key interpretative points:

Plain Language of § 25-901: The final clause—“If the plaintiff fails to obtain judgment for more than was offered by the defendant, the plaintiff shall pay the defendant’s cost”—triggers cost liability when the plaintiff’s award is equal to or less than the offer, including zero. Unlike Rule 68, Nebraska’s statute was enacted in 1867 and contains no express exclusion of “naught” judgments.
Continuing Effect of the Offer: An unaccepted § 25-901 offer survives through appeals and remand. Borrowing logic from federal post-remand practice under Rule 68, the Court held the same principle applies in Nebraska.
Scope of the Mandate: Because the remand judgment itself created the cost-shifting obligation, the district court had jurisdiction to consider the pending motion for costs. Klingelhoefer was distinguished: here the relief was properly requested in the counterclaim; the motion followed directly from the remand judgment.

Impact

This decision clarifies several critical points for Nebraska litigants and courts:

Offers of judgment under § 25-901 remain effective post-appeal and may be enforced upon remand.
Parties may renew or press for cost awards under § 25-901 after mandate if the final judgment triggers liability.
District courts should entertain properly preserved cost-shifting motions post-remand, avoiding jurisdictional dismissals.
“Cost” recoverable under § 25-901 excludes attorney fees unless the Legislature amends the statute to say otherwise.

Complex Concepts Simplified

Appellate Mandate: A directive from an appellate court telling the lower court to carry out the reversal, affirmance, or modification ordered on appeal. Relief not specified in the mandate cannot be granted.

Cost vs. Attorney Fees: “Costs” typically include filing fees, transcript costs, and other court expenses. “Attorney fees” are compensation for legal representation and are only awarded if a statute expressly provides for them.

Rule 68 Comparison: Federal Rule 68 is a similar cost-shifting device in federal practice. Nebraska’s § 25-901 differs in wording and scope, resulting in a broader application when a plaintiff obtains zero or less than the defendant’s offer.

Conclusion

The Supreme Court reversed the district court’s dismissal of the post-mandate request and remanded with instructions to calculate and award taxable costs under Neb. Rev. Stat. § 25-901. Key takeaways:

An unaccepted § 25-901 offer remains alive through appeal and remand.
A plaintiff’s liability for costs includes situations where the final judgment awards less than or nothing on the claims.
“Cost” under § 25-901 does not encompass attorney fees absent explicit legislative authorization.

This ruling ensures that offer-of-judgment provisions in Nebraska jurisprudence are coherent, predictable, and enforceable throughout the life of a case.