18 N.W.3d 802
Neb.2025Background
- Boone River, LLC, acquired a tax certificate and later a tax deed for property owned by siblings Miles, Bettin, and Moninger, but the deed was voided due to noncompliance with Nebraska tax sale statutes.
- After the deed was voided, Boone River and 11T NE, LLC sued Miles, Bettin, and Moninger for unjust enrichment, seeking compensation for paid property taxes and maintenance.
- Miles and Bettin, in their response, made an offer of judgment under Neb. Rev. Stat. § 25-901 for $2,500, which Boone River and 11T did not accept.
- The trial court initially ruled for Boone River and 11T, awarding them over $16,000, but the Nebraska Supreme Court later reversed that judgment as to Miles and Bettin (affirmed as to Moninger) on preclusion grounds.
- After remand, Miles and Bettin moved for costs (including attorney’s fees) under § 25-901, arguing that Boone River and 11T obtained no judgment and thus owed costs from the time of the rejected offer.
- The district court found it lacked jurisdiction to hear the motion for costs, reasoning the issue was not within the appellate mandate.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Timing for seeking costs under § 25-901 | Entitled to seek costs post-judgment per statute | Motion for costs was outside mandate; jurisdiction lacking | Proper to seek costs after judgment based on mandate; district court had jurisdiction. |
| Applicability of § 25-901 post-remand | Offer of judgment remains effective through appeal/remand | Offer’s effect expired, did not extend post-remand | Offer of judgment under § 25-901 remains effective through remand. |
| Scope of "costs" under § 25-901 | Includes attorney fees and expenses | "Costs" excludes attorney fees | Costs do not include attorney fees under § 25-901. |
| Effect of prior motion/counterclaim timing | Costs claim timely as entitlement only arose after appellate judgment | Could have or should have raised the issue earlier | Claim for costs timely since entitlement did not arise until post-mandate judgment. |
Key Cases Cited
- Klingelhoefer v. Monif, 286 Neb. 675 (addresses jurisdictional limitations on post-mandate motions for costs and attorney fees)
- Wetovick v. County of Nance, 279 Neb. 773 (defines that “costs” in statutes generally do not include attorney fees)
- In re Estate of Lakin, 310 Neb. 271 (permits appellate discussion of issues likely to recur on remand)
- Murray v. Stine, 291 Neb. 125 (certain statutes may treat attorney fees as recoverable costs when specifically stated)