Anderson v. Houston

We also note that because the Department determined none of
Concrete Industries’ claims were valid, neither the Department
nor the district court considered whether Concrete Industries
met its burden of proving that all the items for which it claimed
refunds were assembled into the manufacturing machinery
and equipment that it built. For that reason, this cause will be
remanded to the district court for further proceedings to deter-
mine the amount of Concrete Industries’ refund.
ConClusIon
The sale of manufacturing machinery and equipment includes
the sale of items that are assembled to make manufacturing
machinery and equipment, which is therefore exempt from
sales and use taxes under the Act. The Department, and district
court, erred in concluding otherwise. The decision of the dis-
trict court is reversed, and the cause remanded to the district
court for further proceedings consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., participating on briefs.
AnDerson v. housTon 	907
Cite as 277 neb. 907
david J. andeRson, appellee , v. RobeRt houston,
diRectoR, nebRaska depaRtment of coRRectional
seRvices , appellant.
766 n.W.2d 94
Filed June 5, 2009. 	no. s-08-954.
1. Habeas Corpus: Appeal and Error. on appeal of a habeas corpus petition, an
appellate court reviews the trial court’s factual findings for clear error and its
conclusions of law de novo.
2. Appeal and Error. The construction of a mandate issued by an appellate court
presents a question of law.
3. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
4. Courts: Appeal and Error. Where an appellate court reverses and remands a
cause to the district court for a special purpose, on remand, the district court has
no power or jurisdiction to do anything except to proceed in accordance with
the mandate.
5. ____: ____. A trial court is without power to affect rights and duties outside the
scope of the remand from an appellate court.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

6. Attorney Fees. As a general rule, attorney fees and expenses may be recovered in
a nebraska civil action only where provided for by statute or when a recognized
and accepted uniform course of procedure has been to allow recovery of attor-
ney fees.
Appeal from the District Court for Douglas County: maRlon
a. polk, Judge. Affirmed in part, and in part reversed and
vacated.
Jon Bruning, Attorney General, and ryan C. Gilbride for
appellant.
Michael D. nelson and Cathy r. saathoff, of nelson law,
l.l.C., for appellee.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
stephan, J.
This habeas corpus proceeding is before us for the second
time. David J. Anderson seeks credit for time he spent at lib-
erty after he was mistakenly released from custody before the
completion of his criminal sentences. The district court for
Douglas County initially granted the relief sought by Anderson.
robert houston, the director of the nebraska Department of
Correctional services (the Department), appealed. In Anderson
v. Houston (Anderson I),1 we recognized the equitable doctrine
of credit toward a sentence for time spent at liberty following a
mistaken release from imprisonment, but determined that addi-
tional factual findings were necessary to determine whether
Anderson was entitled to such relief. We therefore reversed,
and remanded to the district court with instructions to make
specific findings. on remand, the court conducted a second evi-
dentiary hearing, made the findings required by our mandate,
and again concluded that Anderson was entitled to the relief he
sought. The district court also awarded Anderson attorney fees
and costs. houston, on behalf of the Department, perfected this
timely appeal. We affirm the determination of the district court
that Anderson is entitled to credit against his sentence for the
1 Anderson v. Houston, 274 neb. 916, 744 n.W.2d 410 (2008).
908 	277 neBrAskA reporTs

time he spent at liberty, but we reverse the award of attorney
fees and costs.
I. BACkGrounD
1. basic facts
We summarize the basic, undisputed facts which are set
forth in more detail in Anderson I. Anderson was convicted
in Douglas County District Court of a Class III felony, theft
by unlawful taking, and a Class IV felony, theft by unlawful
taking. on April 2, 2003, the court sentenced Anderson to 3 to
5 years’ imprisonment for the Class III felony and 20 months’
to 5 years’ imprisonment for the Class IV felony. The court
ordered the sentences to run concurrently.
on 	July 	8, 	2003, 	the 	Department 	mistakenly 	released
Anderson from incarceration. The Department eventually dis-
covered its mistake and, on september 16, filed a motion for
capias and notice of hearing in the Douglas County District
Court. Anderson did not appear at the hearing scheduled for
september 24. That same day, the district court issued an order
directing any law enforcement officers to arrest Anderson if
they located him. The clerk’s office did not issue that warrant
for approximately 14 months.
In the interim, however, Douglas County filed a motion
for declaration of forfeiture of Anderson’s bail bond because
Anderson failed to appear at the september 24, 2003, hear-
ing. This motion, which was filed on March 17, 2004, and an
accompanying letter were mailed to Anderson at an address
specified in the certificate of service. on March 26, the court
entered a default judgment forfeiting Anderson’s bond.
on January 3, 2005, a little more than 9 months after the
bond forfeiture proceeding, police arrested Anderson during a
routine traffic stop. Anderson was then returned to the nebraska
state penitentiary in lancaster County. After accounting for
the time Anderson was absent from prison, the Department
found that his recalculated parole eligibility date was January
9, 2006, and that his new mandatory release date was January
9, 2007. After his reincarceration, Anderson commenced this
habeas corpus proceeding and obtained the order which we
reviewed in Anderson I.
AnDerson v. housTon 	909
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2. A nderson I
In resolving the first appeal, we recognized the equitable
principle that a prisoner can be granted credit against a sen-
tence for time during which the prisoner is erroneously at
liberty. We also recognized that no equitable relief is required
where a prisoner causes his or her own premature release from
prison, thwarts governmental attempts at recapture, or mis-
behaves while at liberty. We held that prisoners who are aware
of an erroneous release from confinement but make no effort
to correct it are not entitled to equitable relief. specifically,
we stated:
To preserve the right to credit for time spent at liberty,
a prisoner who knows his or her release is erroneous
must make a reasonable attempt to notify authorities of
the mistake. Although the prisoner need not “continue to
badger the authorities,” a reasonable attempt may well
include voicing an objection at the time of release or con-
tacting authorities a short time later in order to clarify his
or her status.2
We further held that the prisoner “carries the burden to show
that the complexity in calculating his or her release date, or
some cognitive deficiency, prevented him or her from realizing
the release was premature.”3
We concluded that although the district court had specifi-
cally found that Anderson did not cause his premature release
and there was no evidence before us that Anderson had com-
mitted any crimes while he was erroneously at liberty, there
was an unresolved question as to whether Anderson knew that
his release was premature, yet remained silent. Accordingly, we
remanded to the district court for a determination of “whether
Anderson tried to inform officials of their mistake and, if not,
whether Anderson reasonably did not know his sentence was
set to expire.”4 We further directed the district court to deter-
mine whether Anderson had or should have had notice of the
2 Id. at 931, 744 n.W.2d at 422, quoting United States v. Merritt, 478 F.
supp. 804 (D.D.C. 1979).
3 Id. at 932, 744 n.W.2d at 423.
4 Id.
910 	277 neBrAskA reporTs

september 24, 2003, hearing on the Department’s motion for
capias and/or Douglas County’s motion to declare a forfeiture
of his bond. We also directed the parties to present evidence as
to why the arrest warrant for Anderson was not issued immedi-
ately after it was authorized by the district judge on september
24, and we noted that the district court should determine
whether the delay was “part of an organized and diligent plan
to notify, find, and reapprehend Anderson, or was instead the
product of misconduct—negligent or affirmative—by public
officials.”5 Finally, we directed the district court to determine
the impact of any delay due to misconduct on the equities of
denying Anderson credit for any or all of the 14-month period
between the authorization and issuance of the arrest warrant.
We wrote that “this equitable analysis should be conducted in
a manner consistent with the rationale and policies expressed
in this opinion.”6 Accordingly, our mandate reversed the judg-
ment of the district court and remanded the cause for fur-
ther proceedings.
3. pRoceedings folloWing R emand
(a) evidence
Anderson testified in person at the hearing following remand,
and his deposition was received in evidence. According to the
April 2, 2003, sentencing order, Anderson received credit for 76
days served in custody prior to sentencing. his two nebraska
sentences of 3 to 5 years’ imprisonment and 20 months’ to 5
years’ imprisonment were ordered to run concurrently with
each other and with “incarceration ordered in Iowa.” The
record does not reflect the term of the Iowa sentence. Anderson
denied receiving any documents reflecting his nebraska sen-
tences or Iowa sentence, but he admitted that he was generally
aware that he was to serve 3 to 5 years’ imprisonment on his
nebraska sentences.
Anderson began serving his Iowa sentence sometime in
2002. In June 2003, he completed his Iowa sentence and was
transported from Iowa to the Douglas County Correctional
5 Id. at 933, 744 n.W.2d at 423-24.
6 Id. at 933, 744 n.W.2d at 424.
AnDerson v. housTon 	911
Cite as 277 neb. 907

Center (DCCC). on July 8, 2003, after he had been at DCCC
for approximately 3 weeks, Anderson was informed by a guard
that he would be released if he paid an outstanding $300 fine.
In his deposition, Anderson testified that he thought he still
had nebraska prison time remaining, so he asked an officer
to verify the information. The officer “called downstairs to
booking” and again told Anderson that he would be released
if he paid the fine. Anderson further testified in his deposition
that he informed the captain on the floor at DCCC that he had
been sentenced to 3 to 5 years’ imprisonment. The captain took
Anderson to his office and showed him a computer entry indi-
cating that only the fine was pending. Anderson paid the fine
and was released on July 8.
Anderson’s wife testified that when she learned of his
impending release in July 2003, she was uncertain whether he
had completed his sentence and she called DCCC several times
to request verification. each time, she was told that he would
be released upon payment of the $300 fine. During her last
call, she was told to “quit calling,” so she did.
The correctional officer who processed Anderson’s release
on July 8, 2003, testified that he found no indication in
the records that Anderson informed him that the release was
erroneous. he testified that if a prisoner were to question an
impending release, he would confirm the prisoner’s status
before completing the release. however, he admitted that he
had no independent recollection of Anderson or the circum-
stances of his release.
Anderson testified that he did not receive notice of the
motion for capias and notice of hearing filed on september
16, 2003, and that he did not reside at the address reflected on
the certificate of service. employees of the clerk of the district
court testified that the 14-month delay in issuing the arrest
warrant which was authorized on september 24, 2003, was the
result of “human error.” They acknowledged that Anderson was
not responsible for the delay.
Anderson testified that he did not receive notice of the
motion to declare a forfeiture of his bond filed on March 17,
2004, and that he did not reside at the address reflected on the
certificate of service.
912 	277 neBrAskA reporTs

(b) Findings
Although the district court received over objection evidence
of certain traffic-related offenses committed by Anderson after
his release from incarceration in 2003, it subsequently con-
cluded that it could not consider this evidence under the scope
of our mandate in Anderson I.
The district court found that although Anderson was not
aware of his actual release date, there was sufficient evidence
that he questioned various prison officials in an attempt to
clarify his status when told that he would be released in July
2003. The court also found that Anderson had carried his bur-
den of demonstrating the complexity of calculating his original
release date. The court further found that due to deficiencies
in the notices, there was no evidence that Anderson knew or
should have known about either the september 24, 2003, hear-
ing on the motion for capias or the bond forfeiture hearing in
March 2004. Finally, the district court found that the delay in
the issuance of the arrest warrant was caused by the negligence
of the state and that while such negligence did not amount to
an affirmative act of misconduct, Anderson should not “bear
the brunt of the state’s negligence.”
Based upon these findings, the district court determined that
Anderson was entitled to “day for day credit for the one year,
5 months and 25 days he spent at liberty after he was mistak-
enly released by the . . . Department.” The court also awarded
Anderson attorney fees and costs.
II. AssIGnMenTs oF error
The Department assigns that the district court erred in (1)
“failing to follow the rationale and policies of the nebraska
supreme Court on remand,” (2) imputing errors committed by
Douglas County to the Department and the state of nebraska,
and (3) awarding attorney fees and costs to Anderson.
III. sTAnDArD oF reVIeW
[1] on appeal of a habeas corpus petition, an appellate court
reviews the trial court’s factual findings for clear error and its
conclusions of law de novo.7
7 Anderson I, supra note 1.
AnDerson v. housTon 	913
Cite as 277 neb. 907

[2,3] The construction of a mandate issued by an appel-
late court presents a question of law.8 An appellate court
reviews questions of law independently of the lower court’s
conclusion.9
IV. AnAlYsIs
1. issues and findings on R emand
The Department’s first assignment of error is very broad.
We limit our discussion to the arguments asserted in the
Department’s brief, and thus consider whether the district court
erred either in defining the scope of the remand or in making
its factual findings on remand.10
(a) scope
The Department contends that the district court erred in
concluding that it could not consider traffic-related offenses
committed by Anderson while at liberty under the scope of our
mandate in Anderson I. The Department construes the mandate
as requiring the district court to conduct “a full-blown eviden-
tiary hearing in order to gather sufficient evidence to determine
whether the newly articulated equitable doctrine of sentence
credit for time spent at liberty applies.”11
We do not interpret the scope of the mandate to be so broad.
In Anderson I, we specifically noted that there was no “evi-
dence that Anderson committed any crimes while he was erro-
neously at liberty.”12 We remanded the cause for the trial court
to determine only “whether Anderson tried to inform officials
of their mistake and, if not, whether Anderson reasonably did
not know his sentence was set to expire.”13 While we noted
that the “equitable analysis should be conducted in a manner
8 County of Sarpy v. City of Gretna, 276 neb. 520, 755 n.W.2d 376 (2008);
Pennfield Oil Co. v. Winstrom, 276 neb. 123, 752 n.W.2d 588 (2008).
9 County of Hitchcock v. Barger, 275 neb. 872, 750 n.W.2d 357 (2008).
10 see, Walsh v. State, 276 neb. 1034, 759 n.W.2d 100 (2009); Malchow v.
Doyle, 275 neb. 530, 748 n.W.2d 28 (2008).
11 Brief for appellant at 9.
12 Anderson I, supra note 1, 274 neb. at 928, 744 n.W.2d at 421.
13 Id. at 932, 744 n.W.2d at 423.
914 	277 neBrAskA reporTs

consistent with the rationale and policies expressed in this
opinion,”14 this modifying sentence applied only to the specific
issues upon which the remand was based.
[4,5] Where an appellate court reverses and remands a cause
to the district court for a special purpose, on remand, the dis-
trict court has no power or jurisdiction to do anything except
to proceed in accordance with the mandate.15 A trial court is
without power to affect rights and duties outside the scope of
the remand from an appellate court.16 Because the issues on
remand did not include Anderson’s conduct while at liberty, the
district court properly declined to consider the Department’s
evidence in this regard.
(b) Factual Findings
The Department contends the district court erred in conclud-
ing both that Anderson tried to inform officials of their mistake
and that Anderson legitimately did not know when his sentence
was set to expire. In a habeas corpus action, we review a dis-
trict court’s finding of fact for clear error.17
The district court found that after being informed of his
imminent release, Anderson “questioned various prison offi-
cials in an attempt to clarify the circumstances of his release.”
Anderson had an officer “call down to make sure” that the
release was correct. The court also specifically found that
Anderson told a DCCC captain that “he had been sentenced to
3-5 years,” and also asked this captain to verify that the release
was correct. The court concluded that these attempts to inform
authorities the release was a mistake were reasonable and that
Anderson thus was entitled to equitable relief. Based upon our
review of the record, we conclude that the district court’s fac-
tual finding that Anderson made a reasonable attempt to inform
authorities of their mistake was not clearly erroneous.
14 Id. at 933, 744 n.W.2d at 424.
15 VanHorn v. Nebraska State Racing Comm., 273 neb. 737, 732 n.W.2d 651
(2007); State ex rel. Hilt Truck Line v. Jensen, 218 neb. 591, 357 n.W.2d
455 (1984).
16 Id.
17 Anderson I, supra note 1.
AnDerson v. housTon 	915
Cite as 277 neb. 907

We stated in Anderson I that if the district court deter-
mined that Anderson did not try to inform officials of a pos-
sible mistake regarding his release date, it should determine
whether he reasonably did not know that his release was pre-
mature. Because we affirm the finding that Anderson actually
did inform officials of what he perceived as a possible error
regarding his release date, we need not address the question
of whether he should have been able to precisely calculate his
actual release date. We are satisfied by the record that this was
not a case of “informed silence.” Whether or not Anderson
knew his precise release date, the record establishes that he
questioned the July 2003 release and called the matter to the
attention of corrections officials in order to clarify his status
prior to his release. The district court correctly determined that
the error in releasing Anderson prematurely was attributable
solely to governmental officials, under the equitable principles
established in Anderson I.
2. imputing county eRRoRs to state
In its second assignment of error, the Department argues
that the district court erred in imputing errors committed by
Douglas County to the Department and the state of nebraska
in conducting the equitable analysis. notably, this issue was
not raised when this case was originally presented to this
court.18 nor was it raised to the district court after remand. And
in any event, resolution of this issue is outside the scope of
the remand for the same reason that resolution of the issue of
Anderson’s conduct while at liberty is outside the scope of the
remand. This assignment of error is without merit.
3. attoRney fees and costs
At the hearing on remand, Anderson’s counsel orally moved
for an award of attorney fees and was granted leave to file
an affidavit and supporting evidence on the issue. Counsel
subsequently filed an affidavit and supporting documents,
which showed attorney fees and expenses in the amount of
$19,178.10. The affidavit did not request fees pursuant to any
18 see id.
916 	277 neBrAskA reporTs

particular statute, but instead simply noted that the fees and
expenses were “fair, reasonable, and necessary with regard
to the representation” of Anderson. In its final order, the dis-
trict court, citing neb. rev. stat. § 29-2819 (reissue 1995),
awarded “Anderson’s counsel” $15,342.50 in fees and costs.
The Department argues that the award was erroneous.
[6] section 29-2819 authorizes a court in a habeas cor-
pus action to “make such order as to costs as the case may
require.” As a general rule, attorney fees and expenses may
be recovered in a nebraska civil action only where provided
for by statute or when a recognized and accepted uniform
course of procedure has been to allow recovery of attorney
fees.19 other jurisdictions apply a similar standard regarding
the recovery of fees in habeas corpus actions.20 neb. rev. stat.
§ 29-2824 (reissue 2008) specifies various fees which can be
taxed as costs in a habeas corpus proceeding, but there is no
provision for an award of attorney fees.21 no other statute spe-
cifically provides for the recovery of attorney fees in a habeas
action, nor is there any recognized and accepted uniform
course of procedure that allows the recovery of attorney fees
in a habeas action.22
Anderson argues that he was entitled to counsel at public
expense as a matter of due process, in that he was at risk of
returning to prison if not successful in this action. he relies
upon Carroll v. Moore,23 holding that due process requires that
an indigent defendant in a paternity proceeding be furnished
appointed counsel at public expense, and Allen v. Sheriff of
Lancaster Cty.,24 holding that an indigent party facing incarcer-
ation for noncompliance with a purge plan in a civil contempt
proceeding is entitled to appointed counsel. But the additional
19 Young v. Midwest Fam. Mut. Ins. Co., 276 neb. 206, 753 n.W.2d 778
(2008).
20 see 39A C.J.s. Habeas Corpus § 377 (2003).
21 see, In re Application of Ghowrwal, 207 neb. 831, 301 n.W.2d 349
(1981); State v. Konvalin, 181 neb. 554, 149 n.W.2d 755 (1967).
22 see id.
23 Carroll v. Moore, 228 neb. 561, 423 n.W.2d 757 (1988).
24 Allen v. Sheriff of Lancaster Cty., 245 neb. 149, 511 n.W.2d 125 (1994).
AnDerson v. housTon 	917
Cite as 277 neb. 907

incarceration which Anderson faced if unsuccessful in this
action was no more than that to which he was sentenced in a
criminal proceeding in which he was represented by counsel
and afforded due process. The issue in this civil proceeding is
whether he should be relieved of a portion of that sentence on
equitable grounds stemming from the state’s error in releasing
him prematurely. on these facts, we do not recognize a consti-
tutional basis for taxation of Anderson’s attorney fees as costs,
and we conclude that the court erred in doing so. And, although
§ 29-2819 authorizes an award of costs in a habeas corpus
action, Anderson proceeded in forma pauperis throughout this
action. he therefore did not pay the costs of this action and is
not entitled to recover them.25
V. ConClusIon
For the reasons discussed, we conclude that the district court
did not err in granting Anderson credit against his sentence for
the 1 year, 5 months, and 25 days he spent at liberty as a result
of his erroneous release from incarceration on July 8, 2003.
however, we reverse and vacate the award of attorney fees and
costs, because there is no legal basis upon which Anderson
may recover his attorney fees in this action and he has not paid
any costs. For the same reason, we overrule Anderson’s motion
for attorney fees filed in this court.
affiRmed in paRt, and in paRt
ReveRsed and vacated.
25 see neb. rev. stat. §§ 25-2301 to 25-2309 (reissue 2008).
918 	277 neBrAskA reporTs