County of Sarpy v. City of Gretna

the C ouNty of SArpy , N ebrASkA, AppellANt , v .
the C ity of gretNA, N ebrASkA, Appellee .
755 N.W.2d 376
Filed September 5, 2008. 	No. S-07-498.
1. Appeal and Error. The construction of a mandate issued by an appellate court
presents a question of law.
2. Judgments: Appeal and Error. On questions of law, an appellate court is obli-
gated to reach a conclusion independent of the determination reached by the
court below.
3. 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 appel-
late court.
4. ____: ____. When an appellate court’s mandate makes its opinion a part thereof
by reference, the lower court should examine the opinion with the mandate to
determine the judgment to be entered or the action to be taken thereon.
5. Actions: Appeal and Error. The law-of-the-case doctrine reflects the principle
that an issue that has been litigated and decided in one stage of a case should not
be relitigated at a later stage.
6. ____: ____. The law-of-the-case doctrine promotes judicial efficiency and pro-
tects the parties’ settled expectations by preventing parties from relitigating
settled issues within a single action.
7. Appeal and Error. The law-of-the-case doctrine applies with greatest force when
an appellate court remands a case to an inferior tribunal.
8. Waiver: Appeal and Error. Under the mandate branch of the law-of-the-case
doctrine, a decision made at a previous stage of litigation, which could have been
challenged in the ensuing appeal but was not, becomes the law of the case; the
parties are deemed to have waived the right to challenge that decision.
Appeal from the District Court for Sarpy County: mAx
kelCh, Judge. Affirmed.
Lee K. Polikov, Sarpy County Attorney, and Michael A.
Smith for appellant.
John K. Green for appellee.
heAviCAN, 	C.J., 	wright, 	C oNNolly, 	gerrArd, 	S tephAN,
mCC ormACk, and miller -lermAN, JJ.
miller -lermAN, J.
NATUre OF CASe
The City of Gretna sits entirely within the borders of Sarpy
County, Nebraska. This challenge by Sarpy County, related to
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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annexation ordinances enacted by Gretna, is before us for the
third time. In County of Sarpy v. City of Gretna, 267 Neb. 943,
678 N.W.2d 740 (2004) (Sarpy I), we concluded that Sarpy
County had standing to challenge the annexations. We reversed
the judgment of the district court for Sarpy County which had
dismissed the action, and we remanded the cause for further
proceedings. On remand, the district court found that the
annexation ordinances were valid and further found that, in any
event, Sarpy County had not produced evidence of damages.
Sarpy County appealed and claimed as its sole assignment
of error that the district court had erred in concluding that
Gretna’s annexation ordinances were valid. On appeal, we con-
cluded that the annexation ordinances were invalid because the
lands Gretna sought to annex were not contiguous or adjacent
to the corporate limits of Gretna. See County of Sarpy v. City
of Gretna, 273 Neb. 92, 727 N.W.2d 690 (2007) (Sarpy II).
We reversed the judgment of the district court and remanded
the cause with directions to enter judgment consistent with
our opinion.
On remand, Sarpy County filed a motion for accounting,
seeking an order for an accounting for fees collected by Gretna.
An accounting had been requested by Sarpy County as relief in
its amended petition in Sarpy I. On April 4, 2007, the district
court entered judgment on our mandate without addressing
Sarpy County’s motion for accounting.
Sarpy County appeals and asserts that the district court erred
in failing to address its motion for accounting. We conclude
that issues with regard to an accounting were waived by Sarpy
County when it did not raise those issues on appeal in Sarpy II;
therefore, such issues were not part of our mandate and the
district court did not err when it did not address such issues on
remand. We affirm.
STATeMeNT OF FACTS
The facts of the underlying dispute are set forth more fully
in Sarpy I and Sarpy II. In sum, the Gretna City Council
adopted ordinances by which it sought to annex certain lands
in Sarpy County. The lands Gretna sought to annex included
strips of certain highways. On June 20, 2002, Sarpy County
COUNTY OF SArPY v. CITY OF GreTNA 	521
Cite as 276 Neb. 520

filed a petition in the district court challenging the annexations
on various bases. Sarpy County filed an amended petition on
August 12 in which it prayed for relief including, inter alia, an
order for an accounting of sums collected by Gretna since July
3, 2001, for rezoning applications, building permit fees, and
other zoning fees for the areas purportedly annexed pursuant to
the ordinances. Gretna filed a demurrer to the amended petition
asserting various bases. The district court sustained the demur-
rer on the basis that Sarpy County lacked standing to bring
the action. Sarpy County appealed. We concluded that Sarpy
County had standing to challenge the annexations. We reversed
the judgment of the district court and remanded the cause for
further proceedings. See Sarpy I.
On remand, the district court conducted a bench trial.
evidence was adduced regarding the annexations and the
nature of the land encompassed thereby. A planning and zoning
administrator for Sarpy County also testified as to various fees
Sarpy County would have collected but for the annexations.
In its judgment entered May 23, 2005, the district court found
that the ordinances were valid and further stated, “even though
the ruling was in favor of the Defendant [Gretna], the Plaintiff
[Sarpy County] did not produce evidence of damages of any
specific losses.” The district court entered judgment against
Sarpy County and dismissed the action. Sarpy County appealed.
In Sarpy II, Sarpy County’s sole assignment of error on appeal
was that the district court erred in entering judgment in favor of
Gretna “where the undisputed evidence clearly showed that the
statutory requirements of adjacency and contiguity of lands to
be annexed to a second-class city were not met.” We stated that
“[t]he single issue presented in this appeal is whether the two
parcels of land which Gretna sought to annex were contiguous
or adjacent to its existing corporate limits.” 273 Neb. at 95, 727
N.W.2d at 694. We concluded that the annexations were invalid
and void because they did not meet the contiguity or adjacency
requirement of Neb. rev. Stat. § 17-405.01 (reissue 1997).
We therefore reversed the judgment of the district court and
remanded the cause “with directions to enter judgment consist-
ent with this opinion.” 273 Neb. at 98, 727 N.W.2d at 696.
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Our decision in Sarpy II was filed February 23, 2007. Our
mandate was filed in the district court on April 2. That same
day, Sarpy County filed a motion for accounting. In its motion,
Sarpy County noted that its amended petition asked for an
accounting as relief sought and asserted that the district court’s
prior order did not order an accounting because the court did
not find Gretna’s ordinances invalid and did not reach the issue
whether Sarpy County was entitled to an accounting. Sarpy
County asserted that an accounting was appropriate given the
evidence adduced in the case and the mandate filed therein.
Sarpy County requested that the court order an accounting. On
April 4, the district court entered a “Judgment on Mandate” in
which it entered judgment pursuant to this court’s opinion in
Sarpy II which related solely to the propriety of the annexa-
tions. The district court did not address Sarpy County’s motion
for accounting in the April 4 judgment or elsewhere.
Sarpy County appeals the April 4, 2007, order.
ASSIGNMeNT OF errOr
Sarpy County asserts that the district court erred when it
failed to fully address Sarpy County’s motion for account-
ing and related issues prior to issuance of the final judgment
on mandate.
STANDArDS OF reVIeW
[1,2] The construction of a mandate issued by an appellate
court presents a question of law. Pennfield Oil Co. v. Winstrom,
ante p. 123, 752 N.W.2d 588 (2008). On questions of law, we
are obligated to reach a conclusion independent of the determi-
nation reached by the court below. Id.
ANALYSIS
Sarpy County contends that the district court should have
considered its motion for accounting on remand pursuant to
our mandate in Sarpy II. We conclude that the district court
ruled against Sarpy County on the accounting issue in the order
appealed from in Sarpy II, that Sarpy County failed to assign
error to such ruling, and that our mandate in Sarpy II was not
broad enough for the district court to permit Sarpy County
COUNTY OF SArPY v. CITY OF GreTNA 	523
Cite as 276 Neb. 520

to relitigate issues it had waived on appeal. Accordingly,
we affirm.
[3,4] The primary legal issue in this appeal is whether a
consideration of Sarpy County’s motion for accounting was
within the scope of our remand to the district court in Sarpy II.
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. Pennfield Oil Co., supra. In Sarpy II, we
remanded the cause to the district court “with directions to
enter judgment consistent with this opinion.” 273 Neb. at 98,
727 N.W.2d at 696. When an appellate court’s mandate makes
its opinion a part thereof by reference, the lower court should
examine the opinion with the mandate. This allows the lower
court to determine the judgment to be entered or the action to
be taken thereon. Pennfield Oil Co., supra. Thus, we examine
our opinion in Sarpy II to determine whether our mandate per-
mitted the district court to consider Sarpy County’s motion for
accounting on remand.
In our opinion in Sarpy II, we noted that “[t]he single issue
presented in this appeal is whether the two parcels of land
which Gretna sought to annex were contiguous or adjacent to
its existing corporate limits.” 273 Neb. at 95, 727 N.W.2d at
694. We concluded that the annexations were invalid and void
because they did not meet the contiguity or adjacency require-
ment of § 17-405.01. We remanded with directions to enter
judgment consistent with the opinion; because the opinion
addressed only the issue of whether the annexations were valid,
the only judgment to be entered by the district court consistent
with the opinion was an order declaring the annexations invalid
and void.
Sarpy County argues that its request for an accounting
should have been considered by the district court on remand,
because it was still an open issue or the issue was reopened
when we determined that the annexations were invalid and
void. However, we note that in the May 23, 2005, order
appealed from in Sarpy II, the district court stated that although
it found in favor of Gretna with regard to the validity of the
annexations, it nevertheless further found that Sarpy County
“did not produce evidence of damages of any specific losses.”
524 	276 NebrASKA rePOrTS

We read this portion of the order as a ruling on the issue of an
accounting in which the court found that Sarpy County failed,
despite certain evidence, to prove entitlement to such relief.
Sarpy County did not assign error to this ruling in its appeal in
Sarpy II, and we therefore determine that such ruling became
the law of the case with regard to an accounting.
[5-7] The law-of-the-case doctrine reflects the principle that
an issue that has been litigated and decided in one stage of a
case should not be relitigated at a later stage. Pennfield Oil
Co. v. Winstrom, ante p. 123, 752 N.W.2d 588 (2008). The
doctrine promotes judicial efficiency and protects the parties’
settled expectations by preventing parties from relitigating
settled issues within a single action. Id. The doctrine applies
with greatest force when an appellate court remands a case
to an inferior tribunal. Id. Upon remand, a district court may
not render a judgment or take action apart from that which the
appellate court’s mandate directs or permits. Id.
[8] We have recognized that under the mandate branch of the
law-of-the-case doctrine, a decision made at a previous stage
of litigation, which could have been challenged in the ensuing
appeal but was not, becomes the law of the case; the parties are
deemed to have waived the right to challenge that decision. Id.
An issue is not considered waived if a party did not have both
an opportunity and an incentive to raise it in a previous appeal.
Id. Also, we have recognized that an exception to the law-of-
the case doctrine applies if a party shows a material and sub-
stantial difference in the facts on a matter previously addressed
by an appellate court. Id.
We conclude that Sarpy County waived the issue of an
accounting when it failed to assign error to the district court’s
ruling against it on the damage issue in Sarpy II. Sarpy County
had the opportunity to raise the issue on appeal in Sarpy II
and had incentive to do so in order to preserve the issue in the
event this court ruled in its favor on the issue of the validity of
the annexations. There is no credible assertion that there has
been a material and substantial difference in the underlying
facts justifying an exception to the law-of-the-case doctrine.
Sarpy County argues that there is a difference now because the
annexations have been declared invalid and an accounting has
COUNTY OF SArPY v. CITY OF GreTNA 	525
Cite as 276 Neb. 520

become an issue of greater relevance than at the time of the
May 23, 2005, order. We find this argument unpersuasive. In
Sarpy II, Sarpy County appealed from the district court’s May
23 order in which the court had determined that the annexa-
tions were valid and that Sarpy County had proved no dam-
ages. At the time of the appeal in Sarpy II, it was apparent that
the issue of entitlement to an accounting and damages would
become relevant if this court held in Sarpy County’s favor on
the annexation issue. Sarpy County should have assigned error
to the district court’s finding of no damages in order to preserve
the issue for further proceedings; Sarpy County did not assign
such error. because Sarpy County waived the damages issue on
appeal in Sarpy II, the district court’s finding of no damages in
the May 23 order stands as the law of the case.
An appellant waives claims that were decided against it by
the trial court if the appellant elects not to raise those issues
on appeal. Pennfield Oil Co., supra. Sarpy County waived the
accounting issue by failing to assign error to the district court’s
finding of no damages in the May 23, 2005, order from which
it appealed in Sarpy II. The district court’s finding on damages
in the May 23 order stands as the law of the case. The issue
was not part of our mandate on remand, and the district court
did not err when it did not address Sarpy County’s motion
for accounting.
CONCLUSION
Sarpy County waived its challenge to the district court’s
finding of no damages when it failed to assign error to the find-
ing in its appeal in Sarpy II. Our mandate in Sarpy II was not
broad enough to permit Sarpy County on remand to relitigate
the law of the case regarding damages. We therefore conclude
that the district court did not err when it did not address Sarpy
County’s motion for accounting, and we affirm the district
court’s order entering judgment in accordance with our man-
date in Sarpy II.
A ffirmed .
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