Smeal Fire Apparatus Co. v. Kreikemeier

relating to the sexual exploitations of children” and had previ-
ously “observe[d] and review[ed] numerous examples of child
pornography,” including the images in this case. And, similar
conclusions were also reached by both FBI agents. To para-
phrase U.S. v. Chrobak,3 an Eighth Circuit Court of Appeals
case with similar facts, it is unlikely that the issuing judge
would have disagreed with the affiant’s characterization of the
images reviewed by the affiant as child pornography, and it is
likewise unlikely that the issuing judge would have concluded
that the images were not encompassed by the definition of
“sexually explicit conduct” as set forth in § 28-1463.02(5).
For the above reasons, I would find that probable cause was
established and I would affirm on this basis. I therefore concur
in the judgment of the court.
3 U.S. v. Chrobak, 289 F.3d 1043 (8th Cir. 2002).
Smeal F ire apparatuS C o., a NebraSka CorporatioN,
appellee aNd CroSS-appellaNt, v. robert kreikemeier
aNd r. k. maNuFaCturiNg , iNC., appellaNtS
aNd CroSS-appelleeS.
782 N.W.2d 848
Filed April 16, 2010. 	No. S-08-1230.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does
not involve a factual dispute presents a question of law, which an appellate court
independently decides.
2. Contempt. Civil contempt proceedings are instituted to preserve and enforce the
rights of private parties to a suit, to compel obedience to orders and decrees made
to enforce such rights, and to administer the remedies to which the court has
found the parties to be entitled.
3. ____. Civil contempt proceedings are remedial and coercive in their nature.
4. Restitution: Intent: Words and Phrases. “Restitution” under Neb. Rev. Stat.
§ 25-1072 (Reissue 2008) was intended to compensate a complainant’s loss or
injury caused by a party’s violation of an injunction.
5. Constitutional Law: Contempt: Jury Trials. There is no constitutional right to
a jury trial in a contempt proceeding when the court awards compensatory relief.
6. Equity: Jury Trials. Under Nebraska law, parties generally do not have a right
to a jury trial in actions or proceedings which have as their main object equi-
table relief.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

7. Courts: Equity: Jurisdiction. A court properly exercising equity jurisdiction
may completely adjudicate all matters properly presented and grant relief, legal
or equitable, as may be required and thus avoid unnecessary litigation.
8. Injunction: Equity: Contempt. An action for an injunction is equitable in
nature. And a contempt proceeding to protect and enforce parties’ private rights
under an injunction is treated as supplemental to and of the same nature as the
main action.
9. Courts: Equity: Jurisdiction. When a party has properly invoked the court’s
equity jurisdiction in a contempt proceeding, the court may resolve all related
matters presented to it.
10. Courts: Jurisdiction. A court that has jurisdiction to issue an order also has the
power to enforce it.
11. ____: ____. A court can issue orders that are necessary to carry its judgment or
decree into effect.
12. Courts. Nebraska courts, through their inherent judicial power, have the authority
to do all things reasonably necessary for the proper administration of justice. And
this authority exists apart from any statutory grant of authority.
13. Courts: Constitutional Law: Contempt. The power to punish for contempt is
incident to every judicial tribune. It is derived from a court’s constitutional power,
without any expressed statutory aid, and is inherent in all courts of record.
14. Contempt. Compensatory relief that is limited to a complainant’s actual losses
sustained because of a contemnor’s willful contempt is remedial and is not pro-
hibited in a civil contempt proceeding.
15. Contempt: Equity. If a complainant seeks, or a court is considering, a modifica-
tion of an underlying decree as an equitable sanction for contempt of the court’s
decree, the alleged contemnor must first have notice that a modification and a
finding of contempt will be at issue.
16. Contempt: Notice. When an alleged contemnor has notice and an opportunity to
be heard, a court can modify an underlying decree as a remedy for contempt if
the violation cannot be adequately remedied otherwise.
17. Contempt. In general, civil contempt sanctions are remedial if they coerce the
contemnor’s obedience for the benefit of a private party or compensate a com-
plainant for losses sustained.
18. Contempt: Final Orders. Under Nebraska law, an order of contempt in a post-
judgment proceeding to enforce a previous final judgment is properly classified
as a final order; the contempt order affects a substantial right, made upon a sum-
mary application in an action after judgment.
19. Contempt: Appeal and Error. For appeal purposes, the distinction between
criminal and civil contempt sanctions has no relevance to whether a party may
appeal from a final order in a supplemental postjudgment contempt proceeding.
20. 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.
21. ____: ____. on appeal, the law-of-the-case doctrine is a rule of discretion,
not jurisdiction.
22. Actions: Final Orders: Appeal and Error. The law-of-the-case doctrine requires
a final order. A party is not bound by a court’s findings in an order that it was not
required to appeal.
662 	279 NEBRASkA REpoRTS

23. Constitutional Law: Courts: Equity: Injunction: Statutes. District courts have
equity power under the Nebraska Constitution to grant permanent injunctions.
And that power cannot be abridged by statute.
24. Courts: Equity: Injunction. A court of equity has the power to interpret its own
injunctive decree if a party later claims that a provision is unclear.
25. Injunction: Appeal and Error. The critical question for appeal purposes is
whether a clarification order merely interprets an injunctive decree or whether it
modifies the decree in a way that affects a party’s substantial right.
26. Injunction: Final Orders. A court’s order clarifying a permanent injunction is a
final order only if it changes the parties’ legal relationship by expanding or relax-
ing the terms, dissolving the injunction, or granting additional injunctive relief.
27. Contempt. In determining whether a party is in contempt of an order, a court may
not expand an earlier order’s prohibitory or mandatory language beyond a reason-
able interpretation considering the purposes for which the order was entered.
28. Contracts: Intent: Evidence. Contract principles generally apply to the enforce-
ment of consent decrees. And these principles prohibit a court from considering
extrinsic evidence of the decree’s meaning absent some ambiguity.
29. Contempt: Final Orders: Appeal and Error. An appellate court, reviewing a
final judgment or order in a contempt proceeding, reviews for errors appearing on
the record.
30. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
31. Contempt: Appeal and Error. A trial court’s factual finding in a contempt pro-
ceeding will be upheld on appeal unless the finding is clearly erroneous.
32. Contempt: Words and Phrases. When a party to an action fails to comply with
a court order made for the benefit of the opposing party, such act is ordinarily
a civil contempt, which requires willful disobedience as an essential element.
“Willful” means the violation was committed intentionally, with knowledge that
the act violated the court order.
33. Contempt: Proof. Under Nebraska law, a party seeking to hold another in con-
tempt of an order has the heavy burden of establishing that contempt beyond a
reasonable doubt.
34. Injunction: Notice. Since an injunctive order prohibits conduct under threat of
judicial punishment, basic fairness requires that those enjoined receive explicit
notice of precisely what conduct is outlawed.
35. Contempt: Notice. A court cannot hold a person or party in contempt unless
the order or consent decree gave clear warning that the conduct in question was
required or proscribed.
36. Trade Secrets: Injunction: Contempt. Injunctions protecting trade secrets may
justify less specificity than other orders or decrees to avoid disclosing a plain-
tiff’s trade secret. Ambiguities in such decrees involving technical or scientific
knowledge may require courts to review the context in which the injunction was
entered to determine what conduct the defendant reasonably should have known
was prohibited. Ambiguities that persist even when considered in the light of the
record or after applying other aids of interpretation must be construed in favor of
the person or party charged with contempt.
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Cite as 279 Neb. 661

37. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney fees, can
be awarded in a contempt proceeding.
38. Actions: Proof. The standard of proof functions to instruct fact finders about the
degree of confidence our society believes they should have in the correctness of
their factual conclusions for a particular type of adjudication.
39. Actions: Due Process: Proof. In civil cases, when a party’s interests are substan-
tial and involve more than the mere loss of money, but obviously do not involve
a criminal conviction, due process is satisfied by an intermediate “clear and con-
vincing” standard of proof.
40. Contempt: Criminal Law: Proof. proof beyond a reasonable doubt is a criminal
trial protection that does not apply to civil contempt proceedings.
41. Contempt: Proof. As of the date of this opinion, outside of statutory procedures
imposing a different standard, it is the complainant’s burden to prove civil con-
tempt by clear and convincing evidence.
Appeal from the District Court for Dodge County: gerald
e. moraN, Judge. Reversed and remanded with directions.
Thomas B. Thomsen, of Sidner, Svoboda, Schilke, Thomsen,
Holtorf, Boggy, Nick & placek, for appellants.
paul R. Elofson, of Fitzgerald, Schorr, Barmettler & Brennan,
p.C., l.l.o., for appellee.
H eaviCaN, 	C.J., 	WrigHt, 	C oNNolly, 	gerrard, 	StepHaN,
mCC ormaCk , and miller-lermaN, JJ.
C oNNolly, J.
I. SUmmARY
This is a second appeal from a contempt order. The district
court entered a preliminary injunction in 1989 and a permanent
injunction in 1990, upon the parties’ stipulated settlement.
The injunction enjoined the appellants, Robert kreikemeier
and R. k. manufacturing, Inc. (collectively R.k.), from using
or disclosing a manufacturing process used by Smeal Fire
Apparatus Co., Inc. (SFAC), in the hydraulic systems of its
aerial firefighting ladders. The district court has twice found
that R.k. willfully disobeyed its injunction order. In our 2006
opinion, Smeal Fire Apparatus Co. v. Kreikemeier (Smeal I),1
1 Smeal Fire Apparatus Co. v. Kreikemeier, 271 Neb. 616, 715 N.W.2d 134
(2006).
664 	279 NEBRASkA REpoRTS

we dismissed R.k.’s first appeal from the court’s first contempt
order for lack of a final order.
on remand, a different judge again found R.k. in contempt
of the injunction and imposed a coercive sanction of $5,000
per day, costs, and fees. SFAC moved for summary dismissal
of R.k.’s appeal, arguing that the second order was also not a
final, appealable order.
Although there is no graceful way of retreating from this
court’s previous rulings, some of our troubling contempt cases
have created needless difficulties at both the trial and the appel-
late levels. An untangling of the snarls was long overdue. our
decision changes the legal landscape of our present contempt
law. We overrule a long line of cases affecting a trial court’s
jurisdiction, an appellate court’s jurisdiction, and the standard
of proof in civil contempt cases.
We first address the jurisdictional issues. In determining that
we have jurisdiction, we overrule cases that have unnecessar-
ily limited a court’s inherent and statutorily granted contempt
powers and cases that have precluded appellate review of final
civil contempt orders. These cases’ roots run deep. Correcting
our contempt jurisprudence will require extensive pruning.
The first jurisdictional issue presents the question whether
a district court has power in a contempt proceeding to order
compensatory or equitable relief. Next, we address whether a
contemnor can appeal a civil contempt order from a separate
postjudgment proceeding.
We will set out our holding with more specificity in the fol-
lowing pages; but, briefly, it is this: We hold that in a civil con-
tempt proceeding, a district court has inherent power to order
compensatory relief when a contemnor has violated its order
or judgment. We further hold that whether a contempt sanction
is civil or criminal is relevant only when a party appeals from
an interlocutory order of contempt. An interlocutory contempt
order is an order that a court issues during an ongoing proceed-
ing before the final judgment in the main action. Because R.k.
appeals a final contempt order from a supplemental postjudg-
ment contempt proceeding, we have jurisdiction.
Regarding the substantive issues, we conclude that the court
erred in finding that R.k. had willfully violated the injunction.
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Cite as 279 Neb. 661

The injunction contained ambiguous terms that could only
be clarified by reviewing the preliminary injunction record.
A review of that record shows that the injunction did not
give R.k. clear warning that it could be held in contempt for
its conduct.
Finally, we conclude that for future cases, the standard of
proof in civil contempt proceedings is clear and convincing evi-
dence, unless the legislature has mandated another standard.
II. BACkGRoUND
SFAC and R.k. both manufacture aerial firefighting ladders.
SFAC formerly employed kreikemeier. In 1990, to resolve its
trade secrets claim against R.k., SFAC obtained an agreed-
upon injunction order. The order enjoined R.k. from using
or disclosing SFAC’s manufacturing process for a hydraulic
valve spool.
In 2001, SFAC claimed that R.k. had violated the injunc-
tion. And the district court found R.k. to be in willful con-
tempt. The court ordered R.k., as a condition to purge itself
of contempt, to take the following actions: (1) within 30 days,
notify the court of all of R.k.’s units with parts manufactured
that violated the injunction; (2) within 60 days, notify pur-
chasers that their use of the units violated the injunction; and
(3) within 2 years, make a good faith effort to obtain agree-
ments with the unit purchasers to exchange the parts. It also
ordered R.k. to pay court costs, attorney fees, and expert wit-
ness fees.
R.k. appealed. The Court of Appeals relied on this court’s
decisions that a contemnor can only attack a coercive sanction
through a habeas corpus proceeding. It concluded that R.k.
could not appeal the district court’s order imposing a coercive
sanction.2 The Court of Appeals nonetheless concluded that
it could review that part of the order requiring R.k. to pay
costs and fees because R.k. could not avoid those awards. It
concluded that the district court had not abused its discretion
2 See Smeal Fire Apparatus Co. v. Kreikemeier, 13 Neb. App. 21, 690
N.W.2d 175 (2004), overruled in part, Smeal I, supra note 1.
666 	279 NEBRASkA REpoRTS

in making these awards. We granted R.k.’s petition for fur-
ther review.
In Smeal I,3 like the Court of Appeals, we also dismissed
R.k.’s appeal for lack of jurisdiction. But we vacated the Court
of Appeals’ decision exercising jurisdiction over the award of
attorney fees and costs. We repeated our previous holding that
“‘the imposition of a coercive sanction is never final and may
not be attacked by direct appeal.’”4 Also, we repeated our other
previous holding that a district court lacks jurisdiction to order
equitable relief in a contempt proceeding. We further concluded
that the court’s award of attorney fees and costs could not be
extracted from the impermissible grant of equitable relief. We
dismissed the appeal and vacated the court’s order, including
the award of attorney fees and costs.
on remand, after a hearing, the district court reaffirmed
its earlier finding by a different judge that R.k. was will-
fully in contempt. The court adopted and reiterated the earlier
injunction requirements, prohibiting R.k. from using SFAC’s
manufacturing process. It interpreted our mandate as requir-
ing it to impose a purge plan that did not grant equitable relief
to SFAC and to include a coercive sanction to obtain R.k.’s
compliance.
Accordingly, the court’s order required R.k. to do two
things within 10 days. First, R.k. had to inform its current
and former employees, officers, managers, stockholders, part-
ners, and manufacturing agents of the court’s order prohibit-
ing the grinding or milling of the disputed valve spool, in
the manner exemplified by exhibit 210. Second, kreikemeier
had to file an affidavit attesting under penalty of perjury that
R.k. had held a company meeting in which R.k. informed the
above persons of the court’s prohibition on the manufactur-
ing process, as illustrated by a photograph from exhibit 210.
As a coercive sanction, the court stated that if R.k. failed
to comply with its order, it would assess a fine of $5,000
3 Smeal I, supra note 1.
4 Id. at 621, 715 N.W.2d at 140, quoting Maddux v. Maddux, 239 Neb. 239,
475 N.W.2d 524 (1991).
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	667
Cite as 279 Neb. 661

per day, jointly and severally, until R.k. complied. The fine
would begin on the 11th day after the court entered its order.
Finally, the court assessed $126,601.29 in costs and attorney
fees against R.k.
R.k. appealed the court’s finding of contempt before the
11th day. Quoting from our 2006 decision, SFAC again moved
this court to summarily dismiss the appeal for lack of jurisdic-
tion because there was no final order. R.k. resisted SFAC’s
motion. R.k. contended that the court had again entered an
impermissible order awarding equitable relief. And R.k. argued
that because it could not mitigate the coercive fine and award
of attorney fees and costs, this was a final, appealable contempt
order. We overruled SFAC’s motion, subject to reconsideration
upon submission of the case on the merits.
III. ASSIGNmENTS oF ERRoR
R.k. assigns, condensed and restated, that the district court
erred in (1) finding that R.k.’s willful disobedience of the
court’s 1990 injunction order had been established beyond
a reasonable doubt; (2) finding that kreikemeier had admit-
ted that R.k. violated the order; (3) ignoring SFAC’s expert
witness’ testimony at the preliminary injunction hearing and
a 2002 deposition; and (4) failing to find that exhibit 43, a
diagram used by SFAC’s expert witness, is the correct depic-
tion of SFAC’s trade secret protected by the court’s perma-
nent injunction.
on cross-appeal, SFAC assigns two errors: (1) the court
erred in failing to award it the full amount of its requested
attorney fees and costs; and (2) the court erred in failing to rule
that its January 2008 order was the law of the case or res judi-
cata on the factual issue that R.k.’s grinding method violated
the injunction.
As noted, however, SFAC moved to dismiss this appeal for
lack of a final order. An appellate court lacks jurisdiction to
entertain appeals from nonfinal orders.5 So, before reaching
the substantive issues raised by R.k.’s assignments of error, we
determine whether we have jurisdiction.
5 Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).
668 	279 NEBRASkA REpoRTS

IV. ANAlYSIS
1. JuriSdiCtioN
(a) parties’ Contentions
SFAC contends that the court’s November 2008 contempt
order is not a final order because it imposed civil, coercive
sanctions. Relying on our 2006 opinion in Smeal I, it argues
that contempt orders imposing civil, coercive sanctions are
always nonfinal orders, which a contemnor can only attack
through habeas corpus proceedings.
R.k. disagrees. It contends that the order is final under our
decisions in Dunning v. Tallman6 and State ex rel. Kandt v.
North Platte Baptist Church.7 In Smeal I, we relied on our deci-
sion in Dunning to hold that the trial court lacked jurisdiction
to grant equitable relief. R.k. argues that the trial court has
again required it to comply with a purge condition that granted
SFAC equitable relief. It implicitly argues that the court lacked
jurisdiction to enter this order. In addition, R.k. argues that
under State ex rel. Kandt, we will review a contempt order
after the trial court imposes a fine on the contemnor that cannot
be mitigated. R.k. attempts to distinguish the district court’s
2003 order that imposed contempt sanctions and was appealed
in Smeal I. It contends that in Smeal I, we concluded that the
2003 order was a nonfinal order because it attempted to grant
equitable relief to SFAC with no consequence for noncompli-
ance. R.k. argues that in contrast to the 2003 order, the court’s
2008 order imposes a sanction for its failure to comply with its
purge plan—and so there is a final order.
(b) Standard of Review
[1] A jurisdictional issue that does not involve a fac-
tual dispute presents a question of law, which we indepen-
dently decide.8
6 Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993).
7 State ex rel. Kandt v. North Platte Baptist Church, 225 Neb. 657, 407
N.W.2d 747 (1987).
8 In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
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Cite as 279 Neb. 661

(c) Scope of Court’s powers in a
Contempt proceeding
Before discussing whether this is a final, appealable order,
we address R.k.’s argument that the court lacked jurisdic-
tion to grant equitable relief to SFAC through its purge plan.
obviously, if the court lacked jurisdiction to enter this order,
we must reverse the order and dismiss the appeal.
Woven into the fabric of our case law are rules prohibiting
both compensatory and equitable relief to a party injured by a
contemnor’s violation of a court’s order or judgment. As noted,
we relied on Dunning in Smeal I to conclude that the trial court
lacked jurisdiction to impose its first purge plan and had there-
fore entered an extrajudicial award of equitable relief. The rule
against granting equitable relief emerged from our rule that a
court cannot grant compensatory relief to an injured party in a
contempt proceeding. But these rules have put trial courts in
a judicial straightjacket and impeded their inherent authority to
remedy a civil contempt. So, while we do not agree with R.k.
that the court’s purge plan on remand again granted equitable
relief to SFAC, we conclude that R.k.’s argument raises a
broader jurisdictional problem.
We believe our rule that courts lack jurisdiction to grant
compensatory or equitable relief in a contempt proceeding to
enforce an injunction is contrary to Neb. Rev. Stat. § 25-1072
(Reissue 2008). It also conflicts with a court’s inherent con-
tempt powers. In overlooking § 25-1072, we have sowed con-
fusion regarding a court’s contempt powers.
The legislature has not amended § 25-1072 since 1929. The
statute sets forth the relief that a court may order for a party’s
contempt of an injunction:
An injunction granted by a judge may be enforced as
the act of the court. Disobedience of an injunction may
be punished as a contempt by the court . . . . [A] party
guilty of [contempt] may be required, in the discretion
of the court or judge, to pay a fine not exceeding two
hundred dollars, for the use of the county, to make imme-
diate restitution to the party injured, and give further
security to obey the injunction; or, in default thereof,
he may be committed to close custody, until he shall
670 	279 NEBRASkA REpoRTS

fully comply with such requirements, or be otherwise
legally discharged.
(i) Our Rule Prohibiting
Compensatory Relief
our decision in Dunning, prohibiting a court’s grant of
equitable relief in a contempt proceeding, has its roots in
Kasparek v. May.9 So, we first discuss our prohibition against
compensatory relief. In Kasparek, we excluded indemnity for
damages from the relief a court can order for contempt of
an injunction. Kasparek dealt with a contemnor’s violating
a permanent injunction. The injunction enjoined him from
maintaining a dike and required him to remove it or to lower
it and build a drainage ditch around it. In addition to enforc-
ing the injunction, the adjacent landowner sought damages. We
rejected damages as a remedy. We stated that we did not agree
with jurisdictions holding that in contempt proceedings “a fine
may be imposed for the indemnification of the person who has
been damaged by the failure to perform.”10 We held that civil
contempt is available to enforce a previous judgment, but not
to afford a remedy for subsequent damages: “If [the adjacent
landowner] suffered further damages, his remedy is an action
at law for the subsequent damage.”11 But we did not cite or
discuss § 25-1072.
And, in Kasparek, we did not cite to any cases from other
jurisdictions. But other state courts that prohibit compensatory
fines in contempt proceedings generally rely on the language
of their governing state statutes.12 Some of these courts have
reasoned that compensatory fines award damages without giv-
ing the contemnor the right to a jury trial.13 other courts,
like this court in Kasparek, have reasoned that the purpose
of civil contempt sanctions is only to compel obedience to
9 Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963).
10 Id. at 741, 119 N.W.2d at 519.
11 Id.
12 See Annot., 85 A.l.R.3d 895 § 5 (1978 & Supp. 2009).
13 See H. J. Heinz Co. v. Superior Court, 42 Cal. 2d 164, 266 p.2d 5
(1954).
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Cite as 279 Neb. 661

a past order. They conclude that requiring the contemnor to
pay money damages to the injured party is inconsistent with
that purpose.14
But these reasons conflict with § 25-1072. It plainly states
that a trial court may order a contemnor to “make immediate
restitution to the party injured” for violation of an injunction.
So, § 25-1072 is consistent with what we have stated about the
remedial purpose of civil contempt proceedings.
[2,3] Civil contempt proceedings are “‘instituted to pre-
serve and enforce the rights of private parties to the suit and
to compel obedience to orders and decrees made to enforce
the rights and to administer the remedies to which the court
has found them to be entitled . . . .’”15 Civil contempt pro-
ceedings are remedial and coercive in their nature.16 “‘If it is
for civil contempt[,] the punishment is remedial, and for the
benefit of the complainant.’”17 Remedying the complainant’s
injury for a contemnor’s disobedience clearly protects and
enforces the complainant’s rights under the original order or
judgment. So, our holding in Kasparek that excluded com-
pensatory relief thwarted a primary purpose for initiating civil
contempt proceedings.
[4] moreover, we have recognized that restitution can serve
the remedial purpose of compensating an injured party. It is true
that restitution, strictly speaking, normally refers to restoration
of an economic benefit; it can also refer to a money substitution
for an economic benefit that the defendant unjustly obtained at
the plaintiff’s expense.18 So, the measurement of restitution
14 See Dodson v. Dodson, 380 md. 438, 845 A.2d 1194 (2004).
15 See, Eliker v. Eliker, 206 Neb. 764, 770, 295 N.W.2d 268, 272 (1980)
(emphasis supplied), quoting Maryott v. State, 124 Neb. 274, 246 N.W.
343 (1933); McFarland v. State, 165 Neb. 487, 86 N.W.2d 182 (1957);
Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274 (1948).
16 McFarland, supra note 15, quoting In re Nevitt, 117 F. 448 (8th Cir. 1902).
Accord Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492,
55 l. Ed. 797 (1911).
17 McFarland, supra note 15, 165 Neb. at 492, 86 N.W.2d at 185, quoting
Gompers, supra note 16.
18 See, Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004); 1 Dan B.
Dobbs, Dobbs law of Remedies § 4.1(1) (2d ed. 1993).
672 	279 NEBRASkA REpoRTS

is normally a defendant’s unjust gain and may exceed money
damages, which are generally measured by a plaintiff’s loss.19
But under a juvenile restitution statute, we have stated that res-
titution generally “encompasses the ‘[r]eturn or restoration of
some specific thing to its rightful owner’ or ‘[c]ompensation for
loss.’”20 And under a criminal restitution statute, we have stated
that restitution is remedial when it is limited to the injured
party’s actual losses.21 other courts with statutes identical to
§ 25-1072 have similarly concluded that restitution under that
state’s statute includes compensatory relief for a plaintiff’s loss
or injury.22 We agree. Under § 25-1072, it serves no purpose to
impose a technical understanding of the term “restitution.” The
legislature clearly intended “restitution” under this statute to
compensate a complainant’s loss or injury caused by a party’s
violation of an injunction.23
[5-7] Finally, a contemnor is not denied a right to a jury
trial by an award of compensatory relief under § 25-1072.
There is no constitutional right to a jury trial in a contempt
proceeding when the court awards compensatory relief.24 And
under Nebraska law, parties generally do not have a right
to a jury trial in actions or proceedings which have as their
main object equitable relief.25 Also, a court properly exercis-
ing equity jurisdiction may completely adjudicate all matters
19 See 1 Dobbs, supra note 18.
20 In re Interest of Brandon M., 273 Neb. 47, 52, 727 N.W.2d 230, 235
(2007), quoting Black’s law Dictionary 1339 (8th ed. 2004).
21 See State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006). Accord,
Hicks v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99 l. Ed. 2d 721 (1988);
Gompers, supra note 16.
22 See, Holloway v. Water Co., 100 kan. 414, 167 p. 265 (1917); Cincinnati v.
Council, 35 ohio St. 2d 197, 299 N.E.2d 686 (1973); Malnar v. Whitfield,
774 p.2d 1075 (okla. App. 1989). See, also, 66 Am. Jur. 2d Restitution § 1
(2001).
23 See Webster’s Encyclopedic Unabridged Dictionary of the English
language 1222 (1994) (defining restitution).
24 See Mine Workers v. Bagwell, 512 U.S. 821, 114 S. Ct. 2552, 129 l. Ed.
2d 642 (1994).
25 See State ex rel. Cherry v. Burns, 258 Neb. 216, 602 N.W.2d 477 (1999).
See, also, Eihusen v. Eihusen, 272 Neb. 462, 723 N.W.2d 60 (2006).
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properly presented and grant relief, legal or equitable, as may
be required and thus avoid unnecessary litigation.26
[8,9] An action for an injunction is equitable in nature.27 And
a contempt proceeding to protect and enforce parties’ private
rights under an injunction is treated as supplemental to and of
the same nature as the main action.28 It is true that “[r]estitution
claims for money are usually claims ‘at law,’”29 which could
be resolved without resort to equity.30 But when a party has
properly invoked the court’s equity jurisdiction in a contempt
proceeding, the court may resolve all related matters presented
to it.
In sum, the reasons other courts have given for precluding
compensatory relief in contempt proceedings do not apply
under § 25-1072. Nor was our decision in Kasparek consistent
with § 25-1072’s specific grant of the power to order restitution
in a contempt proceeding to enforce an injunction. Although
§ 25-1072 is limited to remedies for violating an injunctive
decree, our holding in Kasparek applies to any civil contempt
proceeding. And the holding in Kasparek clashes with a court’s
inherent power in civil contempt proceedings to take necessary
actions to enforce its order and administer justice.
(ii) A Court Has Inherent Power to Remedy
Violations of Its Orders
Before we decided Kasparek, we had held that § 25-1072
cannot limit a district court’s inherent power to punish for
contempt of its orders: “[T]he power to punish for contempt of
court is a power inherent in all courts of general jurisdiction,
26 See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d
894 (1999). See, also, Hull v. Bahensky, 196 Neb. 648, 244 N.W.2d 293
(1976).
27 See Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007).
28 See, Leman v. Krentler-Arnold Co., 284 U.S. 448, 52 S. Ct. 238, 76 l.
Ed. 389 (1932); Gompers, supra note 16. Compare Lowe v. Prospect Hill
Cemetery Ass’n, 75 Neb. 85, 106 N.W. 429 (1905).
29 See 1 Dobbs, supra note 18 at 556.
30 See Hornig v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764
(2000).
674 	279 NEBRASkA REpoRTS

. . . independent of any special or express grant of statute.”31 In
State ex rel. Beck v. Frontier Airlines,32 the contemnor argued
that the district court lacked authority to impose a fine above
the $200 specified in § 25-1072. We rejected that argument
and affirmed the court’s $1,000 fine for each day of a specified
period that the defendant violated the court’s injunction.
[10-13] We have stated that a court that has jurisdiction to
issue an order also has the power to enforce it.33 A court can
issue orders that are necessary to carry its judgment or decree
into effect.34 Nebraska courts, through their inherent judicial
power, have the authority to do all things reasonably necessary
for the proper administration of justice.35 And this authority
exists apart from any statutory grant of authority. We have
recently explained that the power to punish for contempt is
incident to every judicial tribune. It is derived from a court’s
constitutional power, without any expressed statutory aid, and
is inherent in all courts of record.36
[14] Similarly, federal courts and other state courts hold that
courts of general jurisdiction have broad remedial power to
enforce their orders, judgments, or decrees.37 “The measure of
the court’s power in civil contempt proceedings is determined
by the requirements of full remedial relief.”38 So, we hold that
31 State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 181, 116 N.W.2d
281, 286 (1962).
32 See id.
33 See Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
34 See Laschanzky v. Laschanzky, 246 Neb. 705, 523 N.W.2d 29 (1994).
35 See id.
36 See Penn Cal, L.L.C. v. Penn Cal Dairy, 264 Neb. 122, 646 N.W.2d
601 (2002), quoting State v. Davidson, 260 Neb. 417, 618 N.W.2d 418
(2000).
37 See, e.g., U.S. v. Alcoa, Inc., 533 F.3d 278 (5th Cir. 2008); McGregor v.
Chierico, 206 F.3d 1378 (11th Cir. 2000); King v. Allied Vision, Ltd., 65
F.3d 1051 (2d Cir. 1995); Kidder v. Kidder, 135 N.H. 609, 609 A.2d 1197
(1992); State v. Walton, 215 or. App. 628, 170 p.3d 1122 (2007); Mulligan
v. Piczon, 739 A.2d 605 (pa. Commw. 1999).
38 McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S. Ct. 497, 93
l. Ed. 599 (1949). See, also, Sheet Metal Workers v. EEOC, 478 U.S. 421,
106 S. Ct. 3019, 92 l. Ed. 2d 344 (1986).
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compensatory relief that is limited to a complainant’s actual
losses sustained because of a contemnor’s willful contempt is
remedial and is not prohibited in a civil contempt proceeding.
Accordingly, we overrule Kasparek v. May39 to the extent that it
prohibits compensatory relief in a contempt proceeding.
(iii) Courts Are Not Prohibited From Granting
Any Equitable Relief for Contempt
R.k. argues that under our decision in Dunning,40 a court
does not have jurisdiction to grant equitable relief to remedy a
civil contempt.
In Dunning, we relied solely on Kasparek to hold that a court
lacks jurisdiction to order equitable relief in a civil contempt
proceeding. In Dunning, the contemnor violated a noncompeti-
tion agreement. The agreement was part of the parties’ property
settlement agreement and incorporated into the marital dissolu-
tion decree. The complainant asked the court to extend the
noncompetition agreement as a sanction for the contempt. The
court fined the contemnor $20,000 for her contempt, but its
purge plan permitted her to avoid the fine by complying with
the noncompetition agreement for an additional year. When she
refused, the court made the fine unconditional.
on appeal, we stated that a court cannot impose punitive
fines in civil contempt proceedings. But we reasoned that the
fine was not necessarily a punitive sanction for contempt if it
permissibly coerced compliance with the extended duration
of the noncompetition agreement. And we recognized that in
actions for injunctions, other courts had used their equitable
powers to extend the duration of noncompetition agreements
equal to the duration of the breach. But we concluded that
the requested relief—an extension of a noncompetition agree-
ment—was not allowable in a civil contempt proceeding. We
determined that it was analogous to the damages requested
in Kasparek: “Because an award of damages is unavailable
in a civil contempt proceeding, . . . then, under the Kasparek
39 Kasparek, supra note 9.
40 Dunning, supra note 6.
676 	279 NEBRASkA REpoRTS

rationale, a civil contempt proceeding cannot be the means to
afford equitable relief to a party.”41 more specifically, we held
that in imposing a sanction for civil contempt, a court cannot
use, as a requisite to purge contempt, a condition that affords
equitable relief to a party.42 We further held that “the trial court
lacked jurisdiction or power to require that [the contemnor]
comply with the judicially extended noncompetition provision
as a means to avoid the $20,000 fine.”43
Yet, like our holding in Kasparek, our holding in Dunning is
inconsistent with a court’s inherent power to enforce its orders.
our holding in Dunning sprouted from Kasparek, which we
have now overruled as an improper limitation on a court’s
remedial powers for violations of its orders or judgments.
So, our prohibition against equitable relief has unnecessarily
choked our contempt jurisprudence. Accordingly, we also over-
rule the prohibition in Dunning v. Tallman44 against a court’s
granting any equitable relief in a contempt proceeding.
(iv) Restrictions on Court’s Power to Order
Equitable Relief for Contempt
like injunctions, both an original marital dissolution pro-
ceeding 	and 	proceedings 	for 	modification 	of 	dissolution
decrees are equitable in nature.45 We permit a party to use
contempt proceedings to enforce a property settlement agree-
ment incorporated into a divorce decree.46 And a district
court, in exercising its broad jurisdiction over marriage dis-
solutions, retains jurisdiction to enforce all terms of approved
property settlement agreements.47 Because of the court’s con-
tinuing equity jurisdiction over the decree, the power to
41 Id. at 11, 504 N.W.2d at 93.
42 Id.
43 Id.
44 Dunning, supra note 6.
45 See Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999).
46 See Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303 (1994). See, also,
Grady v. Grady, 209 Neb. 311, 307 N.W.2d 780 (1981).
47 Strunk, supra note 33.
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provide equitable relief in a contempt proceeding is particu-
larly appropriate.48
[15] But there are limits to a court’s power to order equi-
table relief in a contempt proceeding. We have held that a court
cannot modify a dissolution decree in a contempt proceeding
absent an application for a modification and notice that a party
seeks modification.49 Similarly, parties must have notice and a
hearing before a court modifies a permanent injunction.50 So, if
a complainant seeks, or a court is considering, a modification
of the underlying decree as an equitable sanction for contempt
of the court’s decree, the alleged contemnor must first have
notice that a modification and a finding of contempt will be
at issue.
[16] But when the alleged contemnor has notice and an
opportunity to be heard, a court can modify the underlying
decree as a remedy for contempt if the violation cannot be
adequately remedied otherwise.
Having determined that a court has jurisdiction to order
compensatory and equitable relief, we now consider whether
the court’s order of civil sanctions was appealable.
(d) Existing Nebraska Case law prohibits a Contemnor’s
Appeal From a Civil Contempt order
We have held that a contemnor cannot appeal a contempt
order if it imposes a civil, coercive sanction.51 In Smeal I, we
repeated this rule and noted that the rule’s origin was our 1984
decision in In re Contempt of Liles (Liles).52 After Liles, both
this court and the Nebraska Court of Appeals have stated in
many other cases that contempt orders imposing civil sanctions
48 See Erickson v. Erickson, 998 So. 2d 1182 (Fla. App. 2008).
49 See, Mays v. Mays, 229 Neb. 674, 428 N.W.2d 618 (1988); Neujahr v.
Neujahr, 223 Neb. 722, 393 N.W.2d 47 (1986); Neujahr v. Neujahr, 218
Neb. 585, 357 N.W.2d 219 (1984).
50 See, e.g., Baum v. Blue Moon Ventures, LLC, 513 F.3d 181 (5th Cir. 2008);
Arata v. Nu Skin Intern., Inc., 96 F.3d 1265 (9th Cir. 1996); U.S. v. Western
Elec. Co., 894 F.2d 430 (D.C. Cir. 1990).
51 See, Dunning, supra note 6; State ex rel. Kandt, supra note 7.
52 In re Contempt of Liles, 216 Neb. 531, 344 N.W.2d 626 (1984).
678 	279 NEBRASkA REpoRTS

are not final, appealable orders or that such orders can be
attacked only through a habeas corpus proceeding.53
All but one of our later cases involved a final contempt order
from a postjudgment proceeding to enforce a previous final
judgment. And whether we reviewed those contempt orders
hinged upon whether the trial court’s sanction was civil or
criminal. We would review orders imposing criminal sanctions
but not orders imposing civil sanctions.
[17] In general, civil contempt sanctions are remedial if they
coerce the contemnor’s obedience for the benefit of a private
party or compensate a complainant for losses sustained.54 As
we have often stated, a coercive contempt sanction is condi-
tioned upon the contemnor’s continued noncompliance with
a court order; i.e., the defendant is in a position to mitigate
the sentence by complying with the court’s order.55 In con-
trast, criminal contempt sanctions are punitive. They vindi-
cate the court’s authority and cannot be ended by any act of
the contemnor.56
As we know, a critical distinction exists between civil and
criminal sanctions: A court can impose criminal, or punitive,
53 See, Smeal I, supra note 1; Allen v. Sheriff of Lancaster Cty., 245 Neb.
149, 511 N.W.2d 125 (1994); Dunning, supra note 6; Maddux, supra note
4; State ex rel. Collins v. Beister, 227 Neb. 829, 420 N.W.2d 309 (1988);
State ex rel. Kandt, supra note 7; State ex rel. Kandt v. North Platte Baptist
Church, 219 Neb. 694, 365 N.W.2d 813 (1985); In re Contempt of Sileven,
219 Neb. 34, 361 N.W.2d 189 (1985); Sorensen v. Peterson, 218 Neb. 680,
358 N.W.2d 742 (1984); Rol v. Rol, 218 Neb. 305, 353 N.W.2d 19 (1984);
Frandsen v. Frandsen, 216 Neb. 828, 346 N.W.2d 398 (1984); City of
Beatrice v. Meints, 12 Neb. App. 276, 671 N.W.2d 243 (2003); Michael B.
v. Donna M., 11 Neb. App. 346, 652 N.W.2d 618 (2002); In re Interest of
Simon H., 8 Neb. App. 225, 590 N.W.2d 421 (1999); Jessen v. Jessen, 5
Neb. App. 914, 567 N.W.2d 612 (1997); Robbins v. Robbins, 3 Neb. App.
953, 536 N.W.2d 77 (1995); Hammond v. Hammond, 3 Neb. App. 536, 529
N.W.2d 542 (1995).
54 See, Bagwell, supra note 24; McFarland, supra note 15, quoting Gompers,
supra note 16.
55 See, e.g., Smeal I, supra note 1, citing Liles, supra note 52; State ex rel.
Kandt, supra note 7.
56 See In re Contempt of Sileven, supra note 53, quoting Southern Railway
Company v. Lanham, 403 F.2d 119 (5th Cir. 1968).
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sanctions only if the proceedings afford the protections offered
in 	a 	criminal 	proceeding.57 Another 	distinction 	relates 	to
appeals. A contemnor can always appeal from a criminal con-
tempt order.58 But the issue here is whether a party can appeal
from a civil contempt order. In Liles, we misread federal case
law on this issue. And, unfortunately, Liles and its progeny
have spawned considerable confusion. To clear the confusion,
we look to federal rules for when a contemnor can appeal a
civil contempt order.
(i) Federal Rules Permit a Party’s Appeal From
a Final Contempt Judgment
The U.S. Supreme Court has held that federal appellate
courts cannot review a party’s appeal from a trial court’s inter-
locutory contempt order. Appellate courts can only review final
contempt judgments. And a contempt order issued before a final
decree in the main action is only final if it imposes a criminal
sanction to vindicate the court’s authority.59 Accordingly, fed-
eral appellate courts will review interlocutory contempt orders
against parties only in a party’s appeal from the final decree
or judgment.60 For example, if a party failed to comply with a
discovery ruling, the trial court’s contempt order would consti-
tute an interlocutory contempt order that was unreviewable by
an appellate court except as part of the party’s appeal from the
trial court’s final judgment.
Federal courts apply the same rule to contempt orders issued
during supplemental postjudgment proceedings still in prog-
ress; parties must seek review of such orders as part of their
appeal from the final judgment.61 The only appeals that the
57 See, e.g., Dunning, supra note 6; State ex rel. Reitz v. Ringer, 244 Neb.
976, 510 N.W.2d 294 (1994), overruled on other grounds, Cross v.
Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999); Leeman, supra note 15.
58 See Smeal I, supra note 1.
59 See Doyle v. London Guarantee Co., 204 U.S. 599, 27 S. Ct. 313, 51 l.
Ed. 641 (1907).
60 See 15B Charles Alan Wright et al., Federal practice and procedure § 3917
at 387 (2d ed. 1992) (citing cases).
61 See Fox v. Capital Co., 299 U.S. 105, 57 S. Ct. 57, 81 l. Ed. 67 (1936).
680 	279 NEBRASkA REpoRTS

U.S. Supreme Court has permitted from interlocutory, civil
contempt orders are nonparty appeals. This exception exists
because nonparties could never obtain review of such orders.62
But most federal appellate courts have explicitly held that a
final contempt judgment from a postjudgment contempt pro-
ceeding to enforce a previous final judgment is appealable.63
Under federal case law, the distinction between criminal or
civil sanctions has no relevance to exercising appellate juris-
diction over a final judgment from a postjudgment contempt
proceeding.64 And the right of appeal from a postjudgment con-
tempt order does not depend upon whether the trial court has
made a final assessment of fines when coercive fines were the
civil sanction.65 It is true we have stated that “[c]ivil contempt
orders are treated as interlocutory . . . .”66 But like our holding
in Liles, that statement went too far because only civil con-
tempt orders issued before a final judgment in the main action
are interlocutory.
(ii) liles Was Incorrectly Decided
In Liles, the trial court had ordered the contemnor jailed for
refusing to testify at a show cause hearing for his past contempt
of an injunction. We had previously denied his habeas corpus
petition and were considering his motion for a stay of his jail
sentence pending his appeal. We denied the motion because
we concluded that a civil contempt order is not appealable.
We stated that “punitive sanctions are reviewable by appeal;
62 See Doyle, supra note 59, citing Bessette v. W. B. Conkey Co., 194 U.S.
324, 24 S. Ct. 665, 48 l. Ed. 997 (1904).
63 See, e.g., Berne Corp. v. Government of the Virgin Islands, 570 F.3d 130
(3d Cir. 2009); Autotech Techs. v. Integral Research & Development, 499
F.3d 737 (7th Cir. 2007); State of N.Y. v. Shore Realty Corp., 763 F.2d 49
(2d Cir. 1985); Shuffler v. Heritage Bank, 720 F.2d 1141 (9th Cir. 1983).
See, also, 15B Wright et al., supra note 60, § 3917.
64 See, e.g., Consumers Gas & Oil v. Farmland Industries, Inc., 84 F.3d 367
(10th Cir. 1996).
65 See, Shore Realty Corp., supra note 63; Shuffler, supra note 63.
66 See State ex rel. Kandt, supra note 7, 225 Neb. at 660, 407 N.W.2d at
750.
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whereas coercive sanctions can only be attacked collaterally by
habeas corpus.”67
But the rule we extracted from federal case law swept too
broadly. We failed to distinguish between interlocutory civil
contempt orders issued before the trial court’s final judgment
and a final contempt order imposed in a separate postjudgment
proceeding to enforce a previous final judgment. Contrary to
our decisions in earlier cases,68 we implied that a party could
never appeal a contempt order imposing a coercive sanction.
And, as noted, we have reviewed or rejected appeals in several
cases involving appeals from postjudgment contempt orders
based on whether the sanction was civil or criminal. But our
case law is inconsistent with federal rules because the rule we
set forth in Liles was too broad.
moreover, Liles created needless obstacles to appellate
review. Under our rule that civil contempt orders are non-
appealable, we have obviously rarely reviewed the correct-
ness of a trial court’s finding of contempt unless the trial
court has impermissibly imposed a criminal sanction in a
civil proceeding.69 And we have also held that the correct-
ness of the contempt order is moot if the party complies with
the purge plan to escape the coercive sanction of open-ended
incarceration.70 Finally, a habeas corpus proceeding is an illu-
sory substitute for an appeal in most cases. As we stated in
Smeal I, a habeas corpus proceeding applies only to persons
illegally detained.71 Habeas corpus generally does not apply to
a coercive fine sanction.72 And even when the contempt sanc-
tion is a coercive incarceration, attacking the order through
a habeas corpus proceeding will usually be futile.73 So, the
67 Liles, supra note 52, 216 Neb. at 534, 344 N.W.2d at 629.
68 See, McFarland, supra note 15; In re Havlik, 45 Neb. 747, 64 N.W. 234
(1895).
69 See, e.g., State ex rel. Reitz, supra note 57.
70 See McFarland, supra note 15.
71 Smeal I, supra note 1.
72 See State ex rel. Collins, supra note 53.
73 See Sileven v. Tesch, 212 Neb. 880, 326 N.W.2d 850 (1982).
682 	279 NEBRASkA REpoRTS

combination of these rules have unintentionally but effectively
choked off a contemnor’s right to appeal from a judgment of
civil contempt.
Additionally, we have created procedural knots by hinging
the right to appeal upon the character of the trial court’s sanc-
tion. For example, in a second appeal from a contempt order,
we held that a civil coercive sanction had changed to a criminal
sanction after the trial court assessed total fines.74 And we have
inconsistently characterized the same sanction in separate cases
as civil or criminal for exercising appellate jurisdiction and
reviewing the contempt order.75
In sum, hinging the right to appeal on a sanction’s charac-
terization has been a difficult rule to apply and at times incon-
sistent. more important, our rule has boxed contemnors into a
minefield. They either face continuing coercive sanctions or
risk a court’s determination that the issue is moot because they
complied with the purge plan. We conclude that our holding in
Liles that any civil contempt order is nonappealable was mani-
festly wrong. The rule is unworkable for final contempt orders
entered in a separate postjudgment proceeding to enforce a
previous final judgment.
[18] Although we agree with federal courts that final, post-
judgment contempt orders should be appealable, we disagree
with the characterization of these orders as “final judgments.”
We believe that this characterization is inconsistent with treat-
ing a civil contempt proceeding as supplemental to the main
action.76 Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), we
have stated that an order on “‘summary application in an action
after judgment’” is an order ruling on a postjudgment motion
in an action.77 We conclude that under Nebraska law, an order
of contempt in a postjudgment proceeding to enforce a previ-
ous final judgment is more properly classified as a final order;
74 See State ex rel. Kandt, supra note 7.
75 Compare Maddux, supra note 4, with Allen, supra note 53.
76 See, Leman, supra note 28; Gompers, supra note 16.
77 Heathman v. Kenney, 263 Neb. 966, 969, 644 N.W.2d 558, 561 (2002).
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the contempt order affects a substantial right, made upon a
summary application in an action after judgment.78
[19] For appeal purposes, we hold that the distinction
between criminal and civil contempt sanctions has no relevance
to whether a party may appeal from a final order in a supple-
mental postjudgment contempt proceeding.
We now overrule any cases that could be interpreted as hold-
ing that a final civil contempt order from a postjudgment pro-
ceeding is nonappealable and may only be attacked through a
habeas corpus proceeding. Specifically, we overrule Liles79 and
all the cases listed in footnote 53 to the extent that they hold
or imply that contemnors can never appeal from a final order
of civil contempt.
2. r.k.’S Failure to appeal F rom tHe C ourt’S order
C lariFyiNg tHe iNJuNCtioN doeS Not ForeCloSe
our revieW oF tHoSe F iNdiNgS
A provision of the injunction allowed R.k. to use “any com-
mercially available hydraulic control valves or valve spools.”
on remand from Smeal I, R.k. moved for an order granting
it permission to grind a commercially available valve spool.
In January 2008, after an evidentiary hearing, the district
court overruled that motion. It found that the valve spool R.k.
proposed to use would no longer be a commercially available
valve spool after R.k. modified it.
In its cross-appeal, SFAC argues that a party must seek
the court’s clarification if the party is in doubt of an ambig-
uous provision in an injunctive decree. SFAC focuses on our
statements in Kasparek80 and a 1981 case, Sprunk v. Ditter.81
There, we said that if a party is uncertain what a court
intended by its order, the party’s remedy is to seek further
advice and instructions from the trial court. And if a party acts
78 See Hendrix v. Consolidated Van Lines, Inc., 176 kan. 101, 269 p.2d 435
(1954).
79 Liles, supra note 52.
80 See Kasparek, supra note 9.
81 See Sprunk v. Ditter, 209 Neb. 156, 306 N.W.2d 850 (1981).
684 	279 NEBRASkA REpoRTS

on his own interpretation, he does so at his peril.82 So, SFAC
contends that the court’s clarification order was a final order
affecting a substantial right. Because R.k. failed to appeal
the order, SFAC claims those findings became the law of the
case and are not subject to review by this court in this appeal.
We disagree.
[20-22] 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.83 on appeal,
however, the law-of-the-case doctrine is a rule of discretion,
not jurisdiction.84 And the doctrine requires a final order. A
party is not bound by a court’s findings in an order that it was
not required to appeal.85
our statement in Kasparek that a party should seek a clarifi-
cation of an unclear injunctive decree mirrors a statement made
by the U.S. Supreme Court. In McComb v. Jacksonville Paper
Co.,86 the Court framed the issue as follows: “Respondents
could have petitioned the District Court for a modification,
clarification or construction of the order. . . . But respondents
did not take that course either. They undertook to make their
own determination of what the decree meant. They knew they
acted at their peril.” In holding that courts have jurisdiction
to interpret their own injunctions, the Court has reasoned
that courts of equity have continuing jurisdiction to interpret
their orders.87
[23] This court has similarly stated that district courts
have equity power under the Nebraska Constitution to grant
82 See id., quoting Kasparek, supra note 9.
83 County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376
(2008).
84 See Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
85 See United States v. U. S. Smelting Co., 339 U.S. 186, 70 S. Ct. 537, 94 l.
Ed. 750 (1950).
86 McComb, supra note 38, 336 U.S. at 192. See, also, Regal Knitwear Co. v.
Board, 324 U.S. 9, 65 S. Ct. 478, 89 l. Ed. 661 (1945).
87 See Travelers Indemnity Co. v. Bailey, 557 U.S. 137, 129 S. Ct. 2195, 174
l. Ed. 2d 99 (2009), citing Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.
Ct. 695, 78 l. Ed. 1230 (1934).
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permanent injunctions. And that power cannot be abridged by
statute.88 A district court’s constitutional equity power enables
a court to have continuing jurisdiction in any succeeding term
over a permanent injunction.89
It is true that we have previously held that a party to a final
marital dissolution decree cannot ask a court to interpret the
decree other than through a modification or a contempt pro-
ceeding.90 But the decree at issue in the marital dissolution
case failed to distribute some of the parties’ marital property.91
Here, however, we are not dealing with a material omission in
the injunctive decree—the correction of which would require a
modification. Instead, R.k. sought a clarification of the court’s
injunctive decree.
[24,25] In sum, we agree with federal courts that a court of
equity has the power to interpret its own injunctive decree if a
party later claims that a provision is unclear.92 But permitting
a party to seek clarification of an injunction is not the same
as requiring a party to do so. Instead, the critical question
for appeal purposes is whether the clarification order merely
interprets the decree or whether it modifies the decree in a
way that affects a party’s substantial right. We find guidance in
federal cases.
A federal statute permits parties to appeal from interlocu-
tory orders modifying an injunction or denying a modifica-
tion.93 But federal courts do not permit parties to appeal from
orders interpreting or clarifying an injunction.94 They have
distinguished modifications and clarifications by looking to
the substantive effect of the order instead of the parties’ or
88 Lowe, supra note 28.
89 See id.
90 See Neujahr, supra note 49, 223 Neb. 722, 393 N.W.2d 47 (1986).
91 See id.
92 See, McComb, supra note 38; Regal Knitwear Co., supra note 86.
93 See 28 U.S.C. § 1292(a)(1) (2006).
94 See, e.g., Mikel v. Gourley, 951 F.2d 166 (8th Cir. 1991); Motorola, Inc.
v. Computer Displays Intern., 739 F.2d 1149 (7th Cir. 1984); 16 Charles
Alan Wright et al., Federal practice and procedure § 3924.2 (2d ed. 1996
& Supp. 2009).
686 	279 NEBRASkA REpoRTS

court’s characterization. Several federal appellate courts have
adopted a version of the following test: If the order only
restates the parties’ legal relationship without changing the
original relationship, relaxing any prohibitions, or imposing
any new obligations, it is a mere interpretation that cannot
be appealed.95
[26] Nebraska does not have a comparable interlocutory
appeal statute. But we have stated that a court cannot, in inter-
preting an injunctive decree, expand the terms of a previous
order or judgment beyond a reasonable interpretation in the
light of its purpose.96 So, we believe that whether an order
implementing or interpreting an injunction alters the parties’
relationship is also a valid test for determining whether the
order affects a substantial right under § 25-1902. Therefore, we
hold that a court’s order clarifying a permanent injunction is a
final order only if it changes the parties’ legal relationship by
expanding or relaxing the terms, dissolving the injunction, or
granting additional injunctive relief.
R.k. asked the court to determine whether the injunction
permitted its proposed grinding of a commercial valve spool.
The court’s order clarified that the injunction prohibited R.k.’s
proposed modification. SFAC obviously does not claim that
the order overruling R.k.’s request to modify a commercially
available valve spool expanded the decree’s terms in a way
that granted additional injunctive relief to SFAC. We conclude
that R.k.’s failure to appeal from the January 2008 order does
not foreclose review of the court’s later findings in the con-
tempt proceeding.
3. diStriCt C ourt erred iN F iNdiNg r.k. WillFully
violated tHe permaNeNt iNJuNCtioN
Having disposed of the jurisdictional issues and the law-of-
the-case doctrine, we come to the merits of R.k.’s appeal. R.k.
95 See, e.g., Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 477 F.3d 1151
(10th Cir. 2007); Cunningham v. David Special Commitment Center, 158
F.3d 1035 (9th Cir. 1998); Mikel, supra note 94; Sierra Club v. Marsh, 907
F.2d 210 (1st Cir. 1990); Combs v. Ryan’s Coal Co., Inc., 785 F.2d 970
(11th Cir. 1986); Motorola, Inc., supra note 94.
96 See Smeal I, supra note 1.
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	687
Cite as 279 Neb. 661

contends that the district court erred in finding that SFAC had
proved beyond a reasonable doubt that R.k. willfully violated
the injunction. R.k. argues that it modified the part of its valve
spool that opens the pressure side of the control valve, not
the part that opens the tank side; R.k. contends that injunc-
tion did not prohibit it from modifying the pressure side of its
valve spools.
(a) Additional Facts
As we will explain later, we conclude that the key terms
in the injunction were ambiguous as to whether they prohib-
ited R.k.’s conduct complained of in the contempt proceed-
ings. Understanding that ambiguity and what the injunction
was intended to prohibit requires that we delve into an aerial
ladder’s hydraulic systems.
(i) Hydraulic Basics
As noted, SFAC’s disputed trade secret involves a hydraulic
valve spool. SFAC and R.k. use hydraulic systems to move
their aerial ladders. oversimplified, the hydraulic systems cre-
ate power to move the ladders by moving hydraulic fluid
through a control valve. The control valves have four openings
called ports. A pump moves pressurized hydraulic fluid—in
this case oil—from a reservoir tank through a line connected
to the valve’s pressure port. The valve directs the pressurized
fluid to a work port, A or B. Both work ports have lines con-
nected to a hydraulic cylinder that controls a particular ladder
movement. In a hoist cylinder system, for example, if the fluid
in the valve is directed to the A work port, it will pass through
a line to the part of the cylinder that pushes the fluid against
a piston in a way that raises the ladder and holds it up. At the
same time, fluid is returning to the valve through the line con-
nected to the B work port. That fluid is directed to the tank
port of the valve, which has a return line to the reservoir tank.
The returning fluid is redirected to the control valve, creating
a circuitry.
The flow in the valve is controlled by a hydraulic valve
spool, which is a movable, cylinder part in the valve. The valve
spools are machined so that depending on how they are moved,
they open the pressure and tank ports and direct the flow of
688 	279 NEBRASkA REpoRTS

hydraulic fluid to the A or B work ports. As we understand the
parties’ testimony and briefs, they have referred to the part of
a valve spool that opens the pressure side (or pump side) of
the control valve as the corresponding “pump side” or “pres-
sure side” of the valve spool. And they have referred to the
part of the valve spool that opens the tank side of the valve as
the “tank side” or “return side” of the valve spool. For conve-
nience, we shall also refer to the pressure side and tank side of
the valve spool to mean the part of the valve spool that opens
the corresponding pressure or tank port of the valve.
A common problem with hydraulic systems is pressure
surges, which occur because there is a burst of fluid through
the system when the valve is opened. The surge creates oscil-
lations in the system until the pressure settles back into a
constant pressure. In aerial ladders, the oscillations transfer to
the ladder, causing jerky movements and making control of the
ladder difficult. While kreikemeier worked for SFAC, SFAC
developed a modification for its valve spools to dissipate these
pressure surges.
With that background, we are asked to decide whether the
court correctly found that R.k.’s 1996 modification of the pres-
sure side of its commercially available valve spools violated
the 1990 injunction.
(ii) Prohibited Conduct Under
the Injunctions
Both the 1989 preliminary injunction and the 1990 per-
manent injunction prohibited R.k. from disclosing or using
a “surge free control valve created by grinding or milling the
valve spool so as to create an unbalanced control spool which
converts the tank side of a hydraulic cylinder to a fluid damper
which dissipates pressure surges.”
[27,28] In determining whether a party is in contempt of
an order, a court may not expand an earlier order’s prohibi-
tory or mandatory language beyond a reasonable interpretation
considering the purposes for which the order was entered.97
We recognize that contract principles generally apply to the
97 See Smeal I, supra note 1.
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	689
Cite as 279 Neb. 661

enforcement of consent decrees. And these principles prohibit
a court from considering extrinsic evidence of the decree’s
meaning absent some ambiguity.98 But here, both parties dis-
puted the meaning of key technical terms in the injunction:
“unbalanced control spool” and “fluid damper.” Because of
their different definitions of these terms, they argued that the
injunction prohibited different conduct. The Court of Appeals,
in a 2004 unpublished opinion involving these parties, deter-
mined that both of these terms were ambiguous as a matter of
law. It stated that the terms could be fairly interpreted in more
than one way.99 We agree, as we will discuss further in the
analysis section. Because of this ambiguity, the district court
on remand from Smeal I100 judicially noticed the testimony of
SFAC’s hydraulic expert at the preliminary injunction hearing,
the expert’s 2002 deposition, and the transcript of the prelimi-
nary injunction hearing. We similarly conclude that reviewing
the previous injunction proceedings is crucial to understanding
the injunction’s purpose.
(iii) 1989 Preliminary Injunction Hearing
In February 1989, the court heard the preliminary injunction.
This was 8 months after kreikemeier signed a contract to build
aerial ladders for another manufacturer referred to in the record
as “maxim,” one of SFAC’s competitors.
Delwin Smeal testified that as SFAC incorporated other
components into its hydraulic system, Smeal realized that
SFAC needed to modify its valve spool to deal with jerkiness
in the ladder’s operation. In 1977, after considerable trial and
error, he discovered how to mill a valve spool to get a smoother
hydraulic operation for SFAC’s aerial ladders. About 1983, the
98 See, e.g., United States v. ITT Continental Baking Co., 420 U.S. 223, 95
S. Ct. 926, 43 l. Ed. 2d 148 (1975); U.S. v. Saccoccia, 433 F.3d 19 (1st
Cir. 2005); U.S. v. Asarco Inc., 430 F.3d 972 (9th Cir. 2005); McDowell v.
Philadelphia Housing Authority (PHA), 423 F.3d 233 (3d Cir. 2005).
99 See Smeal Fire Apparatus Co. v. Kreikemeier, No. A-03-116, 2004
Wl 2434884 (Neb. App. Nov. 2, 2004) (not designated for permanent
publication).
100 Smeal I, supra note 1.
690 	279 NEBRASkA REpoRTS

modification process was refined, using commercially available
valve spools.
kreikemeier started working at SFAC in 1977. Smeal stated
that kreikemeier began working on SFAC’s aerial ladder
hydraulics in 1982 and that he taught kreikemeier how to mill
SFAC’s valve spools. In 1984, SFAC began selling its ladders
to pierce manufacturing Company (pierce), a company that
produced finished firetrucks but did not manufacture aerial lad-
ders. At some point, maxim also asked SFAC to sell its aerial
ladders to maxim. Because maxim was a competitor, SFAC
declined. SFAC suspected that maxim wanted only to “reverse
engineer” SFAC’s ladder, causing SFAC to lose its competi-
tive advantage. After SFAC declined this offer, a representative
from maxim contacted kreikemeier about him either working
for maxim or building ladders for maxim. The maxim repre-
sentative had previously worked for pierce and had become
familiar with kreikemeier during that time. At some point,
kreikemeier told maxim that he was not interested in working
for it; he stated that he wanted to start his own company. When
he did not break off his negotiations with maxim, SFAC termi-
nated his employment in may 1988. In June 1988, kreikemeier
signed a contract to build aerial ladders for maxim.
kreikemeier knew SFAC’s entire manufacturing process
because he had been the assistant manager of the aerial ladder
division before SFAC terminated his employment. Before leav-
ing SFAC, kreikemeier admitted to Smeal that he planned to
use SFAC’s hydraulic system.
kreikemeier admitted that when he left SFAC, he took cop-
ies of SFAC’s plans, structural designs, and everything writ-
ten down on paper about SFAC’s ladder, including SFAC’s
modification of its valve spools. He stated that he did not take
the documents to duplicate SFAC’s ladder but admitted that
he referred to them in designing his ladder. He also admitted
that he did not produce the SFAC documents in response to
the court’s document production order. And he burned SFAC’s
documents just before the preliminary injunction hearing. He
specifically admitted to using SFAC’s grinding method to
modify the valve spools in the hydraulic valves for R.k.’s out-
rigger jacks, which stabilize the truck when the aerial ladder is
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	691
Cite as 279 Neb. 661

in use. But the evidence did not show that R.k. was grinding
the valve spools in its hydraulic system for raising or lowering
an aerial ladder.
Smeal testified that SFAC’s trade secret was multifaceted.
He was asked whether his modification of the valve spool rep-
resented all of the confidential information and trade secrets
that SFAC possessed regarding its aerial ladders. He denied
that characterization. Smeal stated that SFAC also added com-
ponents to the lines between the valve and the cylinder and that
neither the external components nor the valve spool modifica-
tion would work unless they were coordinated. But he admit-
ted that the external components were commercially available
and that SFAC did not make any changes to the control valve
other than to modify the valve spool. He stated that SFAC cut
its valve spools to advance the flow from the pressure line
to the work port and from the work port to the tank line. He
also stated that SFAC dissipated “unwanted build-up pressure
inbetween . . . valves and cylinders . . . [b]y cutting the spool.”
But Smeal did not identify any specific cuts or modifications
that SFAC made to its valve spools.
The only witness to identify SFAC’s valve spool modifica-
tion was its hydraulic expert, Wayne Whaley, ph.D. Whaley
believed that SFAC’s valve spool modification was unique
and superior to other methods for dissipating pressure surges
because it permitted the pressure in the valve to remain con-
stant, relative to the flow of the fluid and the position of the
valve spool. He stated that SFAC had achieved constant pres-
sure by effectively creating a fluid damper on both lines lead-
ing to the cylinder.
According to Whaley, SFAC had created its constant pres-
sure circuitry system out of standard hydraulic components.
He explained that SFAC had done this by “creating an orifice
opening in the region of the tank spool”: i.e., by modifying
“the portion of the valve spooling that returns fluids back to
the tank.” more important to our resolution, he stated that the
only cuts SFAC made were on “that part of the spool where the
flow returns to the tank” and that the pressure side of its valve
spool was not changed.
692 	279 NEBRASkA REpoRTS

Whaley explained that this unbalanced modification con-
verted the tank side of the cylinder into a fluid damper “by
creating this small orifice that begins to open before the pres-
sure side, the pump side of the flow goes to the other side of
the cylinder.” or, as he explained in a 2002 deposition, the tank
side of the control valve is opened a little before the pressure
side is opened to leak out some of the fluid. This modification
greatly minimized the pressure surges that go through the sys-
tem when a valve opens or closes.
Using the information that Smeal gave him, Whaley also
created a diagram of SFAC’s valve with the spool modifica-
tion. Whaley had never seen a valve like SFAC’s before, and he
believed it was patentable. Whaley titled the diagram “An Ideal
linear Control Valve.” In response to the court’s questions,
Whaley specifically stated that this diagram showed SFAC’s
spool alteration. He stated that all hydraulic valve spools were
capable of being modified in this manner and that the modifi-
cation could be easily done by any skilled craftsman who knew
the secret: how to modify the tank side of the valve spool to
create a fluid damper. (As noted, the focus of the trade secret in
Whaley’s testimony was an orifice on the tank side of the valve
spool that leaked fluid back to the reservoir tank.)
The court received into evidence a document providing
Whaley’s opinion of SFAC’s trade secret as illustrated by his
diagram. In the document, he stated that SFAC
has clearly invented a new surge-free control valve not
available from any other source and not known in the
fluid power control industry. [SFAC’s] surge-free valve
utilizes an unbalanced control spool which converts the
tank side of a hydraulic cylinder to a fluid damper which
dissipates pressure surges.
(Emphasis supplied.) He further stated that SFAC’s “surge-free
control valve in combination with any compensation circuit
may also be a trade secret.” But he stated that he would need to
do more patent research before making that conclusion.
In march 1989, the court issued the preliminary injunc-
tion. The court incorporated Whaley’s above description of
SFAC’s trade secret as the manufacturing process that R.k.
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	693
Cite as 279 Neb. 661

was prohibited from revealing or using. There were no fur-
ther hearings.
In June 1990, the court issued a permanent injunction upon
the parties’ settlement agreement. It is true that Smeal had tes-
tified that SFAC cut its valve spool to advance flow from the
pressure port to the work port and from the work port to the
tank port. But the agreed-upon injunction did not prohibit R.k.
from modifying its valve spools on the pressure side or from
modifying its valve spools to increase flow from the pressure
port to the work port. Instead, the permanent injunction’s pro-
hibition was identical to the preliminary injunction. It prohib-
ited R.k. from using an unbalanced control spool to convert the
tank side of a hydraulic cylinder to a fluid damper to dissipate
pressure surges.
(iv) 2002 Contempt Proceedings
The evidence at the first contempt proceeding established
that in 1996, R.k. began making the modification to its valve
spools to correct oscillation problems in the lowering of its
ladder. To correct the problem, R.k. removed metal in two
places from the pressure side of its valve spools that con-
trolled a ladder’s up-and-down motion. Smeal testified that
R.k.’s modification of its valve spools was the same as the
modification that SFAC made to the pressure side of its valve
spools to avoid these oscillations. He stated that SFAC was
grinding its valve spools in this manner while kreikemeier
worked at SFAC and that kreikemeier had sketched the way
SFAC modified its valve spools while working there. But the
modification that SFAC made to the pressure side of its valve
spools addressed a different problem and had a different effect
than the modification that it made to the tank side of the
spool. Smeal stated that when the ladder was moving down,
unless the pressure side was modified to increase the volume
of oil flowing into the work port, opening the tank port would
cause a pressure drop that created a “shock wave” and pro-
duced oscillations.
Smeal admitted that R.k.’s commercially available valve
spool would slightly open the tank port of the valve before
opening the pressure port without any modification. He admitted
694 	279 NEBRASkA REpoRTS

that R.k. removed metal from only the pressure side of its
valve spools and not the tank side. Smeal also admitted that
Whaley had prepared the language that described Smeal’s trade
secret, which language was in both the preliminary and the
permanent injunction. And he admitted that the injunction was
a description of the trade secret Smeal was trying to protect
in 1989.
But Smeal denied that valve spools which slightly opened
the tank port before the pressure port were “unbalanced,” as
defined in the injunction. Instead, he defined “unbalanced” to
mean that the valve spool would allow a higher volume of oil
to flow in through the pressure port than the returning fluid
that flowed out of the valve. And he stated that this unbal-
anced flow used the tank side of the hydraulic cylinder as a
fluid damper.
Smeal also denied that exhibit 43, which was Whaley’s dia-
gram from the preliminary injunction hearing, represented any
part of SFAC’s trade secret that was protected by the injunc-
tion. He stated that Whaley was “mixed up” about SFAC’s
trade secret and that no diagram or picture at the preliminary
injunction reflected SFAC’s trade secret. The court sustained a
relevancy objection to exhibit 43.
After the hearings, the court also sustained relevancy and
hearsay objections to exhibit 54, which was the transcript of
the 1989 preliminary injunction hearing. And it sustained a
relevancy objection to exhibit 53, which was a 2002 deposi-
tion of Whaley. The court stated that Whaley’s testimony was
based on exhibit 43, his diagram, which was irrelevant. So it
concluded that Whaley’s testimony based on his diagram did
not assist the court in understanding the evidence or deter-
mining the facts at issue. In sum, the court refused to look
at any evidence from the preliminary injunction hearing or
Whaley’s 2002 deposition. As noted, however, the Court of
Appeals later determined that key terms in the injunction
were ambiguous.
In June 2002, the court found R.k. was willfully in con-
tempt of the permanent injunction. In reaching this conclusion,
the court concluded that the injunction was unambiguous,
but the court defined two terms of the injunction. It defined
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	695
Cite as 279 Neb. 661

an “unbalanced spool” as a valve spool that allows hydraulic
fluid to flow at an uneven rate or different rate of flow through
either port. It defined a “fluid damper” as an “orifice or meter-
ing notch.”
The court stated that kreikemeier had admitted that since
1996, R.k. had been grinding its valve spools on the pressure
side to allow the hydraulic fluid to flow through the pressure
port before the fluid could exit the tank port. It concluded
that whether the injunction protected Smeal’s trade secret
was irrelevant to whether R.k. had violated the injunction.
It found that R.k.’s grinding of its valve spools violated the
injunction because it resulted in the surge-free control valve
that was prohibited by the injunction. It further found that
R.k.’s violation was willful and intentional, with knowledge
that its acts violated the injunction. This order was the subject
of Smeal I, but we did not reach the substantive merits of the
court’s order.
(v) R.K.’s 2008 Motion for Permission to Modify
a Commercially Available Valve Spool
We issued our decision in Smeal I in may 2006.101 In June,
R.k. moved to dismiss the contempt action or to reopen the
case for additional evidence. It relied on the Court of Appeals’
opinion that key terms in the injunction were ambiguous as a
matter of law. In September, R.k. filed a new motion for per-
mission to modify a commercially available valve spool in a
manner that would allow the pressure port to open before the
tank port when the ladder was moving down. R.k. contended
that its grinding would duplicate a commercially available
valve spool.
At the hearings on the motion for permission to modify
a commercially available valve spool, the court took judi-
cial notice of Whaley’s testimony from the 1989 preliminary
injunction hearing; his 2002 deposition, taken between hear-
ings in the 2002 contempt proceeding; and the transcript of
the preliminary injunction hearing. The court stated that it was
taking notice of this evidence because the Court of Appeals had
101 See Smeal I, supra note 1.
696 	279 NEBRASkA REpoRTS

concluded that the terms “unbalanced control spool” and “fluid
damper” were ambiguous.
In Whaley’s 2002 deposition, exhibit 53, he was asked about
the diagram of an ideal control valve admitted at the prelimi-
nary injunction hearing. He reiterated his testimony from that
hearing that SFAC created a fluid damper to dissipate power
surges in its valve by grinding the tank side of its valve spool to
make an orifice that gradually opened to the tank port. Whaley
stated that the term “fluid damper” in his written explanation
of SFAC’s trade secret referred to the modification that opened
the tank side of the valve first, thus permitting hydraulic oil to
flow to the tank side first. And he stated that the term “unbal-
anced” referred to the timing difference between the tank side
opening before the pressure side. He specifically stated that his
description did not refer to a modification that caused the pres-
sure port to open first.
After the hearing, the court found Smeal’s evidence more
credible and concluded that R.k. would not be using a com-
mercially available spool if it permitted R.k.’s request to
modify the spool.
(vi) Interpretation of This Court’s Mandate
In April 2008, SFAC moved for a new contempt order with
coercive sanctions consistent with this court’s mandate and for
attorney fees and costs. In Smeal I, we vacated “those aspects
of the district court’s order affording equitable relief to [SFAC
and] the award of attorney fees and costs.”102 We did not vacate
the court’s finding of contempt.
In may 2008, the court heard arguments on SFAC’s con-
tempt motion and R.k.’s motion to dismiss the contempt action
or to reopen it. In response to R.k.’s motion, the court received
all of the evidence that it had received at the hearing on R.k.’s
permission to modify a commercially available valve spool.
But it stated that because it no longer considered the terms
of the injunction to be ambiguous, “the way is clear to enter
the contempt order in this case.” It interpreted our mandate in
Smeal I as requiring it to reimpose a purge plan and directed
102 Smeal I, supra note 1, 271 Neb. at 627, 715 N.W.2d at 144.
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	697
Cite as 279 Neb. 661

counsel for SFAC to prepare a new contempt order. The only
remaining issue was attorney fees.
(vii) 2008 Contempt Order
In November 2008, the court issued a new contempt order. It
stated that it had reviewed all of the evidence it had received at
the motion for permission to modify a commercially available
valve spool. It again stated that this court’s mandate required
it to impose a purge plan that did not grant equitable relief to
Smeal. It explicitly adopted its findings from its order on the
above motion. It stated that
since the manner by which [R.k.] sought to grind the
valve spool . . . used as an exemplar a valve spool ground
in a manner that [was earlier] found to be in violation of
the injunction, with the benefit of the prior rulings and
the evidence and the testimony of January 2008, this court
reaffirms [the first] finding of contempt.
To purge R.k.’s contempt, the court required R.k. to take
steps to ensure its compliance. It required R.k. to hold a
company meeting within 10 days. At the meeting, R.k. was
required to present the court’s order prohibiting the requested
manufacturing process, as exemplified by exhibit 210, to the
following people: current and future employees, officers, man-
agers, stockholders, partners, and manufacturing agents. Exhibit
210 depicted R.k.’s modified valve spool.
(b) Standard of Review
[29-31] An appellate court, reviewing a final judgment or
order in a contempt proceeding, reviews for errors appearing
on the record.103 When reviewing a judgment for errors appear-
ing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.104 A trial court’s factual
finding in a contempt proceeding will be upheld on appeal
unless the finding is clearly erroneous.105
103 Schwartz v. Schwartz, 275 Neb. 492, 747 N.W.2d 400 (2008).
104 Id.
105 Douglas Cty. v. Kowal, 270 Neb. 982, 708 N.W.2d 668 (2006).
698 	279 NEBRASkA REpoRTS

(c) Analysis
R.k. contends that the court ignored Whaley’s testimony at
the preliminary injunction and in his 2002 deposition. It further
argues that the court erred when it failed to find that exhibit 43,
which was Whaley’s diagram, correctly depicted SFAC’s trade
secret protected by the court’s permanent injunction.
[32,33] When a party to an action fails to comply with a
court order made for the benefit of the opposing party, such
act is ordinarily a civil contempt, which requires willful dis-
obedience as an essential element.106 “Willful” means the vio-
lation was committed intentionally, with knowledge that the
act violated the court order.107 Under current Nebraska law, a
party seeking to hold another in contempt of an order has the
heavy burden of establishing that contempt beyond a reason-
able doubt.108
The question at the contempt proceeding was not whether
R.k. pirated SFAC’s trade secrets. The question was whether
R.k.’s alleged use of SFAC’s trade secrets violated the parties’
agreed-upon injunction order. Before proceeding to our analy-
sis, we set forth some general principles that are helpful to the
resolution of this appeal.
[34,35] “Since an injunctive order prohibits conduct under
threat of judicial punishment, basic fairness requires that those
enjoined receive explicit notice of precisely what conduct is
outlawed.”109 “The judicial contempt power is a potent weapon.
When it is founded upon a decree too vague to be understood,
it can be a deadly one. . . . [T]hose who must obey them will
know what the court intends to require and what it means to
forbid.”110 Understood in light of these principles, the “‘four
106 Schwartz, supra note 103.
107 Id.
108 See id.
109 Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 38 l. Ed. 2d 661
(1974). Accord, Longshoremen v. Marine Trade Assn., 389 U.S. 64, 88 S.
Ct. 201, 19 l. Ed. 2d 236 (1967); Project B.A.S.I.C. v. Kemp, 947 F.2d 11
(1st Cir. 1991). See, also, 11A Charles Alan Wright et al., Federal practice
and procedure § 2955 (2d ed. 1995).
110 Longshoremen, supra note 109, 389 U.S. at 76.
SmEAl FIRE AppARATUS Co. v. kREIkEmEIER 	699
Cite as 279 Neb. 661

corners’” rule for interpreting consent decrees is intended to
narrowly cabin the circumstances in which contempt may be
found.111 “It is because ‘[t]he consequences that attend the
violation of a court order are potentially dire,’ . . . ‘that courts
must “read court decrees to mean rather precisely what they
say.”’”112 So a court cannot hold a person or party in contempt
unless the order or consent decree gave clear warning that the
conduct in question was required or proscribed.113
[36] But injunctions protecting trade secrets may justify
less specificity than other orders or decrees to avoid disclos-
ing the plaintiff’s trade secret.114 For this reason, injunctions
protecting trade secrets that raise ambiguities involving techni-
cal or scientific knowledge may require courts to review the
context in which the injunction was entered. This allows the
court to determine what conduct the defendant reasonably
should have known was prohibited. Even in that circumstance,
however, ambiguities that persist even when considered in the
light of the record or after applying other aids of interpreta-
tion must be construed in favor of the person or party charged
with contempt.115
We interpret the court’s contempt order on remand to mean
that the court concluded that it was not required to consider
anew whether R.k.’s grinding of its valve spools violated the
injunction. The court did not make any specific findings of
fact. And although it judicially noticed the preliminary injunc-
tion and Whaley’s deposition, it did not define the ambiguous
111 Saccoccia, supra note 98, 433 F.3d at 28.
112 Id. (citations omitted).
113 See, e.g., Romero v. Drummond Co., Inc., 480 F.3d 1234 (11th Cir. 2007);
Perez v. Danbury Hosp., 347 F.3d 419 (2d Cir. 2003); Gates v. Shinn,
98 F.3d 463 (9th Cir. 1996); F.D.I.C. v. Conner, 20 F.3d 1376 (5th Cir.
1994).
114 See 3M v. Pribyl, 259 F.3d 587 (7th Cir. 2001).
115 See, e.g., U.S. v. Conces, 507 F.3d 1028 (6th Cir. 2007); Saccoccia, supra
note 98; U.S. v. Voss, 82 F.3d 1521 (10th Cir. 1996); In re Marcus, 138
Cal. App. 4th 1009, 41 Cal. Rptr. 3d 861 (2006); Chesapeake v. City of
Baltimore, 89 md. App. 54, 597 A.2d 503 (1991); Mtr Holtzman v Beatty,
97 A.D.2d 79, 468 N.Y.S.2d 905 (1983); Marian Shop, Inc. v. Baird, 448
pa. Super. 52, 670 A.2d 671 (1996).
700 	279 NEBRASkA REpoRTS

terms of the injunction. Its earlier finding that R.k.’s proposed
grinding would not result in a commercially available valve
spool did not clarify matters.
The injunction was prohibitory, not mandatory. That is, the
injunction specifically excluded from its prohibition R.k.’s
use of any commercially available valve spool. That exclusion
obviously did not mandate that R.k. use only commercially
available valve spools. Instead, the injunction enjoined R.k.
from using a “surge free control valve created by grinding or
milling the valve spool so as to create an unbalanced control
spool which converts the tank side of a hydraulic cylinder to a
fluid damper which dissipates pressure surges.” (Emphasis sup-
plied.) It did not enjoin R.k. from modifying commercial valve
spools in any manner.
But the court in its 2008 order did not find that R.k.’s pro-
posed grinding of a valve spool would result in an unbalanced
control spool which converted the tank side of a hydraulic
cylinder to a fluid damper to dissipate pressure surges. Instead,
the court seems to have deferred to the earlier 2002 contempt
order. But the 2002 contempt order is similarly flawed because
the court refused to review the record of the preliminary injunc-
tion hearing to clarify ambiguities in the injunction.
Despite SFAC’s claim that the injunction prohibited R.k.
from modifying the pressure side of the valve spool, the
injunction’s language referred to converting the “tank side of
a hydraulic cylinder” to a fluid damper. (Emphasis supplied.)
In the face of R.k.’s claim that the injunction was not intended
to apply to the modification to the pressure side of the valve
spool, the inconsistency between SFAC’s interpretation and the
injunction was sufficient to create an ambiguity. So, during
the first contempt proceeding, the court erred in concluding
that the record from the preliminary injunction hearing was
irrelevant. Had the court consulted that record, the ambiguity
would have been resolved in R.k.’s favor.
The permanent injunction represented the parties’ settlement
agreement. And the record shows that they clearly agreed to
prohibit R.k. from using SFAC’s trade secret as described by
Whaley. Whaley’s description of using a valve spool to convert
the tank side of a hydraulic cylinder into a fluid damper was
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unequivocally explained as making cuts on the tank side of
the valve spool, with no modification to the pressure side of
the valve spool. He specifically stated that SFAC’s grinding
permitted the tank side to open before the pressure side to dis-
sipate pressure surges.
What SFAC has tried to do is to make R.k.’s grinding on
the pressure side of its valve spool fit the language of the
injunction. It doesn’t fit. We recognize that the record shows
that Smeal considered SFAC’s trade secret to be more than
Whaley’s description, and he later denied that Whaley’s dia-
gram of SFAC’s trade secret had depicted any part of SFAC’s
trade secret. But the issue in a contempt proceeding is what
conduct is clearly prohibited by the injunction. Nothing in the
injunction clearly prohibited R.k. from modifying the pressure
side of the valve spool. And SFAC was obviously aware of
the conduct to which Whaley’s language from the preliminary
injunction referred.
SFAC’s change of position at the contempt proceeding about
the meaning of Whaley’s language is precisely what a court
may not permit. Even if SFAC’s interpretation were plausible,
the court was not free to consider its arguments in a vacuum.
Unless a court construes an injunction’s terms closely to its
intended purpose, complainants could create endless arguments
for a party’s violation of an injunction. Contempt sanctions
cannot be premised upon a moving target. We conclude that the
district court erred in finding that SFAC had proved beyond a
reasonable doubt that R.k.’s grinding on the pressure side of its
hydraulic valve spools was prohibited by the injunction.
4. attorNey F eeS
[37] In its cross-appeal, SFAC argues that the court erred
in failing to award it the full amount of its requested attorney
fees and expenses. Costs, including reasonable attorney fees,
can be awarded in a contempt proceeding.116 But an award
of attorney fees requires a finding of contempt.117 We have
116 Smeal I, supra note 1.
117 See Kasparek, supra note 9.
702 	279 NEBRASkA REpoRTS

held that the court erred in finding R.k. willfully violated the
injunction. It follows that its award of attorney fees and costs
must be vacated.
5. proSpeCtive StaNdard oF prooF For SHoWiNg C ivil
C oNtempt iS C lear aNd C oNviNCiNg evideNCe
Having overhauled our contempt jurisprudence, we believe
that we should take a closer look at our present “beyond a
reasonable doubt” standard of proof in civil contempt cases.
This standard of proof dates back to our cases holding that
all contempt proceedings are criminal in nature and governed
by rules applicable to criminal prosecutions.118 Unfortunately,
some of these opinions ignored an earlier decision in which we
had tried to reconcile the inconsistency in our case law and the
case law of other states.
In Maryott v. State,119 we stated that indirect contempts—dis-
obedience committed outside of the court’s presence—can be
either criminal or civil. We recognized that contempt proceed-
ings have both punitive and coercive aspects, but we stated:
“Where a party to an action fails to obey an order of the court,
made for the benefit of the opposing party, the rule is well
recognized that such act is, ordinarily, a mere civil contempt,
and the rules applicable to a criminal contempt are not appli-
cable.”120 Accordingly, we rejected the contemnor’s argument
that the State must file an information to commence a contempt
proceeding and held that the party injured by the contempt can
commence a civil contempt proceeding by affidavit.
later, we clarified that sanctions of fines or incarceration are
criminal only if they (1) are intended to vindicate the court’s
authority and punish a contemnor for a completed act of dis-
obedience and (2) cannot be mitigated by complying with the
court’s order.121
118 See, e.g., Whipple v. Nelson, 138 Neb. 514, 293 N.W. 382 (1940).
119 Maryott, supra note 15.
120 Id. at 277, 246 N.W. at 344.
121 See McFarland, supra note 15. Compare State ex rel. Collins, supra note
53.
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In 1975, following U.S. Supreme Court precedent, we held
that a jury trial is not required before a court can com-
mit a contemnor for civil contempt or punish petty criminal
contempts summarily, when the punishment is not excessive.122
The Nebraska Court of Appeals has explained that a jury
trial with criminal protections is required only when a court
commits a defendant for direct contempts if the cumulative
incarceration period exceeds 6 months.123 In 1980, we held
that double jeopardy has no application to civil contempt pro-
ceedings to enforce child support obligations.124 And in Grady
v. Grady,125 a 1981 case, we stated that “an action to enforce a
court order is normally a mere civil contempt and requires the
appropriate standard of proof applicable thereto instead of the
stricter ‘proof beyond a reasonable doubt’ standard applied to
criminal contempts.”
But we did not overrule cases applying the stricter standard
of proof in Grady, and our rule requiring proof beyond a rea-
sonable doubt in civil contempt proceedings persisted. In 1984,
without discussing Grady, we again held in a civil contempt
case that guilt must be established beyond a reasonable doubt.126
In 1987, we cited California cases to support the “beyond a
reasonable doubt” standard of proof in civil contempt proceed-
ings: “The requirement of proof beyond a reasonable doubt is
justified in contempt cases because of the penalties that may be
imposed.”127 And in 1994, also without discussing Grady, we
reversed in part a Court of Appeals’ opinion relying on Grady
122 See Village of Springfield v. Hevelone, 195 Neb. 37, 236 N.W.2d 811
(1975), citing Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 l. Ed. 2d
522 (1968).
123 See State v. Harker, 8 Neb. App. 663, 600 N.W.2d 488 (1999).
124 See Eliker, supra note 15.
125 See Grady, supra note 46, 209 Neb. at 316, 307 N.W.2d at 782.
126 In re Contempt of Liles, 217 Neb. 414, 349 N.W.2d 377 (1984).
127 State ex rel. Kandt, supra note 7, 225 Neb. at 661, 407 N.W.2d at 750-51,
citing Ross v. Superior Court, 19 Cal. 3d 899, 569 p.2d 727, 141 Cal. Rptr.
133 (1977), and Farace v. Superior Court for County of Orange, 148 Cal.
App. 3d 915, 196 Cal. Rptr. 297 (1983).
704 	279 NEBRASkA REpoRTS

as authority for applying a preponderance standard of proof in
civil contempt cases.128
over the years, both this court and the Nebraska Court of
Appeals have stated that “beyond a reasonable doubt” is the
standard of proof in numerous civil contempt cases.129 But
our reinstatement of the stricter standard of proof has put this
court in a small minority. our research has uncovered only
three state courts that require proof beyond a reasonable doubt
in civil contempt cases: this court, California courts,130 and
Alabama courts.131 As noted, the U.S. Supreme Court has held
that civil contempt sanctions require neither a jury trial nor
proof beyond a reasonable doubt.132 Although the Supreme
Court has not adopted a specific standard of proof for civil con-
tempt proceedings, federal courts of appeals have unanimously
required “clear and convincing” proof of civil contempt.133
128 See Novak, supra note 46 (overruling Novak v. Novak, 2 Neb. App. 21, 508
N.W.2d 283 (1993)).
129 See, Schwartz, supra note 103; Kowal, supra note 105; Klinginsmith v.
Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997); Novak, supra note 46;
Dunning, supra note 6; State ex rel. Kandt, supra note 7; In re Contempt
of Liles, supra note 126; Bahm v. Raikes, 200 Neb. 195, 263 N.W.2d 437
(1978); Paasch v. Brown, 199 Neb. 683, 260 N.W.2d 612 (1977); Kasparek,
supra note 9; Frye v. Frye, 158 Neb. 694, 64 N.W.2d 468 (1954); Whipple,
supra note 118; Lawson v. Lawson, 16 Neb. App. 854, 753 N.W.2d 863
(2008); Locke v. Volkmer, 8 Neb. App. 797, 601 N.W.2d 807 (1999).
130 See, Ross, supra note 127; McCann v. Municipal Court, 221 Cal. App. 3d
527, 270 Cal. Rptr. 640 (1990).
131 See Savage v. Ingram, 675 So. 2d 892 (Ala. Civ. App. 1996).
132 See Bagwell, supra note 24. See, also, Hicks, supra note 21; U.S. v. Harris,
582 F.3d 512 (3d Cir. 2009); Lasar v. Ford Motor Co., 399 F.3d 1101 (9th
Cir. 2005); F.T.C. v. Kuykendall, 371 F.3d 745 (10th Cir. 2004).
133 See, In re Grand Jury Subpoena (T-112), 597 F.3d 189 (4th Cir. 2010);
Marshak v. Treadwell, 595 F.3d 478 (3d Cir. 2009); F.T.C. v. Trudeau, 579
F.3d 754 (7th Cir. 2009); Whitcraft v. Brown, 570 F.3d 268 (5th Cir. 2009);
Labor/Community Strategy Ctr. v. Los Angeles County, 564 F.3d 1115 (9th
Cir. 2009); In re Grand Jury Investigation, 545 F.3d 21 (1st Cir. 2008); U.S.
v. Ford, 514 F.3d 1047 (10th Cir. 2008); Conces, supra note 115; Georgia
Power Co. v. N.L.R.B., 484 F.3d 1288 (11th Cir. 2007); Paramedics Electro.
v. GE Medical Systems, 369 F.3d 645 (2d Cir. 2004); Jake’s, Ltd., Inc. v.
City of Coates, 356 F.3d 896 (8th Cir. 2004); Food Lion v. United Food &
Commercial Workers Union, 103 F.3d 1007 (D.C. Cir. 1997).
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many state courts also require clear and convincing proof of
civil contempt.134
We recognize that many state courts permit parties to prove
civil contempt by a preponderance of the evidence.135 And
in some circumstances, Neb. Rev. Stat. § 42-358(3) (Reissue
2008) permits a rebuttable presumption of contempt if a prima
facie showing is made that an obligor is delinquent in his or her
child or spousal support obligations.136 But apart from a statu-
tory mandate requiring a different standard, we do not believe
presumptions or a preponderance standard is consistent with
what we have stated about civil burdens of proof.
[38,39] The standard of proof functions to instruct fact find-
ers about the degree of confidence our society believes they
should have in the correctness of their factual conclusions for
a particular type of adjudication.137 In a criminal case, due
process requires the prosecution to prove, beyond a reason-
able doubt, every factual element necessary to constitute the
crime charged.138 But in civil cases, when a party’s interests are
134 See, Loewinger v. Stokes, 977 A.2d 901 (D.C. 2009); Matsuura v. E.I. du
Pont de Nemours and Co., 102 Haw. 149, 73 p.3d 687 (2003); Efstathiou
v. Efstathiou, 982 A.2d 339 (me. 2009); In re Birchall, 454 mass. 837, 913
N.E.2d 799 (2009); Town of Riverhead v. T.S. Haulers, Inc., 68 A.D.3d
1103, 890 N.Y.S.2d 332 (2009); Martin v. Martin, 179 ohio App. 3d 805,
903 N.E.2d 1243 (2008); Henry v. Schmidt, 91 p.3d 651 (okla. 2004);
Now Courier v. Better Carrier Corp., 965 A.2d 429 (R.I. 2009); Durlach
v. Durlach, 359 S.C. 64, 596 S.E.2d 908 (2004); Barton v. Barton, 29 p.3d
13 (Utah App. 2001); Vt. Women’s Health Ctr. v. Operation Rescue, 159
Vt. 141, 617 A.2d 411 (1992).
135 See, e.g., West v. Municipality of Anchorage, 174 p.3d 224 (Alaska 2007);
Braisted v. State, 614 So. 2d 639 (Fla. App. 1993); Talton v. USAA Cas.
Ins. Co., 981 So. 2d 696 (la. App. 2008); Fisher v. McCrary, 186 md.
App. 86, 972 A.2d 954 (2009); Bounds v. Bounds, 935 So. 2d 407 (miss.
App. 2006); State ex rel. Udall v. Wimberly, 118 N.m. 627, 884 p.2d 518
(N.m. App. 1994); Harcar v. Harcar, 982 A.2d 1230 (pa. Super. 2009);
Moody v. Hutchison, 159 S.W.3d 15 (Tenn. App. 2004).
136 See Hicks, supra note 21.
137 See Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720
N.W.2d 372 (2006), quoting Addington v. Texas, 441 U.S. 418, 99 S. Ct.
1804, 60 l. Ed. 2d 323 (1979).
138 Id.
706 	279 NEBRASkA REpoRTS

substantial and involve more than the mere loss of money, but
obviously do not involve a criminal conviction, due process is
satisfied by an intermediate “clear and convincing” standard
of proof.139
[40,41] Although a conditional commitment to jail is clearly
not a criminal sanction, it involves more than the mere loss
of money. Because a conditional commitment is a possible
sanction in a civil contempt proceeding, we conclude that the
“clear and convincing” standard of proof is the most appro-
priate standard. proof beyond a reasonable doubt, however, is
a criminal trial protection that does not apply to civil contempt
proceedings.140 Accordingly, we overrule all the cases listed in
footnote 129 to the extent that these cases hold or imply that
proof beyond a reasonable doubt is required for civil contempt
proceedings. outside of statutory procedures imposing a dif-
ferent standard, it is the complainant’s burden to prove civil
contempt by clear and convincing evidence.
A clear and convincing standard of proof would not have
changed the outcome of this case, but applying the law retroac-
tively could affect parties in pending cases who have justifiably
relied upon our longstanding previous case law requiring proof
“beyond a reasonable doubt” in civil contempt proceedings.
Thus, “[f]airness and equity dictate that the above-announced
rule of law be effective as of the date of this opinion.”141
V. CoNClUSIoN
We conclude that a court has the inherent power to remedy a
contemnor’s willful violation of its order or judgment by award-
ing compensatory relief to a party injured by the contempt. In
a proper case, a court may award equitable relief to remedy the
violation. We further conclude that a party may appeal from a
final order of contempt, regardless whether the court’s sanction
139 See id., citing Addington, supra note 137.
140 See, Bagwell, supra note 24; Grady, supra note 46.
141 See Commercial Fed. Sav. & Loan v. ABA Corp., 230 Neb. 317, 322, 431
N.W.2d 613, 617 (1988). See, also, Gt. Northern Ry. v. Sunburst Co., 287
U.S. 358, 53 S. Ct. 145, 77 l. Ed. 360 (1932).
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is labeled civil or criminal. Because R.k. has appealed from a
final order of contempt, we have jurisdiction.
We conclude that a court has inherent power to interpret
its own injunctive decree if a party later seeks clarification or
claims that a provision is unclear. Whether a party may appeal
from such an order depends upon whether it affects a substan-
tial right: it is not a final order if it does not change the par-
ties’ legal relationship by expanding or relaxing the decree’s
terms, dissolving the injunction, or granting additional injunc-
tive relief. Because SFAC did not claim the court’s order
interpreting the injunction granted additional relief to it, we
will not apply the law-of-the-case doctrine to hold that R.k.
was bound by findings in the court’s interpretative order
because it did not appeal until the court entered its final order
of contempt.
We conclude that the court erred in finding that SFAC had
proved beyond a reasonable doubt that R.k. willfully violated
the injunction by grinding on the pressure side of its hydraulic
valve spools. We therefore reverse the district court’s order
finding R.k. in contempt. We remand the cause with directions
that the court vacate its order finding R.k. in contempt and
awarding SFAC attorney fees and costs.
Finally, we conclude that as of the date of this opinion,
unless a statutory procedure imposes a different burden of
proof, it will be the complainant’s burden to prove civil con-
tempt by clear and convincing evidence.
reverSed aNd remaNded WitH direCtioNS.
iN re iNtereSt oF g.H., alleged to be
a daNgerouS Sex oFFeNder .
g.H., appellaNt, v. meNtal H ealtH board oF
tHe FourtH JudiCial diStriCt, appellee .
781 N.W.2d 438
Filed April 16, 2010. 	No. S-09-530.
1. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
708 	279 NEBRASkA REpoRTS