Boone River, LLC v. Miles

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
Boone River, LLC, and 11T NE, LLC,
Nebraska limited liability companies, appellees,
v. Nancy J. Miles and Cheryl L. Bettin, appellants,
and Robert R. Moninger, appellee.
___ N.W.3d ___
Filed April 11, 2025. 	No. S-24-273.
1. Judgments: Statutes: Appeal and Error. When an appeal calls for
statutory interpretation or presents questions of law, an appellate court
must reach an independent, correct conclusion irrespective of the deter-
mination made by the court below.
2. Judgments: Appeal and Error. The construction of a mandate issued
by an appellate court presents a question of law.
3. Jurisdiction. The question of jurisdiction is a question of law.
4. Judgments: Costs. The obligation under Neb. Rev. Stat. § 25-901
(Cum. Supp. 2024) for the plaintiff to pay costs when “the plaintiff fails
to obtain judgment for more than was offered by the defendant” applies
both when the plaintiff wins a monetary judgment in its favor for an
amount that is less than the offer and also when judgment is entered
against the plaintiff and in favor of the defendant and the plaintiff in
effect obtains a judgment of zero dollars.
5. Judgments: Costs: Appeal and Error. An offer of judgment under
Neb. Rev. Stat. § 25-901 (Cum. Supp. 2024) does not lose its cost-
shifting effect during the life of the case, including on remand from
an appeal.
6. Costs: Attorney Fees: Words and Phrases. “Cost,” under Neb. Rev.
Stat. § 25-901 (Cum. Supp. 2024), does not include attorney fees.
Appeal from the District Court for Douglas County: LeAnne
M. Srb, Judge. Reversed and remanded with directions.
Ronald E. Reagan, Aimee S. Melton, and Megan E. Shupe,
of Reagan, Melton & Delaney, L.L.P., for appellants.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:16 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
Marc Odgaard for appellees Boone River, LLC, and 11T
NE, LLC.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Miller-Lerman, J.
NATURE OF CASE
Nancy J. Miles and Cheryl L. Bettin appeal the order of the
district court for Douglas County in which the court deter-
mined on remand, following our decision in Boone River,
LLC v. Miles, 314 Neb. 889, 994 N.W.2d 35 (2023), modified
on denial of rehearing 315 Neb. 413, 996 N.W.2d 629, that
it lacked jurisdiction to consider Miles and Bettin’s request
for costs pursuant to Nebraska’s offer of judgment statute,
Neb. Rev. Stat. § 25-901 (Cum. Supp. 2024), because such
an award was beyond the scope of our mandate. We conclude
that Miles and Bettin’s request for costs under § 25-901 was
properly raised after judgment was entered based on our
mandate, and we therefore reverse the order and remand the
matter with directions to the district court to determine costs
to which Miles and Bettin are entitled under § 25-901, with
the understanding that “cost” recoverable under § 25-901 does
not include attorney fees.
STATEMENT OF FACTS
The controversy among the parties in this case began
when Boone River, LLC, purchased a tax certificate and later
obtained a tax deed for property owned by Miles, Bettin, and
Robert R. Moninger, who are siblings. Boone River trans-
ferred the property to 11T NE, LLC (11T), and 11T sued
Miles, Bettin, and Moninger to quiet title to the property. The
defendants brought Boone River into the case as a third-party
defendant. The court in the quiet title action found that Boone
River had not complied with tax sale statutes, and the court
therefore voided the tax deed held by 11T and quieted title in
Miles, Bettin, and Moninger.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
In November 2019, Boone River and 11T filed a complaint
against Miles, Bettin, and Moninger, setting forth claims of
unjust enrichment and seeking compensation for taxes paid
and maintenance costs incurred on the property before the tax
deed was voided in the quiet title action. In a responsive plead-
ing, Miles and Bettin set forth affirmative defenses, including
an assertion that the action was barred because Boone River
and 11T should have pursued their claims for unjust enrich-
ment in the quiet title action. Moninger filed his own answer
and generally did not join in Miles and Bettin’s defense of
the action.
In 2022, following a bench trial on the unjust enrichment
claims, the district court entered judgment in favor of Boone
River and 11T to the extent that Miles, Bettin, and Moninger
had been unjustly enriched by Boone River and 11T’s payment
of taxes on the property before the deed was declared void.
In response to a motion to alter or amend filed by Miles and
Bettin, the court modified the amount of the judgment, and the
court entered judgment in the amount of $16,918.68 in favor
of Boone River and 11T.
Of significance to the issues in this appeal, we note that dur-
ing the pendency of the unjust enrichment action, on January
14, 2021, Miles and Bettin had filed an amended response in
which they added a counterclaim. In the counterclaim, Miles
and Bettin alleged, inter alia, that on September 16, 2020,
they had made an offer to Boone River and 11T, pursuant
to § 25-901, to confess judgment in the sum of $2,500 and
that Boone River and 11T did not accept the offer. Miles and
Bettin alleged that if Boone River and 11T recovered less
than $2,500, Boone River and 11T would be required to pay
Miles and Bettin costs from September 16 to the disposition
of the case. In the conclusion of the amended response, Miles
and Bettin requested an order dismissing them as parties and,
inter alia, awarding them attorney fees under § 25-901. In a
response to the counterclaim, Boone River and 11T admitted
that Miles and Bettin had made the offer to confess judgment

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
and that they had not accepted the offer, but they otherwise
denied the counterclaim. As noted above, the district court’s
judgment on the unjust enrichment claims exceeded $2,500,
and the court’s order of judgment did not address Miles and
Bettin’s counterclaim relating to § 25-901.
Miles and Bettin appealed the judgment in the unjust enrich-
ment action to this court. On appeal, we agreed with Miles
and Bettin’s claims of preclusion and reversed the judgment
as to them. Because Moninger did not appeal, we affirmed the
judgment as to him. In our conclusion, we stated as follows:
“Because we find that Miles and Bettin have shown that Boone
River and 11T are precluded from litigating the unjust enrich-
ment claims against them, we reverse the judgment against
Miles and Bettin. We affirm the judgment against Moninger.”
Boone River, LLC v. Miles, 314 Neb. 889, 904, 994 N.W.2d 35,
46 (2023), modified on denial of rehearing 315 Neb. 413, 996
N.W.2d 629. Our mandate was filed on December 11, 2023,
and it stated in part that the district court was to “proceed to
enter judgment in conformity with the judgment and opinion
of [the] court” and that “[c]osts of this appeal are to be paid
by appellee.”
On December 12, 2023, the district court filed an order
stating that pursuant to our mandate, the judgment had “been
AFFIRMED in part and in part reversed . . . and costs are to
be paid by appellee.” On December 19, Miles and Bettin filed
a motion for costs, including attorney fees, to which they
asserted they were statutorily entitled pursuant to § 25-901. In
the motion, Miles and Bettin alleged that they were entitled
to costs “from September 16, 2020, to the conclusion of
this matter, as pled in their Counterclaim” and further that
an order for such costs was “mandated by the Order of the
Supreme Court of Nebraska.”
Boone River and 11T objected to the motion for costs
that Miles and Bettin filed in the district court following the
appeal and our mandate. Boone River and 11T also filed a
motion in which they alleged that Miles and Bettin’s motion

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
for costs was frivolous, and they sought an award of attorney
fees and costs for defending the motion. Miles and Bettin filed
an amended motion in which they alleged that their “costs”
from the time of the September 16, 2020, offer of judgment
included $51,825 “for attorney’s fees” and $2,070.30 “for
expenses.” They attached an affidavit of their attorney setting
forth such fees and expenses.
After a hearing, the district court filed an order on March
18, 2024, in which it ruled on Miles and Bettin’s and Boone
River and 11T’s respective motions for costs. Rulings related
to these motions give rise to this appeal. The court stated that
Miles and Bettin characterized their motion for costs both
as an independent motion for costs under § 25-901 and as a
motion pursuant to their counterclaim. The court acknowledged
that “[f]ollowing the judgment on remand,” Boone River and
11T had recovered less than the $2,500 offer of judgment.
However, the court agreed with Boone River and 11T’s argu-
ment that Miles and Bettin’s motion for costs was not properly
before the court because it was “outside the mandate.” In its
ruling, the court cited Klingelhoefer v. Monif, 286 Neb. 675,
839 N.W.2d 247 (2013). We reasoned in Klingelhoefer that, in
moving for costs and fees, the party was attempting to obtain
further relief that had not previously been requested and that
the district court had no jurisdiction to entertain the motion.
Thus, in Klingelhoefer, under the facts of that case, we deter-
mined that “a request for damages, costs, and fees [was] out-
side the mandate of the appellate court.” 286 Neb. at 679, 839
N.W.2d at 251.
The district court in this case determined that Miles and
Bettin had failed to raise the issue of costs pursuant to
§ 25-901 in their appeal and that they “could have alleged
both that the [district court] erred in entering judgment for
[Boone River and 11T] and that, because of that error, it fur-
ther erred in not awarding costs related to the ‘counterclaim’
or directly under § 25-901.” The court further stated that Miles
and Bettin had not argued on appeal that appellate jurisdiction

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
was lacking because their counterclaim remained pending. The
court concluded that it lacked jurisdiction “except to minis-
terially enter the judgment of the appellate Court” and that it
was not “empowered to consider a novel motion for costs.”
The court therefore dismissed Miles and Bettin’s motion with
prejudice, and the court stated that because of the dismissal, it
did not reach the issue whether attorney fees are awardable as
“cost” under § 25-901. The court determined that Miles and
Bettin’s motion was not frivolous or brought in bad faith and
therefore overruled Boone River and 11T’s motion for costs
and fees.
Miles and Bettin filed a motion to alter or amend and
requested that the district court (1) “factually determine reason-
able fees for services rendered at the trial court and appellate
levels” and (2) “legally determine whether attorney’s fees are
recoverable as costs” under § 25-901. The court overruled the
motion to alter or amend, stating that it “still lack[ed] jurisdic-
tion over these issues.”
Miles and Bettin appeal.
ASSIGNMENTS OF ERROR
Miles and Bettin claim, restated, that the district court erred
when it dismissed their motion for costs and failed to grant
relief pursuant to § 25-901.
STANDARDS OF REVIEW
[1-3] When an appeal calls for statutory interpretation or
presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determi-
nation made by the court below. In re Estate of McCormick,
317 Neb. 960, 12 N.W.3d 802 (2024). The construction of a
mandate issued by an appellate court presents a question of
law, In re Masek Family Trust, ante p. 268, 15 N.W.3d 379
(2025), and the question of jurisdiction is a question of law, In
re Estate of Koetter, 312 Neb. 549, 980 N.W.2d 376 (2022).

- 766 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
ANALYSIS
This appeal presents questions regarding the interpretation
and application of § 25-901, including the appropriate time at
which a party may seek costs recoverable under the statute. We
therefore set forth the text of § 25-901, which provides:
The defendant in an action for the recovery of money
only may, at any time before the trial, serve upon the
plaintiff or the plaintiff’s attorney an offer in writing to
allow judgment to be taken against the defendant for the
sum specified therein. If the plaintiff accepts the offer and
gives notice thereof to the defendant or the defendant’s
attorney, within five days after the offer was served, the
offer and an affidavit that the notice of acceptance was
delivered in the time limited may be filed by the plaintiff
or the defendant may file the acceptance, with a copy of
the offer verified by affidavit. In either case, the offer
and acceptance shall be entered upon the record, and
judgment shall be rendered accordingly. If the notice of
acceptance is not given in the period limited, the offer
shall be deemed withdrawn and shall not be given in
evidence or mentioned on the trial. If the plaintiff fails to
obtain judgment for more than was offered by the defend-
ant, the plaintiff shall pay the defendant’s cost from the
time of the offer.
The final sentence of § 25-901, which provides, “If the
plaintiff fails to obtain judgment for more than was offered
by the defendant, the plaintiff shall pay the defendant’s cost
from the time of the offer,” is at issue in the present case. As
we read the language of the statute, the plaintiff’s obligation
to pay the defendant’s cost arises only after the plaintiff has
“fail[ed] to obtain judgment for more than was offered by the
defendant.” In the present case, when the district court entered
its original judgment in 2022, an obligation under § 25-901
did not arise because at that time Boone River and 11T had
obtained a monetary judgment for more than was offered by
Miles and Bettin. It was not until after the appeal to this court,

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
when the district court filed its order based on our mandate,
that a judgment was entered in the district court against Boone
River and 11T entitling them to no monetary award and in
favor of Miles and Bettin.
[4] We read the obligation under § 25-901 for the plaintiff
to pay costs when “the plaintiff fails to obtain judgment for
more than was offered by the defendant” to apply both when
the plaintiff wins a monetary judgment in its favor for an
amount that is less than the offer and also when, as in this case,
judgment is entered against the plaintiff and in favor of the
defendant and the plaintiff in effect obtains a judgment of zero
dollars. This outcome flows from the language of § 25-901.
We are aware that the outcome where the plaintiff takes
naught in Nebraska differs from precedent applying Fed. R.
Civ. P. 68 (Rule 68), which relates to offers of judgment. Rule
68 states that the offeree must pay costs “[i]f the judgment
that the offeree finally obtains is not more favorable than the
unaccepted offer.” Cases applying Rule 68 have held that the
federal rule applies when judgment is entered in the plaintiff’s
favor for an amount less than the offer but that the rule does
not apply when judgment is entered against the plaintiff and
in favor of the defendant. See Delta Airlines, Inc. v. August,
450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981) (stat-
ing that Rule 68 does not apply where judgment is entered
against plaintiff-offeree and in favor of defendant-offeror).
The language of § 25-901 differs from the language of Rule
68. Nebraska’s § 25-901 originated as part of the 1867 codifi-
cation of statutes; thus, its language almost entirely predated,
and was not modeled on, federal Rule 68. The only amend-
ment, in 2018, merely substituted gender-neutral language
for masculine pronouns and changed the description of the
location of recording the offer and acceptance. See 2018 Neb.
Laws, L.B. 193, § 10. We read § 25-901, and specifically the
language “fails to obtain judgment for more than was offered
by the defendant,” to be more expansive than the language
of Rule 68 and to include a judgment against the plaintiff

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
and in favor of the defendant. Therefore, in the present case,
§ 25-901 applies to the judgment entered after remand against
Boone River and 11T and in favor of Miles and Bettin.
[5] As stated above, the requirement for a plaintiff to pay
the defendant’s cost under § 25-901 does not arise until the
plaintiff has failed to obtain a judgment for more than was
offered by the defendant, and in this case, that requirement
did not arise until the judgment in favor of Miles and Bettin
was entered by the district court in December 2023, follow-
ing the appeal and remand. In this regard, we note that under
Rule 68, federal courts have held that the offer of judgment is
effective even after an appeal and remand. See, e.g., Pouillon
v. Little, 326 F.3d 713 (6th Cir. 2003) (determining defend-
ants’ failure to renew offer of judgment after remand did not
preclude such offer from requiring plaintiff to pay defendants’
costs when plaintiff ultimately received judgment in amount
less than offer). We read § 25-901 in the same way as Rule 68
in this respect. That is, we believe that the offer of judgment
under § 25-901 does not lose its cost-shifting effect during the
life of the case, including on remand from an appeal.
In this case, the offer of judgment made by Miles and Bettin
during the pendency of the claim for unjust enrichment was
still effective for purposes of cost shifting under § 25-901 after
the appeal and remand when judgment was ultimately entered
by the district court against Boone River and 11T and in favor
of Miles and Bettin. Therefore, the requirement for Boone
River and 11T to pay Miles and Bettin’s cost under § 25-901
arose when the judgment in favor of Miles and Bettin was
entered in December 2023 based on our mandate following
the appeal.
Because the requirement under § 25-901 did not arise until
the judgment was entered following our remand and mandate,
it was appropriate for Miles and Bettin to ask the district
court to address its existing request for relief under § 25-901
after the district court entered judgment on our mandate.
When the district court determined it did not have jurisdiction

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
to consider the request, it relied on Klingelhoefer v. Monif,
286 Neb. 675, 839 N.W.2d 247 (2013). Because the facts and
posture of Klingelhoefer differ from those in the instant case,
the district court’s reliance on Klingelhoefer was misguided.
In Klingelhoefer, we reviewed, inter alia, an award of costs,
expenses and attorney fees entered by the district court after
the Nebraska Court of Appeals affirmed a monetary judgment
and issued a mandate that directed the district court to “‘enter
judgment in conformity with the judgment and opinion’” of
the Court of Appeals. 286 Neb. at 677, 839 N.W.2d at 250.
In Klingelhoefer, we determined that the district court erred
when it entertained the motion for costs, expenses, and attor-
ney fees, primarily because the movant “had not previously
requested [such award] from the district court or the Court of
Appeals.” 286 Neb. at 679, 839 N.W.2d at 251.
By contrast to Klingelhoefer, in the present case, the judg-
ment originally entered by the district court did not entitle
Miles and Bettin to recover for the existing request under
§ 25-901 and Miles and Bettin could not have actively
requested costs under § 25-901 at that time. Instead, a judg-
ment entitling Miles and Bettin to recover under § 25-901
was not entered until after the appeal to this court, as a result
of which the original judgment was reversed as to Miles and
Bettin, and the judgment entered by the district court based
on our mandate was the judgment that gave rise to entitlement
to relief under § 25-901. It was proper for Miles and Bettin
to request relief under § 25-901 after the judgment based on
our mandate was entered, and the district court erred when it
determined that it lacked jurisdiction to consider the request.
We therefore reverse the order of the district court that dis-
missed Miles and Bettin’s motion and remand the matter to
the district court with directions to consider Miles and Bettin’s
request for costs under § 25-901.
Because the district court determined that it did not have
jurisdiction to consider Miles and Bettin’s request, the district
court declined to determine the issue raised by the parties

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BOONE RIVER, LLC v. MILES
Cite as 318 Neb. 760
regarding whether attorney fees are recoverable as “cost” under
§ 25-901. Because we are remanding the matter for the district
court to consider the request, it will be helpful on remand if
we address that question. See In re Estate of Lakin, 310 Neb.
271, 965 N.W.2d 365 (2021) (stating that appellate court may,
at its discretion, discuss issues unnecessary to disposition of
appeal where those issues are likely to recur during further
proceedings), modified on denial of rehearing 310 Neb. 389,
966 N.W.2d 268.
[6] Section 25-901 refers only to “cost,” and it does not
specifically refer to attorney fees. We have stated that “[t]he
term ‘costs’ in a statute is not generally understood to include
‘attorney fees.’” Wetovick v. County of Nance, 279 Neb. 773,
797, 782 N.W.2d 298, 318 (2010). The Legislature chose
to refer only to “cost” in § 25-901, and we see nothing in
§ 25-901 that indicates an intent to include attorney fees as
an item to be recovered. Cf. Murray v. Stine, 291 Neb. 125,
128, 129, 864 N.W.2d 386, 389 (2015) (stating that “statutorily
authorized attorney fees” are “treated as an element of court
costs” in case applying Neb. Rev. Stat. § 25-824 (Reissue
2008), which specifically provides for award of “reasonable
attorney’s fees and court costs”). Therefore, on remand, the
district court should determine the cost Miles and Bettin may
recover under § 25-901 with the understanding that “cost”
under § 25-901 does not include attorney fees.
CONCLUSION
We conclude that Miles and Bettin’s request for costs under
§ 25-901 was properly raised after judgment was entered
based on our mandate. We further conclude that the “cost”
recoverable under § 25-901 does not include attorney fees.
We therefore remand the matter with directions to the district
court to determine costs to which Miles and Bettin are entitled
under § 25-901, in accordance with this opinion.
Reversed and remanded with directions.