Pennfield Oil Co. v. Winstrom

pennfIeld oIl C ompany , a nebraSka CorporatIon , appellee , v .
W.l. WInStrom , IndIvIdually and aS perSonal repreSentatIve
of the eState of r.W. WInStrom , appellee , and
andreW l. WInStrom , appellant .
752 N.W.2d 588
Filed July 18, 2008. 	No. S-06-1268.
1. Appeal and Error. The construction of a mandate issued by an appellate court
presents a question of law.
2. ____. On questions of law, an appellate court is obligated to reach a conclusion
independent of the determination reached by the court below.
3. Courts: Appeal and Error. After receiving a mandate, a trial court is without
power to affect rights and duties outside the scope of the remand from an appel-
late court.
4. ____: ____. When an appellate court’s mandate makes its opinion a part thereof by
reference, the lower court should examine the opinion with the mandate to deter-
mine the judgment to be entered or the action to be taken thereon.
5. Actions: Judicial Notice. A court may judicially notice adjudicative facts, which
are not subject to reasonable dispute, at any stage of the proceeding.
6. Actions: Judicial Notice: Appeal and Error. In interwoven and interdependent
cases, an appellate court may examine its own records and take judicial notice of
the proceedings and judgment in a former action involving one of the parties.
7. Actions: Judicial Notice: Records: Appeal and Error. An appellate court may
take judicial notice of a document, including briefs filed in an appeal, in a separate
but related action concerning the same subject matter in the same court.
8. Appeal and Error. Under the law-of-the-case doctrine, an appellate court’s hold-
ings on issues presented to it conclusively settle all matters ruled upon, either
expressly or by necessary implication.
9. 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 in a later stage.
10. ____: ____. The law-of-the-case doctrine promotes judicial efficiency and protects
parties’ settled expectations by preventing parties from relitigating settled issues
within a single action.
11. Appeal and Error. The law-of-the-case doctrine applies with greatest force when
an appellate court remands a case to an inferior tribunal.
12. Courts: Appeal and Error. Upon remand, a district court may not render a judg-
ment or take action apart from that which the appellate court’s mandate directs
or permits.
13. Waiver: Appeal and Error. A decision made at a previous stage of litigation,
which could have been challenged in the ensuing appeal, but was not, becomes
the law of the case; the parties are deemed to have waived the right to challenge
that decision.
14. ____: ____. An issue is not considered waived if a party did not have both an
opportunity and an incentive to raise it in a previous appeal.
PENNFIELD OIL CO. v. WINSTROM 	123
Cite as 276 Neb. 123
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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15. Appeal and Error. An exception to the law-of-the-case doctrine applies if a party
shows a material and substantial difference in the facts on a matter previously
addressed by an appellate court.
16. Presumptions: Appeal and Error. A point incidentally raised, vaguely referred
to, or given cursory treatment on appeal is insufficient to preserve an unas-
signed error.
17. Waiver: Appeal and Error. Issues that an appellant waives on appeal are not part
of an appellate court’s mandate on remand.
18. Appeal and Error. An appellate court will not consider an issue on appeal that the
trial court has not decided.
19. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts consider
in determining whether they may properly decide a controversy.
20. Courts. The fundamental principle of ripeness is that courts should avoid entan-
gling themselves, through premature adjudication, in abstract disagreements
based on contingent future events that may not occur at all or may not occur
as anticipated.
21. Actions. Generally, a case is ripe when no further factual development is necessary
to clarify a concrete legal dispute susceptible to specific judicial relief, as distin-
guished from an advisory opinion regarding contingent future events.
22. Judgments: Appeal and Error. The law disfavors piecemeal appeals because
multiple appeals interfere with efficient judicial administration and impose on the
parties costs and risks associated with protracted litigation.
Appeal from the District Court for Douglas County: gerald
e. moran, Judge. Affirmed.
David A. Domina and Claudia L. Stringfield-Johnson, of
Domina Law Group, P.C., and Robert J. Routh, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appellant.
John R. Douglas, Brien M. Welch, Daniel J. Epstein, and
David A. Blagg, of Cassem, Tierney, Adams, Gotch & Douglas,
for appellee W.L. Winstrom.
heavICan, C.J., C onnolly, gerrard, S tephan, mCC ormaCk,
and mIller -lerman, JJ.
C onnolly, J.
I. SUMMARy
Over the past several years, W.L. Winstrom (Bill) and his
son, Andrew Winstrom, have waged war over 8.49 shares of
Pennfield Oil Company (Pennfield), a closely held corpora-
tion. Pennfield’s board of directors consisted of Bill; Sydney
Winstrom, Bill’s wife and Andrew’s mother; and Andrew. This
is the second appeal concerning the disputed shares. The battle
124 	276 NEBRASkA REPORTS

centered on redemption agreements. Bill is Pennfield’s chief
executive 	officer 	and 	controlling 	shareholder. Andrew 	was
Pennfield’s president until October 2006. Control of Pennfield
hinged upon the disposition of the remaining 8.49 shares in the
estate of R.W. Winstrom, Bill’s father. Bill inherited the shares
and had controlled them as the estate’s personal representative.
Together with the shares he owns, Bill controlled the majority of
shares in Pennfield. If Pennfield had redeemed the estate’s 8.49
shares, Andrew would have been the majority shareholder.
In Pennfield Oil Co. v. Winstrom (Pennfield I),1 Andrew
and Pennfield appealed from the district court’s order that
the estate’s shares were not subject to Pennfield’s demand for
redemption. We reversed. We determined that the shares were
subject to a valid demand for redemption. We held, however,
that the record failed to show Andrew and Pennfield were equi-
tably entitled to specific performance ordering redemption of
the shares. We concluded that the directors had not yet decided
whether to waive Pennfield’s right of redemption under the
repurchase agreement.
This appeal presents a couple of issues: Did our mandate
allow the district court on remand to reconsider issues raised by
Andrew that the court had decided against him before the first
appeal? Did Andrew and Pennfield waive several issues because
they failed to raise them in the district court? We conclude that
Pennfield’s redemption of the estate’s shares was not manda-
tory under our decision in Pennfield I. We further conclude that
Andrew has waived his claims that Pennfield could not waive
redemption by failing to raise them on appeal in Pennfield I.
Because Andrew waived these issues in his first appeal, the
district court correctly determined they were not part of our
mandate. We affirm.
II. BACkGROUND
1. dIvISIon of pennfIeld ’S S hareS betWeen
r.W.’S eState , bIll , and andreW
R.W. was one of Pennfield’s founders; by 1951, he held all of
its 70 outstanding shares. In 1960, R.W. gifted 20 shares each to
1 Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006).
PENNFIELD OIL CO. v. WINSTROM 	125
Cite as 276 Neb. 123

his sons, W.D. Winstrom (Dean) and Bill. That same year, the
three shareholders and their wives signed an agreement regard-
ing disposition of their stock (the 1960 agreement). The 1960
agreement stated that if a shareholder died or wished to dispose
of his stock, Pennfield “shall” buy the stock at the book value,
to be determined at a shareholders’ meeting within 30 days of
death or intent to dispose. Pennfield redeemed Dean’s 20 shares
in 1969. In 1987, R.W. gifted 5.27 shares to Bill, giving Bill
a majority interest, or 25.27 shares out of the 50 outstanding
shares. R.W. died later in 1987. In his will, R.W. devised all of
his Pennfield shares to Bill. R.W. designated Bill as personal
representative. Thus, although Bill, as personal representative,
did not transfer the estate’s shares to himself individually, he
controlled all of Pennfield’s shares.
In December 1987, Pennfield’s board of directors elected to
redeem the estate’s shares. But the board elected to extend the
time for redemption; the financial burden of redeeming them all
at once created a financial hardship, and the estate also wished
to defer estate tax liability. In June 1988, acting for the estate,
himself, and Pennfield, Bill created a new “Restated Stock
Repurchase Agreement” (the 1988 agreement). The 1988 agree-
ment, like the 1960 agreement, provided that Pennfield “shall”
redeem all the stock of a shareholder upon the shareholder’s
death or if the shareholder wanted to dispose of his or her
shares. But unlike the 1960 agreement, the 1988 agreement did
not require the shareholders to determine the shares’ book value
within 30 days. Instead, it required the parties to agree on a
closing date for redeeming the shares within 15 months. When a
shareholder died, it required Pennfield to defer redemption until
the shareholder’s estate had paid all deferred federal estate tax
if the shareholder’s personal representative requested deferral.
In addition—and crucial to this appeal—the 1988 agreement
allowed Pennfield to waive redemption of a shareholder’s stock
in specified circumstances. One circumstance was a share-
holder’s death when his or her shares had passed to a person
who had signed onto the 1988 agreement and was employed
by Pennfield. This provision clearly applied to the shares R.W.
devised to Bill.
126 	276 NEBRASkA REPORTS

In 1988, Andrew was elected president. In January 1990,
he signed on to the 1988 agreement. Later that month, the
board redeemed 16.24 shares of the estate’s shares and voted
to sell 15.89 shares to Andrew, conditioned upon his accep-
tance of the 1988 agreement. Andrew also signed a separate
“Stock Redemption Agreement” (the 1990 agreement). In the
1990 agreement, the parties confirmed and ratified all previ-
ous agreements as restated in the 1988 agreement. At this time,
Bill held 25.27 shares, the estate held 8.49 shares, and Andrew
held 15.89 shares. In 1992, Bill gifted 8.43 shares to Andrew,
giving Andrew a total of 24.32 shares and Bill 16.84 shares.
But because Bill controlled the estate’s 8.49 shares as personal
representative of R.W.’s estate, he still controlled the majority of
Pennfield’s shares.
2. bIll ’S attemptS to tranSfer the S hareS to hImSelf
In 1997, Bill attempted to transfer the estate’s remaining 8.49
shares to himself. But after Andrew refused to sign the stock
certificate, the board tabled the transfer. In December 2000,
after the estate made its final estate tax payment, Bill again
attempted to transfer the estate’s shares to himself. But Andrew
again refused to sign the stock certificate. In January 2001, Bill
demanded a special meeting of the directors to vote on trans-
ferring the shares from the estate to Bill. Afterward, Andrew
gave notice that Pennfield was redeeming the estate’s remaining
shares, effective May 2000. Andrew also directed the filing of
this action against Bill before the scheduled special meeting. A
week later, Pennfield filed an amended petition, adding Andrew
as a defendant. In February, the district court issued a temporary
injunction, enjoining Andrew and Bill from transferring the
estate’s shares.
3. dIStrICt C ourt ’S 2004 order
Following a bench trial in 2004, the district court ruled that
the estate’s shares were not subject to redemption. It reasoned
that the 1960 agreement controlled at the time of R.W.’s death.
Because the board did not hold a shareholders’ meeting within
the 30-day time limit for valuing the estate’s shares, the court
concluded that Pennfield had waived its right of redemption. It
PENNFIELD OIL CO. v. WINSTROM 	127
Cite as 276 Neb. 123

further found that even if Pennfield had not waived this right,
allowing it to redeem the estate’s shares would be contrary to
the parties’ intent to give Bill majority ownership of Pennfield’s
shares. The court found this intent from the parties’ 1960 agree-
ment, R.W.’s gifts of shares to Bill over the years, and R.W.’s
will, devising his remaining shares to Bill. It also found that
Bill’s agreements with Andrew showed that Bill did not intend
for Andrew to be the majority shareholder. The court therefore
concluded it would be inequitable to require Bill to surrender the
estate’s shares. In the light of these findings, the court denied
“each and every other claim in W.L. and Andrew’s counterclaim
and cross-claims not specifically addressed herein.”
4. thIS C ourt ’S deCISIon In P ennfield i
In Pennfield I, we reversed the district court’s ruling that the
estate’s shares were not subject to redemption. We concluded
that even if the board waived redemption under the 1960 agree-
ment, the 1988 agreement controlled. We concluded that the
1988 agreement restated and clarified the earlier agreements
and that the parties “were all bound by the 1988 agreement.”2
We further determined that (1) the 1988 agreement anticipated
persons other than Bill owning Pennfield stock; (2) the 1988
agreement permitted the redemption of stock held by the estate;
and (3) the 1988 agreement was enforceable despite R.W.’s will
because R.W. and Bill had signed agreements specifically pro-
viding for the redemption of stock if a shareholder died. We also
rejected the assignments of error in Bill’s cross-appeal.
But, more important, we also determined that the record
failed to show “Pennfield and Andrew [were] equitably enti-
tled to a decree ordering the Estate to surrender the stock for
redemption.”3 We stated that the 1988 agreement did not change
the requirement in the 1960 agreement that the shareholders
meet to determine the shares’ book value before redeeming
them. We further stated that the board of directors had not yet
had the opportunity to consider whether the board should waive
2 Id. at 228, 720 N.W.2d at 896.
3 Id. at 239, 720 N.W.2d at 903.
128 	276 NEBRASkA REPORTS

redemption under the waiver provision in the 1988 agreement.
We concluded:
Pennfield and Andrew are entitled to declaratory relief,
establishing that Bill and the Estate are subject to a valid
demand for redemption of the stock pursuant to the stock
transfer restriction agreements. But the record does not
affirmatively show that Pennfield took all the steps nec-
essary to redeem the shares, and it appears that the dis-
trict court’s temporary injunction may have prevented
Pennfield’s shareholders and board of directors from exer-
cising their duties with respect to the redemption agree-
ments. Thus, we conclude on this record, it would be
unjust to decree specific performance of the stock transfer
redemption agreements.4
We remanded the cause for the district court to grant Pennfield
and Andrew declaratory relief consistent with our opinion.
5. proCeedIngS folloWIng our remand
On remand, Andrew and Pennfield moved for an order that
(1) the 8.49 shares subject to redemption could not be voted at a
shareholders’ meeting and (2) Bill and Sydney were disqualified
from voting on the redemption of the estate’s shares because
they were not disinterested directors. Bill countered. He moved
for an order to dissolve the court’s injunction and to require
the shareholders and board of directors to meet. The district
court overruled Andrew and Pennfield’s motion and granted
Bill’s motion. So when the board met, Bill and Sydney voted to
waive Pennfield’s right to redeem the estate’s shares. Thus, Bill
maintained control over the majority of Pennfield’s shares. They
also voted to (1) transfer the disputed shares from the estate
to Bill, (2) terminate Andrew’s employment, and (3) disavow
Pennfield’s lawsuit against Bill.
After this meeting, Andrew moved for a temporary restrain-
ing order, injunction, case progression order, and trial date on
unresolved issues. Andrew contended that the court had not
resolved issues raised in Pennfield’s original pleadings because
they were “not mature for final adjudication” until the directors’
4 Id. at 239-40, 720 N.W.2d at 903.
PENNFIELD OIL CO. v. WINSTROM 	129
Cite as 276 Neb. 123

2006 meeting. Those issues were that Bill and Sydney could not
vote on Pennfield’s waiver of the estate’s shares because of their
conflict of interest as directors and because Bill had breached
his fiduciary duties to Pennfield. Andrew also alleged that this
court had required further proceedings to determine whether
Pennfield could waive redemption after the estate made its
final payment of federal estate tax. He sought an order enjoin-
ing the enforcement of the directors’ resolution until the court
conducted further proceedings to determine whether Pennfield
could waive redemption and whether Bill and Sydney were dis-
qualified from voting.
The district court overruled Andrew’s motion. It determined
that this court was aware of the issues Andrew and Pennfield had
raised in their earlier pleadings. The court interpreted our man-
date as not requiring any further proceedings before dissolving
its injunction and ordering shareholders’ and directors’ meetings.
It further concluded that the record failed to show Bill would
cause irreparable harm to Pennfield. It reasoned that the earlier
injunctions had merely caused continuous disputes, which were
best resolved by allowing the board to act.
III. ASSIGNMENTS OF ERROR
Andrew assigns, restated, that the district court erred in
granting equitable relief to Bill when this court directed equi-
table relief for Pennfield and Andrew. He also assigns that the
court erred in refusing to proceed to trial on previously unre-
solved claims: (1) whether the disputed 8.49 shares could be
voted at the board meeting; (2) whether the board could waive
Pennfield’s right of redemption under any circumstances; (3)
whether Bill and Sydney were interested directors and disquali-
fied to vote on Pennfield’s redemption of the shares; and (4)
whether the redemption waiver was fair to Pennfield under the
conflict of interest statutes for corporations.5
5 See Neb. Rev. Stat. § 21-20,112 et seq. (Reissue 1997).
130 	276 NEBRASkA REPORTS

IV. STANDARD OF REVIEW
[1,2] The construction of a mandate issued by an appellate
court presents a question of law.6 On questions of law, we are
obligated to reach a conclusion independent of the determination
reached by the court below.7
V. ANALySIS
1. partIeS’ C ontentIonS
Andrew contends that Bill was not entitled to any equitable
relief under our mandate in Pennfield I. He contends that the
district court therefore failed to comply with our mandate in
Pennfield I. He argues the district court ignored our mandate
by failing to (1) grant equitable relief to Andrew and Pennfield
and (2) complete the case on the “remaining issues” raised by
Andrew’s and Pennfield’s pleadings.
Bill 	contends 	that 	both 	the 	pleadings 	and 	evidence 	in
Pennfield I placed the issue of Bill and Sydney’s alleged
interested-director status before the district court. Bill also
contends that the court decided those issues against Andrew.
He argues that these issues were ripe for appeal in Pennfield I
because declaratory judgments are binding on the parties in fur-
ther adjudication. Bill further argues that Andrew is barred from
raising issues now that he could have raised in Pennfield I. Bill
contends that Andrew failed to assign the district court’s deter-
minations as error and did not ask for rehearing after this court
issued its decision. Thus, Bill argues that Andrew is now barred
from raising the issues he could have raised in Pennfield I.
[3] Simply put, the issue is whether this court’s mandate
permitted the district court to consider Andrew’s “remaining
issues” on remand. After receiving a mandate, a trial court is
without power to affect rights and duties outside the scope of the
remand from an appellate court.8 Andrew’s “remaining issues”
generally fall into three broad categories: claims that he (1)
raised to the district court and raised to this court in Pennfield I,
6 See Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 651 (2001).
7 Id.
8 See VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d
651 (2007).
PENNFIELD OIL CO. v. WINSTROM 	131
Cite as 276 Neb. 123

(2) raised to the district court but failed to raise to this court in
Pennfield I; and (3) failed to raise to the district court or this
court in Pennfield I.
[4] In Pennfield I, we directed the district court to grant
Pennfield and Andrew declaratory relief consistent with our opin-
ion. When an appellate court’s mandate makes its opinion a part
thereof by reference, the lower court should examine the opinion
with the mandate. This allows the lower court to determine the
judgment to be entered or the action to be taken thereon.9 Thus,
we examine our opinion in Pennfield I to determine whether our
mandate permitted the district court to consider the “remaining
issues” raised by Andrew on remand.
2. J udICIal notICe of the partIeS’ pleadIngS and brIefS
This appeal requires us to determine whether we implicitly
decided in Pennfield I some issues Andrew raises now. We must
also decide whether Andrew and Pennfield’s failure to raise any
issues in Pennfield I waived those issues for further proceedings.
To make these determinations, we must review our records of
the previous appeals.
[5-7] A court may judicially notice adjudicative facts, which
are not subject to reasonable dispute, at any stage of the pro-
ceeding.10 In interwoven and interdependent cases, we may
examine our own records and take judicial notice of the pro-
ceedings and judgment in a former action involving one of the
parties.11 We have further held that we may take judicial notice
of a document, including briefs filed in an appeal, in a separate
but related action concerning the same subject matter in the
same court.12
In this ongoing battle, this court has previously considered
two appeals and two original actions arising out of this dispute.
Besides Pennfield I, we have dismissed an interlocutory appeal
9 See Pursley, supra note 6.
10 See, Neb. Evid. R. 201, Neb. Rev. Stat. § 27-201 (Reissue 1995); J.B.
Contracting Servs. v. Universal Surety Co., 261 Neb. 586, 624 N.W.2d 13
(2001).
11 See Jessen v. Jessen, 259 Neb. 644, 611 N.W.2d 834 (2000).
12 Id.
132 	276 NEBRASkA REPORTS

from the parties’ dispute over the retention of counsel to repre-
sent Pennfield.13 We have also denied two original applications
for a writ of mandamus.14 Some of the parties’ original plead-
ings in this action are contained in the transcripts of the related
actions. So, we will judicially notice the parties’ original plead-
ings in their related appeals and their appellate briefs filed in
Pennfield I.
3. thIS Court I mplICItly deCIded agaInSt andreW on
hIS C laImS that redemptIon under the 1988
agreement WaS mandatory and that bIll
WaS eStopped from C laImIng otherWISe
Andrew contends that Pennfield’s redemption of the estate’s
remaining shares was mandatory under the 1988 agreement
and that this issue was not decided in Pennfield I. He argues
that the 1988 agreement permitted Pennfield to only waive
redemption during the federal tax deferral period. Andrew and
Pennfield raised this argument to the district court and this
court in Pennfield I. Andrew contends that our opinion indicates
we agreed redemption was mandatory under the 1988 agree-
ment. He concludes that this court’s mandate required only that
the shareholders determine the shares’ book value on remand.
We disagree.
We did not make the statements in Pennfield I that Andrew
attributes to us. Instead, we pointed out facts that demonstrated
the district court’s error in relying solely on the 1960 agreement
to determine that Pennfield had waived its right of redemp-
tion. As noted, we reasoned that the parties had modified the
1960 agreement by the 1988 agreement. We pointed out that
Pennfield’s deferred redemption of the estate’s shares was only
permitted under the 1988 agreement. We further stated that “it is
plain from the 1988 agreement that it was intended to apply to
the shares that were, at that time, held by R.W.’s estate” and that
Pennfield’s right to waive redemption had been extended by the
1988 agreement.15 We did not state that Pennfield’s right to waive
13 See Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004).
14 See id. (discussing parties’ filing of original actions).
15 Pennfield I, supra note 1, 272 Neb. at 229, 720 N.W.2d at 896.
PENNFIELD OIL CO. v. WINSTROM 	133
Cite as 276 Neb. 123

redemption of the estate’s shares was limited to the tax deferral
period. More important, Andrew’s argument that we recognized
Pennfield’s redemption of the shares was mandatory is inconsis-
tent with our holding. In Pennfield I, we held that Andrew and
Pennfield were not entitled to a decree of specific performance
requiring Bill to transfer the estate’s shares to Pennfield for
redemption. Because we rejected Andrew and Pennfield’s claim
that they were entitled to this specific performance, redemption
was not mandatory.
In their Pennfield I briefs, the main thrust of Andrew’s and
Pennfield’s arguments was that Pennfield’s redemption of the
estate’s remaining shares was mandatory under the 1988 agree-
ment. While recognizing that the estate had made its final estate
tax payment in 2000, we still denied specific performance. We
concluded, in part: “[T]he record indicates that the redemp-
tion was not authorized by the board of directors, nor was the
board of directors permitted to consider whether redemption
should be waived pursuant to the waiver provision of the 1988
agreement.”16 Thus, we implicitly concluded that redemption
of the estate’s remaining shares was not mandatory under the
1988 agreement.
Bill created the 1988 agreement after Pennfield had elected
to redeem the estate’s shares over an extended period because
of the financial hardship of redeeming them all at once. Despite
this election, however, subsection 4(a) of the waiver provi-
sion applied to the shares R.W. had devised to Bill. The 1988
agreement did not preclude the board of directors from waiving
Pennfield’s right to redeem the estate’s remaining shares.
[8] Moreover, even if we had incorrectly concluded in
Pennfield I that redemption was not mandatory, Pennfield and
Andrew did not move for a rehearing. Under the law-of-the-case
doctrine, an appellate court’s holdings on issues presented to it
conclusively settle all matters ruled upon, either expressly or
by necessary implication.17 So, our conclusion that Pennfield’s
redemption of the estate’s remaining shares was not manda-
tory under the 1988 agreement was a final decision and the law
16 Id. at 239, 720 N.W.2d at 903.
17 See New Tek Mfg. v. Beehner, 275 Neb. 951, 751 N.W.2d 135 (2008).
134 	276 NEBRASkA REPORTS

of the case. It was not an issue for the district court to decide
on remand.
4. ISSueS that andreW raISed to the dIStrICt Court but
faIled to appeal Were WaIved on appeal and
not part of our mandate on remand
Andrew also contends that whether Bill and Sydney had a con-
flict of interest that precluded them from voting on Pennfield’s
right to waive redemption was not an issue before this court in
Pennfield I. He argues that the district court had not yet decided
the issues and that these issues were ripe for adjudication
only on remand. For support, Andrew culls this sentence from
Pennfield I: “Whether Pennfield can waive redemption under the
1988 agreement is not an issue in this appeal, given the record
before us.”18 Andrew argues that this sentence shows our man-
date required the district court to determine on remand whether
waiver was permissible and, if so, whether Bill and Sydney
could vote to waive redemption of the estate’s shares.
We agree that the disqualification issues were not before us
in Pennfield I. But we do not agree that the statement Andrew
relies upon allowed him to relitigate issues that the district
court decided against him in its 2004 order. The above state-
ment merely reflects our recognition that the directors had not
yet taken action on Pennfield’s right to waive redemption at the
time we decided Pennfield I. Initially, the directors had tabled
Bill’s 1997 attempt to transfer the stock to himself after Andrew
refused to sign the stock certificate. Later, Andrew’s filing of
this action after Bill’s second attempt to transfer the stock had
prevented the directors from voting on the waiver of redemption.
Consequently, the result of a directors’ vote on the waiver was
not certain when we decided Pennfield I. We first stated: “[T]he
record reflects that while a waiver of Pennfield’s right to redeem
was prepared, none has been adopted.”19 Our second statement—
“Whether Pennfield can waive redemption under the 1988 agree-
ment is not an issue in this appeal, given the record before
18 Pennfield I, supra note 1, 272 Neb. at 229, 720 N.W.2d at 897.
19 Id. at 229, 720 N.W.2d at 896-97.
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Cite as 276 Neb. 123

us”20—was made in the context of rejecting Bill’s argument
regarding construction of the 1988 agreement. In other words,
the issue we concluded was not before us in Pennfield I was that
of Pennfield’s legal rights under the 1988 agreement—not Bill
and Sydney’s right to vote on the disputed shares. We conclude
that the statement does not support Andrew’s argument that we
remanded for the district court to reconsider whether Bill and
Sydney had a conflict of interest. We could not have remanded
the cause for this reason because Pennfield and Andrew did not
raise these issues on appeal.
(a) Andrew and Pennfield Raised Bill’s and Sydney’s
Alleged Disqualification to the District Court
The original pleadings show that before the district court
issued its 2004 order, Pennfield and Andrew raised the specific
issues that they now contend the district court never decided.
One of the claims in Pennfield’s original and amended com-
plaint was that Bill’s attempt to transfer the shares to himself
had violated his fiduciary duty to Pennfield. Pennfield sought
a temporary and permanent injunction preventing Bill from
taking any action regarding Pennfield’s right to redeem the
estate’s shares.
Andrew made the same allegations in his original and
amended counterclaim against Pennfield and in his crossclaim
against Bill. Like Pennfield, he also sought a temporary and
permanent injunction preventing Bill from taking any action
regarding Pennfield’s right to redeem the estate’s shares. In addi-
tion, Andrew specifically alleged that Bill’s acts constituted an
unlawful preference of Bill’s personal interests over Pennfield’s
best interests, that Bill and Sydney were not disinterested direc-
tors, and that Andrew was the only independent director who
could act regarding Pennfield’s rights in the 1988 agreement.
Andrew joined Pennfield’s requests for relief. In addition, he
sought a declaration that Bill’s actions were self-dealing and
taken in bad faith.
As noted, in the district court’s 2004 order, it concluded that
Pennfield had waived its right to redeem R.W.’s shares under the
20 Id. at 229, 720 N.W.2d at 897.
136 	276 NEBRASkA REPORTS

1960 agreement. It reasoned that allowing Pennfield to redeem
them would be inconsistent with R.W. and Bill’s intent that
Bill would remain the majority shareholder. The court denied
Andrew’s other claims regarding Bill and Sydney’s conflicts
of interest.
In Pennfield I, Andrew and Pennfield did not assign as error
the district court’s overruling of their claims that (1) Bill should
be enjoined from taking any action regarding the estate’s shares
because he had breached his fiduciary duties to Pennfield or (2)
Bill and Sydney had conflicts of interest that disqualified them
from voting on the waiver.
Andrew and Pennfield’s failure to assign as error the district
court’s adverse rulings on these issues was perhaps a tacti-
cal decision. As noted, in Pennfield I, they mainly argued that
redemption of the estate’s shares was mandatory. Raising on
appeal Bill’s and Sydney’s alleged disqualification to vote on the
redemption would have arguably been a concession that redemp-
tion was not mandatory. But, as discussed below, they are now
bound by their failure to raise alternative arguments on issues
that the district court decided against them.
(b) Andrew Has Waived Disqualification Issues
Under the Law-of-the-Case Doctrine
[9-12] 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 in a later stage.21 The doctrine
promotes judicial efficiency and protects parties’ settled expec-
tations by preventing parties from relitigating settled issues
within a single action.22 The doctrine applies with greatest force
when an appellate court remands a case to an inferior tribunal.23
Upon remand, a district court may not render a judgment or
take action apart from that which the appellate court’s mandate
directs or permits.24
21 See New Tek Mfg., supra note 17.
22 See Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
23 See id.
24 See VanHorn, supra note 8.
PENNFIELD OIL CO. v. WINSTROM 	137
Cite as 276 Neb. 123

[13] Under the mandate branch of the law-of-the-case doc-
trine, a well-recognized waiver rule has emerged:
[A] decision made at a previous stage of litigation, which
could have been challenged in the ensuing appeal but was
not, becomes the law of the case; the parties are deemed to
have waived the right to challenge that decision, for “[i]t
would be absurd that a party who has chosen not to argue
a point on a first appeal should stand better as regards the
law of the case than one who had argued and lost.”25
[14,15] An issue is not considered waived if a party did not
have both an opportunity and an incentive to raise it in a previ-
ous appeal.26 But this condition was satisfied as Andrew clearly
had incentive to raise the disqualification issues in Pennfield I
after the district court ruled against him on these claims. Also,
we have recognized that an exception to the law-of-the-case
doctrine applies if a party shows a material and substantial
difference in the facts on a matter previously addressed by an
appellate court.27 But Andrew did not allege any new facts to
support his claims, and we need not decide whether to apply
any exceptions here because Andrew did not raise any to the
district court.
(c) Incidental Arguments on Appeal Are Insufficient
to Raise a Claim That the Trial Court Erred
[16] We recognize that Andrew argued on appeal in Pennfield I
that because of Bill’s self-interest, the court erred in failing to
put the burden on Bill to prove that waiver would not harm
Pennfield. But this argument was firmly tethered to Andrew’s
assignment that the district court “[i]mposed the burden of proof
on the wrong party.” He did not argue or assign as error the
25 County of Suffolk v. Stone & Webster Engineering, 106 F.3d 1112, 1117
(2d Cir. 1997), quoting Fogel v. Chestnutt, 668 F.2d 100 (2d Cir. 1981).
Accord, Amado v. Microsoft Corp., 517 F.3d 1353 (Fed. Cir. 2008); Nagle
v. Alspach, 8 F.3d 141 (3d Cir. 1993); Doe v. Chao, 511 F.3d 461 (4th Cir.
2007); U.S. v. Still, 102 F.3d 118 (5th Cir. 1996); U.S. v. Adesida, 129 F.3d
846 (6th Cir. 1997); Pope v. Ransdell, 251 kan. 112, 833 P.2d 965 (1992).
26 See U.S. v. Quintieri, 306 F.3d 1217 (2d Cir. 2002).
27 See, Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998); Latenser v.
Intercessors of the Lamb, Inc., 250 Neb. 789, 553 N.W.2d 458 (1996).
138 	276 NEBRASkA REPORTS

court’s failure to (1) find that Bill and Sydney were disquali-
fied from voting on the waiver or (2) declare Bill’s actions
were taken for purposes of self-dealing. Thus, we would not
have addressed these issues. And the tangential nature of his
burden-of-proof argument does not change our conclusion that
he waived the disqualification issues by failing to raise them in
his first appeal. A point incidentally raised, vaguely referred to,
or given cursory treatment on appeal is insufficient to presume
an unassigned error.28
[17] In sum, an appellant waives claims that were decided
against it by the trial court if the appellant elects not to raise
those issues on appeal. And the appellant cannot preserve those
issues for further proceedings by indirect references to the
claims. Because Andrew and Pennfield waived the disqualifica-
tion issues, they were not part of our mandate on remand.
5. andreW faIled to raISe to the dIStrICt C ourt
alternatIve theorIeS of eStoppel agaInSt bIll
[18] Andrew also contends that Bill is estopped from enforc-
ing Pennfield’s right to waive redemption because he breached
the agreement by attempting to transfer shares to himself without
first obtaining Pennfield’s waiver. Andrew also claims that Bill’s
actions were inconsistent with waiver by failing to call a direc-
tors’ meeting to waive redemption until 2001. These arguments
are different from Andrew’s claim in his original pleadings that
Bill’s statements to third parties that were inconsistent with
waiver estopped him from preventing Pennfield’s redemption of
the shares. But they are not arguments based on new evidence.
They seem to be different theories of estoppel that Andrew failed
to raise to the district court in Pennfield I. In addition, he did not
raise these arguments to the district court on remand. An appel-
late court will not consider an issue on appeal that the trial court
has not decided.29
28 See, McDonald v. Trihub, 173 P.3d 416 (Alaska 2007); McKissick v. Frye,
255 kan. 566, 876 P.2d 1371 (1994).
29 See Clark v. Clark, 275 Neb. 276, 746 N.W.2d 132 (2008).
PENNFIELD OIL CO. v. WINSTROM 	139
Cite as 276 Neb. 123

6. all the ISSueS raISed by andreW on remand
W ere J uStICIable In P ennfield i
We reject Andrew’s claims that his “remaining issues” were
not ripe for adjudication until after our remand in Pennfield I.
[19-21] Ripeness is a justiciability doctrine that courts con-
sider in determining whether they may properly decide a con-
troversy.30 The fundamental principle of ripeness is that courts
should avoid entangling themselves, through premature adju-
dication, in abstract disagreements based on contingent future
events that may not occur at all or may not occur as anticipated.31
Generally, a case is ripe when no further factual development is
necessary to clarify a concrete legal dispute susceptible to spe-
cific judicial relief, as distinguished from an advisory opinion
regarding contingent future events.32
Andrew’s claims that Bill had breached a fiduciary duty to
Pennfield and that Bill and Sydney could not vote on Pennfield’s
waiver were based on undisputed facts—not contingent future
events. In Pennfield I, we specifically stated that “Andrew’s
cross-claims, and Bill and his wife’s petition in intervention,
effectively raised the same issues, so the court had before it all
the parties to a legal dispute that was ripe for disposition.”33
Andrew clearly raised these issues in his original pleadings.
He specifically alleged that his claims were ripe for declara-
tory judgment, and obtained a judgment.34 Similarly, Andrew’s
additional claims that Bill was not entitled to enforce the waiver
30 See Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
31 See, Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 105 S.
Ct. 3325, 87 L. Ed. 2d 409 (1985); Texas v. United States, 523 U.S. 296,
118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998); Bonge v. County of Madison,
253 Neb. 903, 573 N.W.2d 448 (1998).
32 See, Texas v. United States, supra note 31; Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1937); Public Citizen v.
Department of State, 276 F.3d 634 (D.C. Cir. 2002).
33 Pennfield I, supra note 1, 272 Neb. at 235, 720 N.W.2d 900-01 (emphasis
supplied).
34 Compare Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997, 679
N.W.2d 235 (2004).
140 	276 NEBRASkA REPORTS

provision could have been raised to the district court in the
first proceeding.
[22] The law disfavors piecemeal appeals. Multiple appeals
interfere with efficient judicial administration and impose on the
parties costs and risks associated with protracted litigation.35 We
reject Andrew’s arguments that his remaining issues were not
“mature” for adjudication until after we had decided Pennfield I.
Absent allegations of a material and substantial difference in the
evidence, issues that the district court decided against Andrew
that he failed to appeal, and justiciable issues that Andrew failed
to raise to the district court in Pennfield I, were not open to con-
sideration as part of our remand.36
7. the dIStrICt Court CorreCtly ConCluded that
our mandate dId not reopen WaIved ISSueS
Our mandate was not broad enough for the district court to
permit Andrew to relitigate the issues he had waived on appeal.
Although we recognized in Pennfield I that “Andrew filed an
answer and cross-claims, generally alleging breaches of contract
and fiduciary duties by Bill,”37 we did not remand for a new trial,
further proceedings, or reconsideration of these issues.38
We conclude that the district court correctly interpreted our
mandate from Pennfield I when our instructions are read with the
opinion. We instructed the court to grant Andrew and Pennfield
declaratory relief “establishing that Bill and the Estate are sub-
ject to a valid demand for redemption of the [estate’s] stock.”39
The term “subject to” in this context simply meant “liable to”
a valid demand for redemption. Our opinion raised specific
35 See, e.g., Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877
(2007); Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678
N.W.2d 726 (2004).
36 See, generally, 18B Charles Alan Wright et al., Federal Practice and
Procedure § 4478.6 (2d ed. 2002).
37 Pennfield I, supra note 1, 272 Neb. at 225, 720 N.W.2d at 894.
38 Compare, McLeay v. Bergan Mercy Health Sys., 271 Neb. 602, 714 N.W.2d
7 (2006); McKinstry v. County of Cass, 241 Neb. 444, 488 N.W.2d 552
(1992).
39 Pennfield I, supra note 1, 272 Neb. at 239, 720 N.W.2d at 903.
PENNFIELD OIL CO. v. WINSTROM 	141
Cite as 276 Neb. 123

conditions that must be satisfied before a demand for redemp-
tion could be deemed valid:
[T]he record does not affirmatively show that Pennfield
took all the steps necessary to redeem the shares, and
it appears that the district court’s temporary injunction
may have prevented Pennfield’s shareholders and board of
directors from exercising their duties with respect to the
redemption agreements. Thus, we conclude on this record,
it would be unjust to decree specific performance of the
stock transfer redemption agreements.40
As set out in our opinion, those conditions or necessary steps
included a shareholders’ meeting to determine the book value
of the estate’s shares. They also included a requirement that the
directors meet to “consider whether redemption should be waived
pursuant to the waiver provision of the 1988 agreement.”41
Our opinion required the district court to dissolve its injunc-
tion so that Pennfield would have an opportunity to take all the
necessary steps for making a valid demand for redemption of the
estate’s shares. After the directors voted to waive redemption, of
course, there could not be a valid demand for redemption. But
there was no further action required by our mandate, and the
district court’s authority on remand was limited to these require-
ments. The court did not err in concluding that our mandate did
not permit it to consider the additional issues raised by Andrew
on remand.
VI. CONCLUSION
We conclude that we implicitly decided in Pennfield I that
Pennfield’s redemption of the shares in R.W.’s estate was not
mandatory. Although we held that the shares were subject to
Pennfield’s valid demand for redemption, we also set out con-
ditions for a valid demand. We remanded the cause to give the
board of directors an opportunity to vote on whether to waive
Pennfield’s right to redeem the estate’s shares and to give the
shareholders an opportunity to determine the shares’ book value.
The district court did not err in concluding that our mandate
40 Id. at 239-40, 720 N.W.2d at 903.
41 Id. at 239, 720 N.W.2d at 903.
142 	276 NEBRASkA REPORTS

required it to dissolve its prior injunction, which injunction had
prevented the directors from voting, and to allow the waiver vote
to take place.
We reject Andrew’s contention that our mandate required the
district court to consider Andrew’s further claims for preventing
the directors’ vote on the waiver. We conclude that Andrew and
Pennfield waived all claims decided in the district court’s 2004
order that they failed to raise on appeal in Pennfield I. Because
those issues were waived on appeal, they were not part of our
mandate on remand to the district court.
affIrmed .
W rIght, J., not participating.
lynn r. mCneel , appellant and CroSS- appellee , v .
unIon paCIfIC raIlroad C ompany , a CorporatIon ,
appellee and CroSS- appellant .
753 N.W.2d 321
Filed July 18, 2008. 	No. S-07-155.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue regarding any material fact
or the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Rules of Evidence. In proceedings where the Nebraska rules of evidence apply, the
admission of evidence is controlled by rule and not by judicial discretion, except
where judicial discretion is a factor involved in assessing admissibility.
4. Trial: Expert Witnesses: Appeal and Error. The admission of expert testimony
is ordinarily within the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
6. Federal Acts: Railroads: Negligence: Proximate Cause: Proof. To recover
under the Federal Employers’ Liability Act, an employee must prove the
employer’s negligence and that the alleged negligence is a proximate cause of the
employee’s injury.
MCNEEL v. UNION PACIFIC RR. CO. 	143
Cite as 276 Neb. 143