Klingelhoefer v. Monif

KLINGELHOEFER v. MONIF 	675
Cite as 286 Neb. 675
the cause, however, for the court to determine whether to
assess all or any part of the incorrectly assessed fees against
Brydon’s estate.
A ffirmed in pArt, And in pArt reversed
And remAnded for further proceedings
on the issue of fees.
dAvid J. K lingelhoefer, As successor trustee of the
constAnce K. K lingelhoefer revocAble trust And
As mAnAger of constAnce K lingelhoefer, l.l.c.,
Appellee, v. K erry l. monif et Al., AppellAnts.
839 N.W.2d 247
Filed October 11, 2013. 	No. S-12-1117.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, upon which an appellate court reaches a conclusion independent of the
trial court.
2. 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.
3. Courts: Judgments: Appeal and Error. A district court has an unqualified duty
to follow the mandate issued by an appellate court and must enter judgment in
conformity with the opinion and judgment of the appellate court.
4. ____: ____: ____. The judgment of the appellate court is a final judgment in the
cause, and the entry thereof in the lower court is a purely ministerial act.
5. Judgments. After a mandate is issued, no modification of the judgment so
directed can be made, nor may any provision be engrafted on or taken from it.
6. ____. A mandate is conclusive on the parties, and no judgment or order different
from, or in addition to, the mandate can have any effect.
7. Attorney Fees: Appeal and Error. An appellate court may award attorney fees
on appeal regardless of whether they were requested or ordered in the trial court.
8. Attorney Fees: Words and Phrases. In the context of Neb. Rev. Stat. § 25-824
(Reissue 2008), a frivolous action is one in which a litigant asserts a legal posi-
tion so wholly without merit as to be ridiculous.
9. Actions. Any doubt whether a legal position is frivolous or taken in bad faith
should be resolved for the party whose legal position is in question.
Appeal from the District Court for Buffalo County: John p.
icenogle, Judge. Vacated and dismissed.
David 	J. 	Lanphier, 	of 	Broom, 	Clarkson, 	Lanphier 	&
Yamamoto, for appellants.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:38 AM CST

676 	286 NEBRASKA REPORTS
Daniel E. Klaus, of Rembolt Ludtke, L.L.P., for appellee.
Wright, 	connolly, 	stephAn, 	mccormAcK, 	and 	miller-
lermAn, JJ.
mccormAcK, J.
NATURE OF CASE
David J. Klingelhoefer, as successor trustee of the Constance
K. Klingelhoefer Revocable Trust (Trust) and as manager of
Constance Klingelhoefer, L.L.C. (LLC), filed a declaratory
action with the district court. Constance K. Klingelhoefer’s
other children, as beneficiaries of the Trust and members of
the LLC (the beneficiaries), filed counterclaims for a declara-
tory judgment and for an accounting. The district court entered
judgment for David on the declaratory judgment actions and
held a trial for an accounting. After trial, the district court
generally found in favor of David. The beneficiaries appealed,
and the Nebraska Court of Appeals affirmed in an unpublished
memorandum opinion.1 After the Court of Appeals issued its
mandate, David moved for attorney fees and postjudgment
interest and the district court entered an order in his favor. The
beneficiaries now appeal.
bAcKground
In the first appeal, the Court of Appeals set out the follow-
ing facts, which have been relied upon and summarized for
purposes of this appeal: Constance was the mother of 11 chil-
dren. Before her death in 2006, Constance executed a number
of documents to effect an estate. To reduce taxes, she created
the LLC and transferred her real estate to the LLC. She gave
interests in the LLC to each of her 11 children and kept an
interest for herself. To avoid probate, Constance created a trust.
Constance also created a will, directing that upon her death,
any remaining real or personal property in her possession be
transferred to the Trust.
After her death, her son David, as trustee of the Trust
and as manager of the LLC, brought an action seeking a
1 Klingelhoefer v. Monif, No. A-11-056, 2012 WL 148730 (Neb. App. Jan.
17, 2012) (selected for posting to court Web site).

KLINGELHOEFER v. MONIF 	677
Cite as 286 Neb. 675
declaratory judgment which would allow the sale of the real
estate pursuant to “Article Fourth” of the Trust. The benefi-
ciaries brought counterclaims for a finding that provisions
of the LLC should govern disposition of the real property
and requested an accounting. Both parties moved for sum-
mary judgment on the question of whether the Trust docu-
ment or the LLC document should govern disposition of the
real property.
The district court found that the only construction of the
Trust and LLC documents that would effectuate Constance’s
intent would be for the terms of the Trust to control the dis-
position. The case proceeded to trial on the request for an
accounting. The court found that David did not engage in self-
dealing and that he did not breach his fiduciary duties. In par-
ticular, the court found that David did not breach his fiduciary
duty by charging the Trust and LLC for the attorney fees he
incurred in pursuing the declaratory judgment and defending
the accounting claims. The beneficiaries appealed and posted
a supersedeas bond.
In an unpublished opinion, the Court of Appeals affirmed.
On April 4, 2012, the Court of Appeals issued its mandate.
The mandate stated that “the judgment which you [the district
court] rendered has been affirmed by the Court of Appeals.”
Furthermore, the mandate ordered that the district court “shall,
without delay, proceed to enter judgment in conformity with
the judgment and opinion of this court.”
On April 9, 2012, David filed with the district court a
motion for an award of costs, expenses, and attorney fees
against the beneficiaries under Neb. Rev. Stat. §§ 25-1705
et seq. (Reissue 2008 & Cum. Supp. 2012) and 25-1914 to
25-1918 and 30-3893 (Reissue 2008). The motion further
requested payment out of the supersedeas bond and, if that was
inadequate, then for judgment against the beneficiaries.
A hearing was held on the motion on July 6, 2012. David
offered into evidence the affidavit of his attorney, which
addressed the costs and attorney fees incurred during the law-
suit, and the affidavit of a certified public accountant, which
addressed the damages suffered by the extended delay in the
sale of the real estate. In response, the beneficiaries offered

678 	286 NEBRASKA REPORTS
the affidavit of a certified public accountant in opposition to
the accountant’s affidavit offered by David.
On October 29, 2012, the district court issued its order.
The district court found that the request being made to
recover attorney fees, expenses, and interest was proper under
§ 30-3893. It also found that the sale of property was in fact
delayed because of the continuing litigation of the benefici-
aries. The court awarded David postjudgment interest in the
amount of $80,531.35, costs in the amount of $818.40, and
reasonable attorney fees in the amount of $164,728.86. The
beneficiaries now appeal.
Assignments of error
The beneficiaries have assigned, restated and summarized,
that the district court erred in (1) awarding David costs,
expenses, and attorney fees for the trial and appeal after the
mandate from the Court of Appeals; (2) granting interest, costs,
expenses, and attorney fees at a hearing on the supersedeas
bond which exceeds the terms of the coverage under applicable
law; and (3) not granting the beneficiaries’ request for attorney
fees pursuant to Neb. Rev. Stat. § 25-824 (Reissue 2008) for
David’s filing of the postjudgment motion for attorney fees and
costs, which they contend was frivolous.
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law, upon
which an appellate court reaches a conclusion independent of
the trial court.2
ANALYSIS
The beneficiaries argue that the district court erred when it
awarded David costs, expenses, and attorney fees for the trial
and appeal because the request was made after the Court of
Appeals had filed its mandate. We agree.
[2-6] We have stated that 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.3 A district court
2 Gabel v. Polk Cty. Bd. of Comrs., 269 Neb. 714, 695 N.W.2d 433 (2005).
3 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

KLINGELHOEFER v. MONIF 	679
Cite as 286 Neb. 675
has an unqualified duty to follow the mandate issued by an
appellate court and must enter judgment in conformity with
the opinion and judgment of the appellate court.4 The judg-
ment of the appellate court is a final judgment in the cause,
and the entry thereof in the lower court is a purely ministe-
rial act.5 No modification of the judgment so directed can be
made, nor may any provision be engrafted on or taken from
it.6 That order is conclusive on the parties, and no judgment or
order different from, or in addition to, the mandate can have
any effect. 7
Here, the issue is whether the award of costs, expenses,
and attorney fees was outside the scope of the mandate. The
construction of a mandate issued by an appellate court pre-
sents a question of law on which an appellate court is obli-
gated to reach a conclusion independent of the determination
reached by the court below.8 The mandate given by the Court
of Appeals is clear; the district court’s judgment had been
affirmed. The district court was to enter judgment in conform-
ity with the Court of Appeals’ judgment and opinion, without
delay. The Court of Appeals did not award the costs, postjudg-
ment interest, and attorney fees requested by David. Therefore,
David’s motion was attempting to obtain further relief, which
he had not previously requested from the district court or the
Court of Appeals. As we stated in VanHorn v. Nebraska State
Racing Comm.,9 when a request for damages, costs, and fees
is outside the mandate of the appellate court, the district court
lacks jurisdiction to rule on such a motion.
The district court was, therefore, without jurisdiction to
consider the motion and should have dismissed it without
4 See Custom Fabricators v. Lenarduzzi, 259 Neb. 453, 610 N.W.2d 391
(2000).
5 See K N Energy, Inc. v. Cities of Broken Bow et al., 248 Neb. 112, 532
N.W.2d 32 (1995).
6 VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d 651
(2007).
7 Id.
8 Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 651 (2001).
9 VanHorn, supra note 6.

680 	286 NEBRASKA REPORTS
prejudice.10 If David had a further cause of action arising out of
the Court of Appeals’ decision, he needed to file a new lawsuit
and present evidence in that case.11 He may not, however, sim-
ply extend his request for relief beyond that which was initially
determined by the Court of Appeals.12 Therefore, we vacate the
October 29, 2012, order granting David costs, expenses, and
attorney fees.
[7] Finally, we must also address whether the motion filed
by David was frivolous. On appeal, the beneficiaries moved
this court for an award of attorney fees pursuant to § 25-824,
claiming that David’s motion for costs, expenses, and attorney
fees was wholly without merit. Although the beneficiaries
did not seek attorney fees at the hearing before the district
court, an appellate court may award attorney fees on appeal
regardless of whether they were requested or ordered in the
trial court.13
[8,9] Section 25-824 provides generally that a court can
award reasonable attorney fees and court costs against any
attorney or party who has brought or defended a civil action
that alleges a claim or defense that a court determines is frivo-
lous or made in bad faith.14 In the context of § 25-824, a frivo-
lous action is one in which a litigant asserts a legal position so
wholly without merit as to be ridiculous.15 Any doubt whether
a legal position is frivolous or taken in bad faith should be
resolved for the party whose legal position is in question.16
Sanctions should not be imposed except in the clearest cases.17
10 See State v. Shelly, 279 Neb. 728, 782 N.W.2d 12 (2010).
11 Gates v. Howell, 211 Neb. 85, 317 N.W.2d 772 (1982).
12 Id.
13 See Foiles v. Midwest Street Rod Assn. of Omaha, 254 Neb. 552, 578
N.W.2d 418 (1998).
14 Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
N.W.2d 252 (2010).
15 See Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d
469 (2011).
16 Id.
17 First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736
(1990).

KLINGELHOEFER v. MONIF 	681
Cite as 286 Neb. 675
Here, David’s motion was without merit because the district
court lacked jurisdiction. But, the fact that the district court
granted David’s motion indicates that such a legal position
should not be deemed frivolous. We conclude that the motion
was not brought in bad faith. We decline to award attorney fees
on appeal to the beneficiaries on the ground that the motion
was frivolous.
CONCLUSION
For the reasons discussed, we vacate the district court’s
order granting David costs, expenses, and attorney fees and
deny the beneficiaries’ request for attorney fees pursuant to
§ 25-824.
vAcAted And dismissed.
heAvicAn, C.J., and cAssel, J., not participating.