TransCanada Keystone Pipeline v. Tanderup , 305 Neb. 493 ( 2020 )


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    06/12/2020 08:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
    Cite as 
    305 Neb. 493
    TransCanada Keystone Pipeline, LP, appellant,
    v. Arthur R. Tanderup and Helen J. Tanderup,
    husband and wife, and John Doe, appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Frank C. Morrison, also known as Frank
    Morrison, and Lynn H. Morrison, husband
    and wife, and John Doe, appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Jerry Carpenter and Charlayne Carpenter,
    husband and wife, et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Germaine G. Berry et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Cottonwood Ridge LLC et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Cheri G. Blocher and Michael J. Blocher,
    wife and husband, et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Frankie Maughan, also known as Frankie
    Maughan, Jr., et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Todd J. Stelling and Lisa J. Stelling,
    husband and wife, and John Doe,
    appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Karen G. Berry and John Doe, appellees.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
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    TransCanada Keystone Pipeline, LP, appellant,
    v. Richard E. Stelling et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Joshua R. Stelling and John Doe, appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Robert R. Krutz and Beverly J. Krutz,
    husband and wife, et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. CHP 4 Farms, LLC, et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Carol J. Manganaro, Personal Representative
    of the Estate of Florian W. Dittrich,
    et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Carol J. Manganaro et al., appellees.
    TransCanada Keystone Pipeline, LP, appellant,
    v. Tree Corners Farm, LLC, et al., appellees.
    ___ N.W.2d ___
    Filed April 10, 2020.   Nos. S-19-493 through S-19-508.
    1. Judgments: Appeal and Error. The construction of a mandate issued
    by an appellate court presents a question of law on which an appellate
    court is obligated to reach a conclusion independent of the determination
    reached by the court below.
    2. Courts: Appeal and Error. In cases where no statement of errors was
    filed and the district court reviewed for plain error, the higher appellate
    court likewise reviews for plain error only.
    3. Appeal and Error: Words and Phrases. Plain error exists where there
    is an error, plainly evident from the record but not complained of at
    trial, which prejudicially affects a substantial right of a litigant and is of
    such a nature that to leave it uncorrected would cause a miscarriage of
    justice or result in damage to the integrity, reputation, and fairness of the
    judicial process.
    4. ____: ____. In appellate procedure, a “remand” is an appellate court’s
    order returning a proceeding to the court from which the appeal origi-
    nated for further action in accordance with the remanding order.
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    TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
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    5. 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 appellate court.
    6. Judgments: Appeal and Error. A reversal of a judgment and the
    remand of a cause for further proceedings not inconsistent with the opin-
    ion, without specific direction to the trial court as to what it shall do, is
    a general remand and the parties stand in the same position as if the case
    had never been tried.
    7. Courts: Judgments: Appeal and Error. The exception to this general
    rule placing the parties back where they stood before the appeal after
    such a general remand order, is that if the undisputed and admitted facts
    are such that but one judgment could be rendered, the trial court should
    enter such a judgment, notwithstanding the mandate did not specifically
    direct the trial court’s action.
    8. Appeal and Error. Under the law‑of‑the‑case doctrine, the holdings of
    an appellate court on questions presented to it in reviewing proceedings
    of the trial court become the law of the case; those holdings conclu-
    sively settle, for purposes of that litigation, all matters ruled upon, either
    expressly or by necessary implication.
    9. Courts: Judgments: Appeal and Error. A district court has an unquali-
    fied 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.
    10. ____: ____: ____. A lower court may not modify a judgment directed
    by an appellate court; nor may it engraft any provision on it or take any
    provision from it.
    11. Judgments: Appeal and Error. No judgment or order different from, or
    in addition to, the appellate mandate can have any effect.
    12. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial
    court is without power to affect rights and duties outside the scope of the
    remand from an appellate court, any order attempting to do so is entered
    without jurisdiction and is void.
    13. Courts: Judgments. Each person who takes part in the judicial process
    has a substantial right to have the courts’ orders enforced.
    Appeals from the District Court for Antelope County, James
    G. Kube, Judge, on appeal thereto from the County Court
    for Antelope County, Donna F. Taylor, Judge. Judgment of
    District Court affirmed.
    James G. Powers and Patrick D. Pepper, of McGrath, North,
    Mullin & Kratz, P.C., L.L.O., for appellant.
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    TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
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    305 Neb. 493
    David A. Domina and Brian E. Jorde, of Domina Law
    Group, P.C., L.L.O., for appellees.
    Heavican, C.J., Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    This is a series of consolidated cases in which TransCanada
    Keystone Pipeline, LP (TransCanada), is seeking review of
    intermediate appellate orders entered by the Antelope County
    District Court, which reversed the Antelope County Court’s
    denial of appellees’ motions for attorney fees. These con-
    solidated cases are factually related to a series of cases already
    decided by this court. 1 The question at issue in these cases is
    whether the county court plainly erred by entering a judgment
    on remand without holding an evidentiary hearing.
    BACKGROUND
    These appeals are from a series of condemnation proceed-
    ings initiated by TransCanada. Proceedings took place in sev-
    eral counties through which TransCanada planned to con-
    struct an oil pipeline, including Antelope County. TransCanada
    ultimately voluntarily dismissed all of its condemnation
    actions without prejudice, because several landowners in York
    County challenged the constitutionality of the proceedings and
    TransCanada elected to pursue approval for the pipeline route
    by the Public Service Commission.
    As in the actions filed in other counties, the condemnees in
    the Antelope County actions moved for an award of attorney
    fees and costs under Neb. Rev. Stat. § 76‑726 (Reissue 2018).
    Following a hearing, the Antelope County Court originally
    found in favor of the condemnees on their motions for attorney
    fees. In making its decision, the county court reviewed the
    1
    See TransCanada Keystone Pipeline v. Nicholas Family, 
    299 Neb. 276
    ,
    
    908 N.W.2d 60
    (2018).
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    condemnees’ affidavits that were received, over TransCanada’s
    objections. TransCanada made several objections, including
    foundation, as well as a general hearsay objection to all of the
    affidavits submitted. The Antelope County Court overruled a
    majority of the objections. It agreed to disregard the last para-
    graph of each of the condemnees’ affidavits, which contained
    gratuitous praise for their counsel, but otherwise received the
    affidavits into evidence. All of the evidence on the motion for
    attorney fees was presented via affidavit.
    TransCanada appealed the Antelope County Court’s order
    granting attorney fees to the Antelope County District Court,
    which determined that the Antelope County condemnees’ affi-
    davits submitted in support of their motions were inadmissible
    hearsay. The district court reversed the award of attorney fees,
    but stated that it was unsure to what extent the county court
    had relied on the affidavits. In each case, the district court
    remanded the matter for a “rehearing on the merits.” The dis-
    trict court’s orders to remand were not appealed.
    In similar cases in Holt and York Counties, the respective
    district courts had similarly held that the affidavits were inad-
    missible hearsay and remanded for a new hearing. However,
    unlike the Antelope County District Court’s order, TransCanada
    appealed the orders of remand of the Holt County District Court
    and the York County District Court. Accordingly, TransCanada
    requested to stay the mandate of remand from the district
    courts of Holt and York Counties.
    In contrast, TransCanada did not request to stay the man-
    dates from the Antelope County District Court. The Antelope
    County Court received the district court’s mandates on March
    21, 2017, and entered orders spreading the mandates on
    March 29.
    Before the mandated rehearing was held, the parties made
    a stipulated request for a continuance to await resolution
    of TransCanada Keystone Pipeline v. Nicholas Family. 2 The
    2
    See
    id. - 498
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    TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
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    stipulated request stated: “These cases are closely associ-
    ated with cases in the Nebraska Court of Appeals, and the
    Court of Appeals’ rulings on those cases may impact the mat-
    ters before this Court.” The Antelope County Court granted
    the continuance.
    Nicholas Family consisted of 40 appeals from 40 different
    condemnation actions, which we consolidated into 4 appeals
    decided in 1 opinion. At issue in the appeals was the fact that
    the condemnees had requested attorney fees and costs under
    § 76‑726. The condemnees, and their counsel, had in all cases
    submitted affidavits in support of the motions attesting to the
    fees and their reasonableness, and TransCanada had objected
    to all the affidavits on the basis of hearsay. 3 The county
    courts had overruled the objections and granted the requests
    for attorney fees. The district courts were split on affirm-
    ing the awards of attorney fees and rejecting the affidavits
    as hearsay.
    We held in Nicholas Family that the submission of affida-
    vits was an acceptable way to introduce evidence in a motion
    for attorney fees. However, we also found that the evidence
    presented by the condemnees in those cases was insufficient to
    support the award of attorney fees. 4 We explained:
    No written fee agreement or invoice for legal services was
    offered as evidence in support of the motions for attorney
    fees and costs. Nor did the landowners, in their affidavits,
    aver any specific amount owed by them to counsel.
    We observe that affidavits from one or both counsel
    of record regarding the attorney fees actually incurred by
    the landowners were offered and admitted as evidence
    before each of the county courts. Under certain circum-
    stances, such affidavits might supplement other evidence
    admitted at an attorney fees hearing and support the
    award of fees.
    3
    See
    id. 4 See
    id.
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    But in this case, these affidavits from counsel were not
    specific as to any individual landowner and‑‑with respect
    to work done and fees charged‑‑were virtually identical
    to one another, including seeking payment of the same
    amount of money based upon the same number of hours
    of work. In fact, these affidavits raised more questions
    than they answered, notably about the nature of the fee
    agreement between the landowners and counsel, whether
    any fee agreement was akin to a contingency agreement,
    and the nature of how attorney fees sought in these emi-
    nent domain proceedings might be related to the York
    County constitutional challenge. As such, we conclude
    that on these facts, these affidavits are insufficient to sup-
    port the award of attorney fees.
    Because the landowners’ affidavits did not allege the
    amount each had actually incurred, and because there
    was no other evidence sufficient to support the award of
    attorney fees, we find that the county courts’ awards were
    in error. 5
    Following our ruling in Nicholas Family, the Antelope
    County Court held a preliminary hearing to consider the argu-
    ments of counsel with regard to how these matters should be
    reheard. The condemnees argued that the district court ordered
    a rehearing on the merits and that the county court should con-
    duct a new evidentiary hearing before ruling on the motions for
    attorney fees.
    Relying on Jeffres v. Countryside Homes, 6 TransCanada
    argued that the county court should exercise its discretion to
    limit the scope of the evidence presented at a new hearing to
    the same content that was in the original affidavits. In Jeffres,
    we said that when a case is remanded for consideration of
    damages, it is within the sound discretion of the trial court to
    decide the issue on evidence contained in the record already
    5
    Id. at 287‑88,
    908 N.W.2d at 68.
    6
    Jeffres v. Countryside Homes, 
    220 Neb. 26
    , 
    367 N.W.2d 728
    (1985).
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    made at the first trial, or to take additional evidence or to try
    the case de novo.
    TransCanada then relied on deNourie & Yost Homes v.
    Frost 7 to argue that the county court was not required to hold a
    rehearing because, under the facts limited to the same content
    that was in the original affidavits, it was undisputed that only
    one judgment could be rendered. In deNourie & Yost Homes,
    we discussed an exception to the general rule that a remand on
    the merits resets the parties back to their position before the
    trial. We said that if the facts are not in dispute and only one
    judgment could be rendered, a lower court could enter an order
    without holding a rehearing. 8
    After considering the arguments at the preliminary hear-
    ing, the county court concluded a rehearing was unnecessary
    because Nicholas Family already established that the type
    of evidence to be presented by the condemnees was insuf-
    ficient to support awards of attorney fees. The county court
    concluded that the affidavits in this case were very similar to
    those in Nicholas Family, because they were all prepared by
    the same counsel and used nearly identical language save for
    the names of the landowners and the paragraph identifying
    their property. The court noted that, in fact, both TransCanada
    and the condemnees had stipulated in the motion for continu-
    ance that the present cases “were closely associated with the
    cases pending on appeal and the appellate court’s ruling may
    impact matters before this court.” The court relied on State
    v. Henk 9 to determine that a new hearing would be limited
    to presentation of the same evidence found in the original
    affidavits. In Henk, we held that when a postconviction
    claim is remanded, the lower court does not have discretion
    to accept evidence on claims different from the claim in the
    remand order.
    7
    deNourie & Yost Homes v. Frost, 
    295 Neb. 912
    , 
    893 N.W.2d 669
    (2017).
    8
    See
    id. 9 State
    v. Henk, 
    299 Neb. 586
    , 
    909 N.W.2d 634
    (2018).
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    The condemnees appealed the county court’s decision deny-
    ing their request for attorney fees to the district court, but failed
    to file a statement of errors. Accordingly, the district court’s
    review was limited to plain error. The district court found that
    the county court had plainly erred by not having an evidentiary
    hearing on attorney fees as directed in the district court’s origi-
    nal mandates. The district court reversed the county court’s
    decision and remanded the matter with instructions to conduct
    an evidentiary hearing. TransCanada now appeals the district
    court’s rulings.
    ASSIGNMENTS OF ERROR
    TransCanada asserts that the district court erred by holding
    (1) that the county court’s denial of the motion for attorney
    fees was plain error and (2) that the county court was required
    to hold a new evidentiary hearing in which additional evidence
    could be offered.
    STANDARD OF REVIEW
    [1] The construction of a mandate issued by an appellate
    court presents a question of law on which an appellate court is
    obligated to reach a conclusion independent of the determina-
    tion reached by the court below. 10
    [2] In cases where no statement of errors was filed and the
    district court reviewed for plain error, the higher appellate
    court likewise reviews for plain error only. 11
    [3] Plain error exists where there is an error, plainly evident
    from the record but not complained of at trial, which prejudi-
    cially affects a substantial right of a litigant and is of such a
    nature that to leave it uncorrected would cause a miscarriage
    of justice or result in damage to the integrity, reputation, and
    fairness of the judicial process. 12
    10
    State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
    (2017).
    11
    Houser v. American Paving Asphalt, 
    299 Neb. 1
    , 
    907 N.W.2d 16
    (2018).
    12
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    TRANSCANADA KEYSTONE PIPELINE v. TANDERUP
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    ANALYSIS
    As the district court pointed out in the second order, once
    the affidavits were ruled as inadmissible, no evidence remained
    to support a decision from the county court. And because
    TransCanada did not appeal the district court’s orders of remand
    after the first appeal, with the specific mandate for a “rehear-
    ing on the merits” that became the law of the case, the county
    court lacked the power to ignore that mandate. We agree with
    the district court’s second orders that it was plain error for
    the county court to fail to hold a new evidentiary hearing in
    accord­ance with the district court’s mandates.
    [4,5] In appellate procedure, a “remand” is an appellate
    court’s order returning a proceeding to the court from which
    the appeal originated for further action in accordance with the
    remanding order. 13 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. 14 We have consistently
    held that when a lower court is given specific instructions on
    remand, it must comply with the specific instructions and has
    no discretion to deviate from the mandate. 15
    The duty of the lower court springs from the public interest
    in having a finality to the litigation process and final judg-
    ments of the court. In Jurgensen v. Ainscow, 16 we explained
    this duty in the context of an appeal from a district court order
    that entered judgment from a mandate by the Supreme Court.
    In that case, we said:
    “When a particular judgment is directed by the appellate
    court, the lower court is not acting of its own motion,
    but in obedience to the order of its superior. What that
    13
    Molina v. Salgado‑Bustamante, 
    21 Neb. Ct. App. 75
    , 
    837 N.W.2d 553
    (2013).
    14
    Id. 15 See
    id. See, also, 
    Henk, supra note 9; Robertson v. Jacobs Cattle Co.,
    
    292 Neb. 195
    , 
    874 N.W.2d 1
    (2015); VanHorn v. Nebraska State Racing
    Comm., 
    273 Neb. 737
    , 
    732 N.W.2d 651
    (2007).
    16
    Jurgensen v. Ainscow, 
    160 Neb. 208
    , 
    69 N.W.2d 856
    (1955).
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    superior says it shall do, it must do, and that alone. Public
    interests require that an end shall be put to litigation,
    and when a given cause has received the consideration
    of this court, its merits determined, and then remanded
    with specific directions, the court to which such mandate
    is directed has no power to do anything but to obey the
    mandate; otherwise, litigation would never be ended, and
    the supreme tribunal of the state would be shorn of that
    authority over inferior tribunals with which it is invested
    by our fundamental law. . . .” 17
    Application of this rule in the present cases places the respon-
    sibility on the county court to comply with the district court’s
    mandates, which ordered it to hold a new hearing.
    [6,7] TransCanada argues that in each case the order was not
    a specific mandate, but a general remand, and that an excep-
    tion applies such that no further hearing is necessary because
    the undisputed facts are such that but one judgment could be
    rendered. A reversal of a judgment and the remand of a cause
    for further proceedings not inconsistent with the opinion, with-
    out specific direction to the trial court as to what it shall do,
    is a general remand and the parties stand in the same position
    as if the case had never been tried. 18 The exception to this
    general rule placing the parties back where they stood before
    the appeal after such a general remand order, is that if the
    undisputed and admitted facts are such that but one judgment
    could be rendered, the trial court should enter such a judgment,
    notwithstanding the mandate did not specifically direct the trial
    court’s action. 19
    Thus, under this exception, in Bohmont v. Moore, 20 we
    upheld a district court order applying a rule of law concern-
    ing negligence to enter judgment without holding a trial after
    17
    Id. at 211,
    69 N.W.2d at 858.
    18
    deNourie & Yost Homes, supra note 7.
    19
    Bohmont v. Moore, 
    141 Neb. 91
    , 
    2 N.W.2d 599
    (1942).
    20
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    the court received a general remand order. Bohmont, and a
    series of related cases, initially involved a breach of a bailment
    contract action when cash placed inside the plaintiff’s safety
    deposit box at the bank went missing. 21 The plaintiff named the
    bank and two employees as defendants. The trial court directed
    a verdict in favor of the two employees, and the complaint
    against the bank proceeded to trial. At trial, the jury held the
    bank responsible for the loss of the money in the safety deposit
    box. 22 On appeal, we applied tort law and concluded that the
    bank could not be held responsible and remanded. 23 Our man-
    date stated that “‘the judgment rendered by you be reversed
    . . . and the cause remanded for further proceedings.’” 24
    On remand, the plaintiff pointed out that our decision revers-
    ing the judgment relied on tort law and that the action was
    brought as a breach of contract; thus, portions of our opin-
    ion implied that he should have a new trial. 25 The trial court
    reviewed the plaintiff’s argument and determined that the
    rule from tort law applied to the action because the plaintiff’s
    breach of contract claim also asserted negligence. The trial
    court entered a directed verdict in favor of the bank without
    holding a new trial. The plaintiff again appealed and argued
    that portions of our first opinion implied that the plaintiff
    should have received a new trial. 26 In our opinion from the
    second appeal, we held that nothing in our first remand order
    prevented the trial court from applying the rule of law to the
    undisputed facts and entering judgment in favor of the bank.
    Thus, we affirmed the district court’s decision. 27
    21
    See Bohmont v. Moore, 
    138 Neb. 784
    , 
    295 N.W. 419
    (1940); Bohmont v.
    Moore, 
    138 Neb. 907
    , 
    297 N.W. 559
    (1941); and Bohmont, supra note 19.
    22
    See Bohmont, supra note 19.
    23
    See
    id. 24 Id.
    at 
    92, 2 N.W.2d at 600
    .
    25
    See Bohmont, supra note 19.
    26
    Id. 27 Id.
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    In contrast, we found in deNourie & Yost Homes that this
    exception did not apply to the general remand order in that
    case. 28 A contractor had sued a homeowner and a bank for
    several claims, including breach of contract, fraud, and civil
    conspiracy related to the construction of a home. The trial
    court originally granted summary judgment in favor of the
    homeowner and the bank, and the contractor appealed. In the
    first appeal, we found that summary judgment was inappropri-
    ate on the claims of fraud and civil conspiracy and remanded
    for “further proceedings on D & Y’s claims of fraud and civil
    conspiracy.” 29
    On remand, the district court allowed the contractor to amend
    his complaint and the court considered a new motion for sum-
    mary judgment on the amended complaint. 30 The district court
    granted the motion for summary judgment and the contractor
    again appealed, arguing in the second appeal that summary
    judgment on remand was inappropriate because our general
    mandate implied that the contractor was entitled to a trial only
    on the claims that were remanded. In deNourie & Yost Homes,
    we clarified that the general rule did not require a trial, only
    that the parties be put in the same position as if the case had
    never been tried. 31 Under the procedural facts of deNourie &
    Yost Homes, that meant the district court was free to consider
    new pretrial motions and was not obligated to proceed to a
    trial if summary judgment on a new motion was warranted. 32
    We also noted in deNourie & Yost Homes the exception to
    the rule, stated above, and then concluded that the excep-
    tion was not applicable under the facts of the case. 33 Instead,
    28
    deNourie & Yost Homes, supra note 7.
    29
    See deNourie & Yost Homes v. Frost, 
    289 Neb. 136
    , 163, 
    854 N.W.2d 298
    ,
    320 (2014).
    30
    deNourie & Yost Homes, supra note 7.
    31
    See
    id. 32 See
    id.
    33
    See 
    id.
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    the remand had left open a number of possible actions: the
    court was free to hold a trial, to receive additional evidence,
    or to decide the case without receiving additional evidence. 34
    We find no merit to TransCanada’s assertion in each case
    that the district court’s remand order was a general remand and
    that the county court correctly applied the exception articu-
    lated in Bohmont and vacated the award of attorney fees and
    dismissed the motions without a hearing. Most fundamentally,
    we find no merit to this argument because the district court’s
    orders were not a general remand. It was not a remand of the
    cause for further proceedings not inconsistent with the opinion,
    without specific direction to the trial court as to what it shall
    do. Rather, the district court remanded the causes for a “rehear-
    ing on the merits.” In each case, the opinion issued by the
    district court specified: “The Order on attorney fees and costs
    is reversed. The matter is remanded to the County Court for
    rehearing consistent with the Order herein,” after stating in the
    order that “a rehearing on the merits is appropriate.” (Emphasis
    supplied.) In the context of the rest of the opinion in each case,
    it is clear that the district court’s order was a specific man-
    date for a new evidentiary hearing on attorney fees. When an
    appellate court’s mandate makes its opinion a part thereof by
    reference, the lower court should examine the opinion with the
    mandate to determine the judgment to be entered or the action
    to be taken thereon. 35
    The county court erred in circumventing this specific man-
    date by concluding that if a rehearing were held, the con-
    demnees would be limited to presenting the same evidence
    that was presented in the original affidavits, and that the facts
    would be undisputed under such evidence that the motion for
    attorney fees would be unsupported. The county court arrived
    at its conclusion after reasoning that “the evidence in these
    Antelope County cases is so substantially similar to those facts
    34
    See
    id. 35 Henk,
    supra note 9.
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    discussed and referred to in the [Nicholas Family] case as to be
    identical.” Because the county court believed that the evidence
    was identical, it also reasoned that the same judgment was
    required in the present cases as in Nicholas Family. 36
    To support this assertion, the county court order cited to
    our decision in Henk, but Henk is inapposite to the cases at
    bar. 37 In Henk, we had previously decided in a memorandum
    opinion on appeal from the denial of an evidentiary hearing
    that the defendant was entitled to an evidentiary hearing on
    a postconviction claim stated in his original postconviction
    application, and we remanded the cause for that specific pur-
    pose. After our mandate was spread and before the hearing on
    remand, the district court granted the defendant leave to amend
    his postconviction application to include additional claims for
    postconviction relief. In an appeal by the defendant following
    denial of postconviction relief, we concluded that the district
    court erred in hearing evidence on issues for which the case
    was not remanded. 38
    Henk thus precludes a lower court from hearing evidence of
    claims outside the scope of the remand. It reiterates that the
    lower court must comply with a specific mandate and neither
    do less nor more than what the mandate orders. Nothing in
    our holding in Henk indicates that a court should narrow the
    scope of evidence to prevent a party from presenting all evi-
    dence relevant to the issue specified to be reheard on remand,
    let alone that the evidence should be limited to the substance
    of that presented in an original hearing. Indeed, in Henk, no
    hearing was held prior to the appeal. Henk illustrates simply
    that the parties cannot use remand as an opportunity to expand
    the issues by amending the pleadings and holding a hearing on
    claims beyond those specified in the mandate remanding for an
    evidentiary hearing.
    36
    Nicholas Family, supra note 1.
    37
    Henk, supra note 9.
    38
    See
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    Nothing in the Antelope County District Court’s specific
    mandates for a rehearing on the merits of the motions for attor-
    ney fees suggested that the evidence presented in the new hear-
    ing should be limited to the evidence presented in the first. By
    concluding that the ordered “rehearing” was pointless, because
    the evidence would be so limited and would be insufficient, the
    county court deviated from the district court’s mandates, which
    it lacked the authority to do.
    The Bohmont exception could not apply, because the district
    court’s mandates were not a general remand of a cause for
    further proceedings not inconsistent with the opinion, without
    specific direction to the trial court as to what it shall do. 39
    Rather, they were specific mandates.
    But even if the Bohmont exception could apply, the county
    court erred in concluding the evidence was undisputed, because
    the district court ruled on appeal that the affidavits were inad-
    missible hearsay. The county court reasoned that “the evidence
    in these Antelope County cases is so substantially similar to
    those facts discussed and referred to in the [Nicholas Family]
    case as to be identical.” But instead, it was true that before the
    appeals to the district court, which ruled the evidence inadmis-
    sible and remanded for a rehearing, the evidence was so sub-
    stantially similar to those facts discussed in Nicholas Family as
    to be identical. 40 Upon the district court’s rulings as an appel-
    late court, however, the affidavits were no longer in evidence.
    Upon remand and before any new evidentiary hearing was
    held, there was no evidence on the record concerning the attor-
    ney fees at issue. Without evidence of the work done and the
    amounts of fees incurred by each landowner, the county court
    had no basis for concluding that the facts to support the motion
    were undisputed.
    [8] And although Nicholas Family has since indicated that
    the district court’s orders would have been reversed, had
    39
    See Bohmont, supra note 19.
    40
    See Nicholas Family, supra note 1.
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    they been appealed, which would have led to the ultimate
    result the county court reached, the district court’s orders
    in these cases were not appealed. Because TransCanada did
    not appeal the district court’s orders remanding the causes
    for rehearing on the merits of the motions for attorney fees,
    those orders became final and the law of the case. 41 Under
    the law-of-the-case doctrine, the holdings of an appellate
    court on questions presented to it in reviewing proceedings
    of the trial court become the law of the case; those holdings
    conclusively settle, for purposes of that litigation, all matters
    ruled upon, either expressly or by necessary implication. 42
    The Nicholas Family appeals, while factually similar, are still
    separate cases. They have no effect on the law of the case
    governing the present appeals. Because neither TransCanada
    nor the condemnees appealed the orders of the district court,
    the county court was left with a binding specific remand
    instruction, regardless of whether the district court’s judg-
    ments were correct.
    We agree with the district court that it was plain error in
    each case for the county court to fail to follow the district
    court’s first mandate that became the law of the case and hold
    an evidentiary hearing on the issue of attorney fees. In cases
    where no statement of errors was filed and the district court
    reviewed for plain error, the higher appellate court likewise
    reviews for plain error only. 43 Plain error exists where there is
    an error, plainly evident from the record, which prejudicially
    affects a substantial right of a litigant and is of such a nature
    that to leave it uncorrected would cause a miscarriage of jus-
    tice or result in damage to the integrity, reputation, and fairness
    of the judicial process. 44
    41
    See Rhoden Auto Center v. Oakley, 
    2 Neb. Ct. App. 84
    , 
    507 N.W.2d 51
         (1993).
    42
    Carpenter v. Cullan, 
    254 Neb. 925
    , 
    581 N.W.2d 72
    (1998).
    43
    Houser, supra note 11.
    44
    See
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    [9-13] As stated, a lower court has no authority to disregard
    a mandate of an appellate court. This principle is fundamental
    to our appellate process:
    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. A lower court may not modify
    a judgment directed by an appellate court; nor may it
    engraft any provision on it or take any provision from
    it. No judgment or order different from, or in addition
    to, the appellate mandate can have any effect. Because
    a trial court is without power to affect rights and duties
    outside the scope of the remand from an appellate court,
    any order attempting to do so is entered without jurisdic-
    tion and is void. 45
    Each person who takes part in the judicial process has a sub-
    stantial right to have the courts’ orders enforced. 46 And it is
    fundamental that the last utterance of an appellate court deter-
    mines the law of the case, and upon remand for another trial
    subsequent to the appeal, the trial court is bound to follow the
    law as stated by an appellate court. 47 We have long held that
    when a lower court fails to follow the directions of a superior
    court, the parties to such action have a right to use the appel-
    late court to coerce compliance with the mandate. 48 In State v.
    Dickinson, 49 we said that the actions of the lower court can be
    reviewed, either by error or appellate proceedings, or by man-
    damus, explaining the importance of enforcing a mandate in
    order to prevent parties from appealing ad infinitum:
    The force and effect of the provisions of a mandate ought
    not thus to be overcome and neutralized. If permissible,
    45
    Henk, supra note 
    9, 299 Neb. at 591
    , 909 N.W.2d at 638-39.
    46
    See State v. Dickinson, 
    63 Neb. 869
    , 
    89 N.W. 431
    (1902).
    47
    State v. White, 
    257 Neb. 943
    , 
    601 N.W.2d 731
    (1999).
    48
    See Dickinson, supra note 46.
    49
    Id. at 875-76,
    89 N.W. at 433.
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    it would, in many instances, deprive a party litigant of a
    substantial right earned after tedious and expensive litiga-
    tion, and require useless and needless expense and time
    in correcting the injustice done him by the prosecution of
    a new proceeding on appeal to establish that which has
    already been adjudicated.
    Disregarding an appellate court’s mandate affects a substantial
    right of the litigant the mandate was issued in favor of. When
    the parties declined to appeal the first district court order, the
    condemnees had earned the substantial right, via the judicial
    process, to have a rehearing.
    Since there was no appeal in each case of the district court’s
    first mandate, which became the law of the case, the county
    court could not disregard the final mandate of the district court,
    acting as an appellate court. Once the mandate was issued in
    each case, the county court had an unqualified duty to follow
    the mandate and hold a hearing. To leave such an error uncor-
    rected prejudicially affects the condemnees’ substantial right
    to the enforcement of the judgment rendered by the appellate
    court and would result in damage to the integrity, reputation,
    and fairness of the judicial process.
    We find no merit to TransCanada’s argument that the stipu-
    lated motion for a continuance changed the county court’s
    power and responsibilities in light of the orders on remand.
    Even assuming a stipulation could operate in such a manner,
    the stipulation here did not purport to do so. The stipulation
    was merely a continuance requested by both TransCanada
    and the condemnees because the present cases “were closely
    associated with the cases pending on appeal and the appellate
    court’s ruling may impact matters before this court.”
    For purposes of the district court’s order in each case
    remanding the matter for a new hearing, both TransCanada
    and the condemnees are treated as if the motion for attorney
    fees has not been heard and they should have a meaningful
    opportunity to present whatever evidence they have that is
    relevant to the motion for attorney fees. This evidence may
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    be similar to the evidence originally presented or it may be
    new evidence; the county court should consider all relevant
    evidence before making its determination on the motions for
    attorney fees.
    CONCLUSION
    We conclude that in each case the district court was cor-
    rect to find plain error and to remand with instructions for
    the county court to hold an evidentiary hearing. We affirm in
    each case the district court’s order remanding the matter to the
    Antelope County Court to conduct an evidentiary hearing on
    the issue of the condemnees’ request for attorney fees and costs
    and to make a final determination on that issue based on the
    evidence submitted.
    Affirmed.
    Miller-Lerman, J., participating on briefs.