Barnett v. Happy Cab Co. , 311 Neb. 464 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/28/2022 09:07 AM CDT
    - 464 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    Jeremy Barnett, appellant, v. Happy Cab Co.,
    a Nebraska corporation, et al., appellees.
    ___ N.W.2d ___
    Filed April 28, 2022.    No. S-21-407.
    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. Trial: Appeal and Error. The standard of review of a trial court’s
    determination of a request for sanctions is whether the trial court abused
    its discretion.
    3. Judges: Words and Phrases. A judicial abuse of discretion exists when
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    4. 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.
    5. ____: ____: ____. 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.
    6. Judgments: Appeal and Error. No judgment or order different from, or
    in addition to, the appellate mandate can have any effect.
    7. ____: ____. Where the mandate makes the opinion of an appellate court
    a part thereof by reference, the opinion should be examined in conjunc-
    tion with the mandate to determine the nature and terms of the judgment
    to be entered or the action to be taken thereon.
    Appeal from the District Court for Douglas County: J.
    Michael Coffey, Judge. Vacated and remanded for further
    proceedings.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    John C. Fowles, of Fowles Law Office, P.C., L.L.O., for
    appellant.
    Michael T. Gibbons and Raymond E. Walden, of Woodke &
    Gibbons, P.C., L.L.O., for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    Jeremy Barnett was injured over 10 years ago while get-
    ting into a taxicab. Barnett filed a personal injury lawsuit
    against the driver of the taxicab and corporations alleged to
    have employed the driver. Days before a jury trial was to com-
    mence, counsel for the driver and corporations filed an offer
    to confess judgment and Barnett filed an acceptance. While
    one might assume that an accepted offer to confess judgment
    would quickly bring about the end of litigation, this one defi-
    nitely did not. In fact, it has generated a great deal more litiga-
    tion, including a prior appeal in which the Nebraska Court of
    Appeals vacated a district court order entering judgment based
    on the offer to confess judgment. See Barnett v. Happy Cab
    Co., 
    28 Neb. App. 438
    , 
    945 N.W.2d 200
     (2020).
    The prior appeal has now led to another. Barnett filed this
    appeal after the district court understood the Court of Appeals’
    decision to require Barnett to repay funds he received from
    one of the corporations and its liability insurer while the
    prior appeal was pending. When Barnett did not repay those
    amounts as the district court ordered, the district court dis-
    missed his lawsuit as a sanction for his noncompliance. We
    find that the district court lacked authority to require Barnett
    to repay the funds, and we therefore vacate the district court’s
    order requiring repayment and its order dismissing Barnett’s
    case for failing to do so and remand the cause for fur-
    ther proceedings.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    BACKGROUND
    Personal Injury Lawsuit.
    This lawsuit began when Barnett filed a complaint against
    Happy Cab Co. (Happy Cab), Checker Cab Co. (Checker
    Cab), and Richard C. Kincaid (collectively appellees). Barnett
    alleged that on a night in January 2011, as he was getting into
    a taxicab driven by Kincaid, the taxicab moved and struck
    Barnett’s head. Barnett claimed that he was injured as a result
    of Kincaid’s negligence. Barnett also alleged that Kincaid was
    an employee of Happy Cab “and/or” Checker Cab and that
    Kincaid’s negligence was imputed to those corporations under
    the doctrine of respondeat superior.
    Happy Cab and Checker Cab filed a joint answer denying
    Kincaid was their employee. Kincaid filed a separate answer
    denying he was an employee of either taxicab company. Both
    answers were filed by the same attorney.
    Offer to Confess Judgment and
    Subsequent Proceedings.
    A few days before a jury trial was scheduled to begin, the
    attorney representing appellees filed an offer to confess judg-
    ment in the amount of $75,000. Language at the beginning of the
    offer to confess judgment stated that the offer was being made
    by the “Defendants, Happy Cab Co. and Paratransit Insurance
    Co.” Language at the end of the offer, however, stated that it
    was “[r]espectfully submitted” by Happy Cab, Checker Cab,
    and Kincaid. Paratransit Insurance Co. (Paratransit Insurance)
    is Happy Cab’s liability insurer, but it has never been a party
    to the lawsuit.
    Barnett filed a timely acceptance of the offer to confess
    judgment. His acceptance stated that he was accepting the
    offer as to “‘defendants’ Happy Cab and Paratransit Insurance
    Co., only.”
    On the day trial was to begin, Barnett informed the district
    court that an offer to confess judgment had been filed and
    that Barnett had filed an acceptance of the offer. Counsel for
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    Barnett argued that the offer and acceptance applied only to
    Happy Cab and that judgment should be entered against Happy
    Cab only. Counsel for appellees argued that the offer and
    acceptance applied to all appellees and that Checker Cab and
    Kincaid should be dismissed as defendants.
    On April 15, 2019, the district court entered an order find-
    ing that the offer to confess judgment did not apply to Checker
    Cab or Kincaid and thus declined to dismiss Barnett’s claims
    against them. On the same day, the district court entered
    an “Order” of judgment against Happy Cab in the amount
    of $75,000.
    Appellees responded by filing a motion to alter or amend.
    After a hearing on that motion, the district court reversed
    course. On May 9, 2019, it entered an order finding that the
    offer to confess judgment was intended to apply to all appel-
    lees and that therefore, judgment should be entered in favor
    of Barnett and against all appellees. The court entered an
    “Amended Order of Judgment” in favor of Barnett and against
    all appellees in the amount of $75,000. Barnett appealed.
    First Appeal.
    On appeal, Barnett made the same argument he made in
    the district court. He contended that Happy Cab was the only
    appellee to make the offer, that he accepted the offer, and
    that therefore, the district court should have entered judgment
    against Happy Cab, but allowed him to continue to pursue his
    claims against Checker Cab and Kincaid.
    The Court of Appeals determined that the district court’s
    order should be reversed, but for reasons other than those
    advanced by Barnett. The Court of Appeals found that the dis-
    trict court committed plain error by entering judgment against
    all appellees pursuant to the offer to confess judgment. The
    Court of Appeals concluded that contract law principles
    should be applied to analyze the offer to confess judgment.
    Applying those principles, it determined that because appel-
    lees intended the offer to confess judgment to include all
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    appellees but Barnett attempted to accept only as to Happy
    Cab and Paratransit Insurance, there was no meeting of the
    minds and thus no agreement between the parties.
    Because it concluded that the offer to confess judgment was
    not effectively accepted, the Court of Appeals vacated the May
    9, 2019, “Amended Order of Judgment” against all appellees.
    For the same reason, it directed the district court, upon remand,
    to vacate the April 15 order entering judgment against Happy
    Cab only. The Court of Appeals concluded its analysis by stat-
    ing, “Our decision places Barnett and appellees back in the
    same position they were before the offer to confess judgment
    was filed.” Barnett v. Happy Cab Co., 
    28 Neb. App. 438
    , 446,
    
    945 N.W.2d 200
    , 206 (2020).
    We denied a petition for further review filed by appellees.
    On August 14, 2020, the Court of Appeals’ mandate issued
    to the district court. It stated: “The judgment which you ren-
    dered has been reversed and vacated, and cause remanded
    with directions by the Nebraska Court of Appeals. NOW,
    THEREFORE, you shall, without delay, proceed to enter judg-
    ment in conform­ity with the judgment and opinion of this
    court.” (Emphasis in original.)
    Motion to Enforce Mandate.
    After the district court spread the appellate mandate, appel-
    lees, through new counsel, filed a motion to enforce the man-
    date. In the motion, appellees alleged that after the district
    court entered its May 9, 2019, “Amended Order of Judgment”
    against all appellees, Happy Cab and Paratransit Insurance
    sent checks to Barnett’s counsel for $25,000 and $50,000,
    respectively, for the purposes of complying with the dis-
    trict court’s judgment. Appellees alleged that those checks
    were cashed in November 2019. Appellees also alleged that
    their counsel, after the Court of Appeals issued its mandate,
    requested that Barnett’s counsel repay $25,000 to Happy Cab
    and $50,000 to Paratransit Insurance, but Barnett’s counsel
    refused. Appellees requested that the district court enter an
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    order directing Barnett’s counsel to repay $25,000 to Happy
    Cab and $50,000 to Paratransit Insurance.
    At a hearing on appellees’ motion to enforce the mandate,
    they offered affidavits signed by executives of Happy Cab and
    Paratransit Insurance in which they claimed that in May 2019,
    they caused checks for $25,000 and $50,000, respectively, to
    be issued to Barnett and delivered to his counsel in order to
    satisfy the district court’s judgment. Appellees also offered the
    affidavit of their counsel, who averred that after the Court of
    Appeals’ mandate was issued, he requested that Barnett’s coun-
    sel return the $25,000 and $50,000 payments, but Barnett’s
    counsel refused.
    Barnett opposed appellees’ motion to enforce the mandate.
    At the hearing on the motion, he offered the affidavit of his
    counsel with supporting correspondence attached. According to
    the affidavit of Barnett’s counsel, shortly after the district court
    entered judgment in May 2019, he received an email from an
    assistant for appellees’ counsel at the time informing him that
    she would send him a payment for the judgment. Barnett’s
    counsel replied that the assistant need not send the payment
    because he planned to appeal.
    According to the affidavit of Barnett’s counsel, he did not
    receive any checks from appellees or hear anything further
    about them until November 2019. In November 2019, Barnett’s
    counsel unexpectedly received a letter from the assist­ant of
    appellees’ then-counsel, enclosing checks for $25,000 and
    $50,000. Barnett’s counsel subsequently called appellees’ then-
    counsel, and they agreed that “regardless of the outcome
    of the appeal as to the other [appellees], [Barnett] would
    receive the $75,000 and Happy Cab would be dismissed.”
    Barnett’s counsel then told appellees’ then-counsel that Barnett
    would “only receipt the money as coming from Happy Cab”
    and that he would send appellees’ then-counsel a draft to
    review. Barnett’s counsel subsequently emailed appellees’
    then-counsel an unsigned draft receipt stating that Barnett had
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    received checks satisfying the judgment against Happy Cab.
    Appellees’ then-counsel replied, “Looks good.”
    Based on the affidavit of his counsel, Barnett argued that
    he and appellees’ then-counsel reached a new settlement as
    to Barnett’s claim against Happy Cab and that he retained the
    settlement checks for that reason. He asserted that pursuant
    to that settlement, Happy Cab should be dismissed from the
    case, but that he should not be required to return the funds
    previously received from Happy Cab and Paratransit Insurance.
    Appellees, on the other hand, argued that in order to enforce
    the mandate, the district court was required to order Barnett to
    return those funds.
    The district court entered an order granting the relief
    sought by appellees. In the order, the district court stated the
    following:
    In its opinion, the Nebraska Court of Appeals held
    that the offer to confess judgment and the acceptance of
    the offer by [Barnett] did not create a contract between
    [Barnett] and any of the [appellees] and as a result
    reversed the May 9, 2019 amended order of judgment
    and remanded the cause to the District Court. The Court
    of Appeals further stated that its decision placed Barnett
    and [appellees] in the same position they were in before
    the offer to confess judgment was filed and, as a result,
    the Court finds that [Barnett] and his counsel shall repay
    to counsel for [Happy Cab] the amount of $25,000.00 and
    to [Paratransit Insurance] the amount of $50,000.00 on or
    before the 19th of January, 2021.
    Motion for Sanctions and Dismissal.
    After Barnett did not repay the funds as ordered by the dis-
    trict court, appellees filed a motion requesting that the district
    court dismiss Barnett’s case as a sanction for noncompliance.
    The district court sustained the motion and dismissed the
    action without prejudice.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    Barnett timely appealed. We moved the case to our docket
    on our own motion. See 
    Neb. Rev. Stat. § 24-1106
     (Cum.
    Supp. 2020).
    ASSIGNMENTS OF ERROR
    Barnett assigns a number of errors, but they can be effec-
    tively consolidated and restated as two. He contends that the
    district court erred (1) by ordering him to repay the amounts
    he received from Happy Cab and Paratransit Insurance and
    (2) by dismissing his case when he failed to comply with
    that order.
    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 deter-
    mination reached by the court below. TransCanada Keystone
    Pipeline v. Tanderup, 
    305 Neb. 493
    , 
    941 N.W.2d 145
     (2020).
    [2,3] The standard of review of a trial court’s determination
    of a request for sanctions is whether the trial court abused its
    discretion. Holste v. Burlington Northern RR. Co., 
    256 Neb. 713
    , 
    592 N.W.2d 894
     (1999). A judicial abuse of discretion
    exists when reasons or rulings of a trial judge are clearly
    untenable, unfairly depriving a litigant of a substantial right
    and denying just results in matters submitted for disposi-
    tion. 
    Id.
    ANALYSIS
    We begin our analysis with Barnett’s argument that the
    district court erred by ordering him to repay the amounts
    he received from Happy Cab and Paratransit Insurance. The
    district court entered the order in response to appellees’
    argument that such an order was required by the Court of
    Appeals’ mandate.
    [4-6] There is no question that the district court was obli-
    gated to follow the Court of Appeals’ mandate. A district court
    has an unqualified duty to follow the mandate issued by an
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    appellate court and must enter judgment in conformity with the
    opinion and judgment of the appellate court. State v. Payne,
    
    298 Neb. 373
    , 
    904 N.W.2d 275
     (2017). 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. 
    Id.
     No
    judgment or order different from, or in addition to, the appel-
    late mandate can have any effect. 
    Id.
    [7] While Barnett acknowledges that the district court was
    bound to follow the Court of Appeals’ mandate, he contends
    that the district court’s order directing him to repay the amounts
    he received from Happy Cab and Paratransit Insurance was not
    required by the mandate. Where, as here, the mandate makes
    the opinion of an appellate court a part thereof by reference,
    the opinion should be examined in conjunction with the man-
    date to determine the nature and terms of the judgment to be
    entered or the action to be taken thereon. 
    Id.
    Our review of the Court of Appeals’ opinion leads us to
    conclude that its mandate did not require the district court
    to order Barnett to repay the funds he received from Happy
    Cab and Paratransit Insurance in November 2019. As dis-
    cussed above, the district court entered two judgments in this
    case based on the offer to confess judgment. It first entered
    judgment against Happy Cab only, and then, after appellees
    filed a motion to alter or amend, it entered judgment against
    all appellees. Because the Court of Appeals concluded that
    Barnett had not effectively accepted an offer to confess judg-
    ment, it determined that the district court should not have
    entered a judgment at all. It therefore vacated the district
    court’s judgment against all appellees and directed the district
    court, on remand, to also vacate its prior judgment against
    Happy Cab only.
    While the Court of Appeals’ opinion focused on whether
    there was an effective acceptance of the offer to confess judg-
    ment and directed that the district court’s judgments based
    on the offer to confess judgment be vacated, the evidence
    submitted by the parties on appellees’ motion to enforce the
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    mandate concerned other matters. Specifically, that evidence
    pertained to whether the payment of funds to Barnett by Happy
    Cab and Paratransit Insurance while the prior appeal was pend-
    ing was, as appellees contend, the compulsory satisfaction of
    a judgment or, as Barnett contends, payment pursuant to a
    recently reached settlement agreement. We see nothing in the
    Court of Appeals’ opinion that spoke to the appropriate char-
    acterization of that payment or what the district court must do
    regarding that payment. Indeed, the Court of Appeals could not
    have spoken to these issues, because there is no way it could
    have even known that Barnett had received the funds while the
    appeal was pending.
    In ordering Barnett to repay the funds he received from
    Happy Cab and Paratransit Insurance, the district court relied
    on the Court of Appeals’ concluding language that its decision
    “places Barnett and appellees back in the same position they
    were before the offer to confess judgment was filed.” Barnett v.
    Happy Cab Co., 
    28 Neb. App. 438
    , 446, 
    945 N.W.2d 200
    , 206
    (2020). Appellees likewise contend that this language required
    the district court to order the repayment of funds. We disagree.
    The context for this concluding statement was the Court of
    Appeals’ direction that the district court’s prior judgments be
    vacated. The Court of Appeals was observing that the vacation
    of those judgments would return the parties to the position they
    were in before any judgments had been entered, not directing
    that the district court make additional orders not expressly dis-
    cussed by the Court of Appeals.
    Our conclusion that the district court’s order directing
    repayment was not required by the Court of Appeals’ man-
    date would not allow us to affirm unless the district court had
    some other authority to enter the order. On this subject, appel-
    lees assert that because Happy Cab and Paratransit Insurance
    issued the checks to Barnett under the compulsion of a now-
    vacated judgment, Barnett’s retention of those funds consti-
    tutes unjust enrichment. As we have noted, Barnett disputes
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    311 Nebraska Reports
    BARNETT v. HAPPY CAB CO.
    Cite as 
    311 Neb. 464
    this characterization of the payment, contending that the pay-
    ment was made pursuant to a new settlement agreement. As
    we will explain, we need not resolve this dispute between the
    parties here.
    To the extent appellees suggest that the district court could
    issue its order requiring that Barnett repay Happy Cab and
    Paratransit Insurance because appellees established that Barnett
    had been unjustly enriched, we disagree. While unjust enrich-
    ment is certainly a recognized cause of action under Nebraska
    law, see, e.g., Washa v. Miller, 
    249 Neb. 941
    , 
    546 N.W.2d 813
    (1996), appellees have not pled an unjust enrichment cause of
    action in this case. Moreover, the district court’s order appears
    to grant relief in favor of Paratransit Insurance, but Paratransit
    Insurance is not even a party to this case, let alone a party that
    has pled a cause of action against Barnett. And finally, even
    if the right cause of action had been pled by the right parties,
    those parties would still need to litigate that cause of action,
    and that has not occurred here either. The district court has
    entered an order based only on its understanding of the Court
    of Appeals’ mandate.
    Because we find that the district court, on this record, lacked
    authority to enter the order directing that Barnett repay the
    funds he previously received from Happy Cab and Paratransit
    Insurance, we vacate that order. And because the district court
    did not have authority to enter that order, it follows that the
    district court abused its discretion by dismissing Barnett’s case
    as a sanction for noncompliance. We thus also vacate the order
    dismissing the case and remand the cause for further proceed-
    ings. We express no opinion as to whether appellees may have
    some recourse they have not yet pursued with respect to the
    funds Barnett received while the first appeal was pending.
    CONCLUSION
    We find that on this record, the district court lacked author-
    ity to order Barnett to repay the funds he previously received
    from Happy Cab and Paratransit Insurance. We vacate that
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    BARNETT v. HAPPY CAB CO.
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    311 Neb. 464
    order and the district court’s order dismissing Barnett’s case
    and remand the cause for further proceedings.
    Vacated and remanded for
    further proceedings.
    Cassel, J., concurring.
    An “ancient reproach” cautions that “‘justice delayed is jus-
    tice denied.’” 1 The court’s opinion today, which I join in full,
    vividly illustrates the consequences of imprecise drafting in the
    form of years of delay and needless expense.
    I write separately only to say explicitly what the court
    implies: If the parties making the offer to confess judgment
    (through prior counsel) and the party purporting to accept it
    had used appropriate precision and attention to detail, this
    saga could have been avoided and justice achieved without
    the two appeals and underlying proceedings recounted in the
    court’s opinion.
    1
    See Rylee v. Marett, Sheriff, 
    121 S.C. 366
    , 378, 
    113 S.E. 483
    , 487 (1922).
    See, also, In re Supreme Court Commissioners, 
    100 Neb. 426
    , 
    160 N.W. 737
     (1916).