In re Estate of Madeline A. Adelung

Summary

The Nebraska Supreme Court considered whether a county court, on remand, could award prejudgment interest in an estate accounting matter. The court held that the estate was not entitled to prejudgment interest because it had neither pleaded the claim nor provided notice of it before judgment, and it affirmed the county court's decision. The court did not reach the appellee's cross-appeal.

Holdings

1. Under the mandate branch of the law-of-the-case doctrine, a lower court may not take action apart from what the appellate mandate directs or permits, and issues decided or necessarily resolved in the prior appeal are conclusively settled. An issue may escape waiver only when the party lacked both an opportunity and an incentive to raise it in the prior appeal.
2. When prejudgment interest is sought, the failure to comply with Neb. Ct. R. Pldg. § 6-1108(a) may be excused only if the opposing party otherwise had notice and an opportunity to be heard before judgment. Because the estate neither pleaded prejudgment interest nor provided Kent notice before judgment, the county court properly refused to award it on remand.

Questions Presented

1. Whether the county court's refusal on remand to award prejudgment interest was outside or inconsistent with the Nebraska Supreme Court's prior mandate.
2. Whether the estate could recover prejudgment interest when it neither requested the interest in its pleading nor provided notice of the issue before entry of judgment.
3. Whether Kent Adelung's cross-appeal concerning pleading and substantive entitlement to prejudgment interest needed to be decided.

Disposition

affirmed