Sherard v. State

• Decision Date: 17 December 1993
• Docket Number: No. S-91-802,S-91-802
• Citation: 244 Neb. 743,509 N.W.2d 194
• Parties: Pamela Ritchie SHERARD, Appellant, v. STATE of Nebraska, Second Injury Fund, Appellee.
• Court: Nebraska Supreme Court

Page 194

509 N.W.2d 194

244 Neb. 743

Pamela Ritchie SHERARD, Appellant, v. STATE of Nebraska, Second Injury Fund, Appellee.

No. S-91-802.

Supreme Court of Nebraska.

Dec. 17, 1993.

Syllabus by the Court

1. Appeal and Error. An appellate court has an obligation to reach an independent, correct conclusion regarding matters of law, irrespective of the determination made by the lower court.

2. Judgments: Interest. When a decree falls within the purview of the applicable postjudgment interest statute, interest is chargeable without an express direction to that effect appearing in the decree.

3. Judgments: Workers' Compensation: Attorney Fees: Interest. When a court awards attorney fees against an employer pursuant to Neb.Rev.Stat. § 48-125(1) (Reissue 1988), the employer shall be liable for interest pursuant to § 48-125(2). The employer's liability for interest exists, and execution for interest may issue, even when the judgment is silent as to interest.

4. Judgments: Workers' Compensation: Final Orders. A judgment for compensation pursuant to the Nebraska Workers' Compensation Act cannot be enforced until it becomes conclusive upon the parties.

5. Judgments: Final Orders. An award by the Nebraska Supreme Court becomes conclusive upon the parties when that court issues a mandate.

6. Judgments. The issuance of a mandate is a ministerial act.

7. Courts: Presumptions. In the absence of evidence to the contrary, a court will presume that official acts, including ministerial acts, have been properly performed.

8. Courts: Presumptions: Time. When the record is silent on the issue, a court will presume that a mandate was duly issued at the appropriate time.

9. Courts: Workers' Compensation: Judicial Notice: Appeal and Error. When a district court is called upon to enforce a decision of the Workers' Compensation Court, the district court has a duty to take judicial notice of any appellate decisions which may have been rendered in the same case.

10. Property. Absent a statute to the contrary, State property is not subject to execution.

11. Political Subdivisions: Property: Words and Phrases. Public funds are funds belonging to the State, or to any county or political subdivision of the State.

12. Second Injury Fund: Property. The monies in the Second Injury Fund are not State property. The Second Injury Fund can therefore be subject to a writ of execution.

T.J. Hallinan, of Cobb, Hallinan & Ehrlich, P.C., Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Lynn A. Melson, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ.

PER CURIAM.

Plaintiff-appellant, Pamela Ritchie Sherard, appeals an order of the district court quashing her writ of execution. We reverse the judgment and remand the cause with directions to issue the writ.

This is the second appearance of this case in this court. The underlying facts are outlined in our prior opinion, Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991) (Sherard I ). Only those facts necessary to explain our present decision will be reviewed.

Sherard originally brought an action in the Nebraska Workers' Compensation Court to recover disability benefits against her employer, Bethphage Mission, Inc. Bethphage impleaded the State of Nebraska, Second Injury Fund (the Fund). The compensation court entered an award, and Bethphage and the Fund requested a rehearing. On February 14, 1990, the compensation court entered a rehearing award in favor of Sherard. The compensation court ordered both Bethphage and the Fund to make specified weekly payments to Sherard.

The Fund appealed the rehearing award to this court. On January 11, 1991, we decided Sherard I, in which we affirmed the rehearing award and additionally ordered the Fund to pay Sherard $1,500 in attorney fees. After Sherard I, the Fund paid Sherard the disability benefits then due and the attorney fees. The Fund did not pay Sherard any interest. This unpaid interest is the subject of the present dispute.

To collect the unpaid interest, Sherard sought a writ of execution from the Lancaster County District Court. The Fund moved to quash the writ. After an evidentiary hearing and submission of briefs, the district court granted the Fund's motion to quash. Sherard appeals from this order, claiming that the district court erred in granting the motion to quash.

Sherard's claim presents us with three legal issues. First, did Sherard I provide a basis for awarding interest? Second, was Sherard I properly filed with the district court for enforcement? Third, may a district court issue a writ of execution against the Second Injury Fund? Each of these issues is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the lower court. VanDeWalle v. Albion Nat. Bank, 243 Neb. 496, 500 N.W.2d 566 (1993).

We first address the issue of interest. In Sherard I, we awarded Sherard attorney fees pursuant to Neb.Rev.Stat. § 48-125(1) (Reissue 1988). The version of § 48-125(1) applicable at the time of Sherard I provided, in relevant part If the employer files an application for a rehearing before the compensation court from an award of a judge of the compensation court and fails to obtain any reduction in the amount of such award, the compensation court shall allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such rehearing, and the Supreme Court shall in like manner allow the employee a reasonable sum as attorney's fees for the proceedings in the Supreme Court.

The Fund is an employer within the meaning of this section. Pollard v. Wright's Tree Service, Inc., 212 Neb. 187, 322 N.W.2d 397 (1982). Because the Fund's appeal in Sherard I failed to produce a reduction in the amount of the award, we held the Fund liable for a portion of Sherard's attorney fees.

Our judgment in Sherard I does not mention interest. However, interest is allowed by statute; an award of attorney fees under § 48-125(1) implicates subsection (2) of the same statute. The version of § 48-125(2) applicable at the time of Sherard I provided, in relevant part:

When an attorney's fee is allowed pursuant to this section, there shall further be assessed against the employer an amount of interest on the final award obtained, computed from the date compensation was payable, as provided in section 48-119, at a rate equal to the rate of interest allowed per annum under section 45-104.01, as such rate may from time to time be adjusted by the Legislature.

Neb.Rev.Stat. § 48-119 (Reissue 1988) provides that if the disability continues for 6 weeks or longer, then compensation is payable from the date of the injury. Neb.Rev.Stat. § 45-104.01 (Reissue 1988) provides for an interest rate of 14 percent per annum.

The precise issue before us is whether, when an appellate court judgment is silent as to interest and interest on the judgment is provided by statute, a district court may order execution to collect interest. We find that a district court may so order.

We have previously encountered this issue in conjunction with a postjudgment interest statute. In Stuart v. Burcham, 62 Neb. 84, 86 N.W. 898 (1901), we held that when a decree falls within the purview of the applicable postjudgment interest statute, interest is chargeable without an express direction to that effect appearing in the decree.

The postjudgment interest statute discussed in Stuart is analogous to § 48-125(2), the statute at issue here. The statute discussed in Stuart provided that " '[i]nterest ... shall be ... at the rate of [7 percent].' " (Emphasis supplied.) Stuart, 62 Neb. at 86, 86 N.W. at 899. Section 48-125(2) provided that interest "shall further be assessed against the employer." (Emphasis supplied.) As a general rule of statutory construction, the word "shall" is considered mandatory. Moyer v. Douglas & Lomason Co., 212 Neb. 680, 325 N.W.2d 648 (1982); Pelzer v. City of Bellevue, 198 Neb. 19, 251 N.W.2d 662 (1977). Both the Stuart statute and § 48-125(2) required an award of interest. We previously interpreted the Stuart statute to allow interest even when the decree was silent as to interest, and we now interpret § 48-125(2) in a similar fashion.

Such an interpretation is supported by courts of other jurisdictions. Those courts generally hold that although interest may be specified in a judgment, statutory interest is also recoverable when the judgment makes no mention of its recovery. See, Rogers v. Springfield Fire etc. Ins. Co., 92 Cal.App. 537, 268 P. 679 (1928); Arnold v. Arnold, 258 Iowa 850, 140 N.W.2d 874 (1966); Commonwealth, Department of Highways v. Young, 380 S.W.2d 239 (Ky.1964); Thomas v. St. Charles Parish, 613 So.2d 698 (La.App.1993); Bolt v. Nelson, 263 Mich. 158, 248 N.W. 581 (1933); Baldwin v. Collins, 479 P.2d 567 (Okla.1970); Wolfgang v. Thiele Co., 141 Or. 280, 17 P.2d 313 (1932); Golden v. Murphy, 611 S.W.2d 914 (Tex.Civ.App.1981); Dairy Distributors, Inc. v. Local 976, etc., 16 Utah 2d 85, 396 P.2d 47 (1964). Other sources specifically explain that "where interest on judgments is allowed by statute, execution for interest may issue whether or not it is allowed in the judgment." 33 C.J.S. Executions § 75b. at 216-17 (1942). Accord Amis v. Smith, 41 U.S. (16 Pet.) 303, 10 L.Ed. 973 (1842) (applying Mississippi law).

Based on our decision in Stuart, principles of statutory construction, and the weight of the above authorities, we hold that when a court awards attorney fees against an employer pursuant to § 48-125(1), the employer shall be liable for interest pursuant to § 48-125(2). The employer's liability for interest exists, and execution for interest may issue, even when the judgment is silent as to interest. Thus, Sherard I, in which we awarded attorney fees pursuant to § 48-125(1), provides grounds upon which the district court, pursuant to §...