TransCanada Keystone Pipeline, LP, appellant and CROSS-APPELLEE,
NICHOLAS FAMILY LIMITED PARTNERSHIP ET AL., APPELLEES AND CROSS-APPELLANTS. TransCanada Keystone Pipeline, LP, appellant and CROSS-APPELLEE,
WILLIAM F. DuNAVAN ET AL., APPELLEES AND CROSS-APPELLANTS. TransCanada Keystone Pipeline, LP, appellant,
Bartels Farms Inc., appellee. TransCanada Keystone Pipeline, LP, appellant,
John F. Small et al., appellees.
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, on which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Attorney Fees: Appeal and Error. On appeal,
a trial court's decision awarding or denying attorney
fees will be upheld absent an abuse of discretion.
Rules of Evidence: Hearsay: Appeal and
Error. Apart from rulings under the residual hearsay
exception, an appellate court reviews for clear error the
factual findings underpinning a trial court's hearsay
ruling and reviews de novo the court's ultimate
determination to admit evidence over a hearsay objection or
exclude evidence on hearsay grounds.
Hearsay: Words and Phrases. Hearsay is
defined as a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.
Neb. 277] 5. Rules of Evidence: Affidavits.
An affidavit is admissible in certain enumerated situations,
including motion practice, which includes the use of
affidavits relating to preliminary, collateral, and
Attorney Fees: Pleadings. A motion for
attorney fees under Neb. Rev. Stat. § 76-726 (Reissue
2009) is a collateral and independent request from the
underlying merits of the case between the parties.
from the District Court for Holt County, Mark D. Kozisek,
Judge, on appeal thereto from the County Court for Holt
County, Alan L. Brodbeck, Judge.
from the District Court for York County, Mary C. Gilbride,
Judge, on appeal thereto from the County Court for York
County, Linda S. Caster Senff, Judge.
from the District Court for Saline County, Vicky L. Johnson,
Judge, on appeal thereto from the County Court for Saline
County, Linda A. Bauer, Judge.
from the District Courts for Nance, Boone, and Polk Counties,
Rachel A. Daugherty, Judge, on appeal thereto from the County
Courts for Nance, Boone, and Polk Counties, Stephen R.W.
G. Powers and Patrick D. Pepper, of McGrath, North, Mullin
& Kratz, PC, L.L.O., for appellant.
A. Domina and Brian E. Jorde, of Domina Law Group, PC,
L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
40 appeals have been consolidated into 4 for purposes of
appeal. At issue in each case is whether the individual [299
Neb. 278] landowners are entitled to an award of attorney
fees under Neb. Rev. Stat. § 76-726 (Reissue 2009). We
conclude that the landowners did not offer sufficient proof
as to their entitlement to an award of attorney costs and
Keystone Pipeline, LP (TransCanada), is a limited partnership
wishing to construct an oil pipeline. Keystone XL, through
the State of Nebraska. On January 20, 2015, and in connection
with this proposed construction, TransCanada filed a number
of eminent domain proceedings in various counties, seeking to
acquire right-of-way and other property interests.
January 16, 2015, just prior to TransCanada's initiation
of these proceedings, certain property owners (including some
of the same landowners involved in these eminent domain
proceedings) filed, in York County District Court, a
constitutional challenge to the pipeline route as approved by
Nebraska's Governor. As a result of this challenge,
TransCanada and the landowners agreed to stay the eminent
domain proceedings while the constitutional challenge was
dismissed its condemnation petitions on October 1, 2015,
except that the Holt County petitions were dismissed on
September 30, in order for TransCanada to pursue approval of
a pipeline route by the Public Service Commission:
TransCanada . . . ("Keystone") . . . hereby
dismisses, without prejudice, its Petition for
Condemnation in this matter. Keystone will be seeking route
approval pursuant to Neb. Rev. Stat. § 57-1401 et seq.,
also known as the Major Oil Pipeline Siting Act. In the
event the route approval is granted, Keystone will
reinstitute eminent domain proceedings if necessary.
landowners filed the motions for attorney fees and costs at
issue in these consolidated appeals on October 6, 2015,
except that the Holt County motions were filed on October 2.
[299 Neb. 279] The motions were brought pursuant to §
76-726 and requested that the various county courts award to
the landowners costs, expenses, and attorney fees for work
done in connection with both the county court eminent domain
proceedings and the constitutional challenge. These requests
were accompanied by affidavits from (1) the individual
landowners, (2) counsel for the landowners, and (3) other
attorneys attesting to the reasonableness of the attorney
fees charged. In each instance, TransCanada objected to the
landowner affidavits on the basis of hearsay.
of these cases, the county court granted the requests for
attorney fees and TransCanada appealed. In the cases docketed
at Nos. S-17-116 through S-17-134 (Holt County cases), the
district court (1) found that the county court erred in
admitting the landowner affidavits because they were hearsay,
but that the admission was not reversible error because
TransCanada did not insist upon a ruling on its objection and
thus waived the objection; (2) found that the dismissals
without prejudice amounted to an abandonment of the
condemnation proceedings; and (3) reversed the awards of
attorney fees and costs, because there was no evidence that
the landowners actually incurred costs or fees as required by
§ 76-726, and remanded the causes to the county court
case docketed at No. S-17-424 (Saline County case), the
district court found that (1) the county court did not err in
admitting the landowner affidavits and did not err in failing
to rule on TransCanada's hearsay objection because
TransCanada did not insist upon a ruling and thus waived the
objection, (2) the dismissals without prejudice amounted to
an abandonment of the condemnation proceedings, and (3) the
award of attorney fees and costs was proper because the
landowner affidavit testimony showed an agreement to pay
cases docketed at Nos. S-17-366, S-17-367, and S-17-369 (York
County cases), the district court found that (1) the
dismissals without prejudice amounted to an abandonment of
the condemnation proceedings and (2) the fees sought may [299
Neb. 280] be proved by affidavit, but the affidavits offered
into evidence did not allow the court to determine the amount
actually incurred, and thus, the award was reversed and the
cause was remanded for further proceedings.
in the cases docketed at Nos. S-17-741 through S-17-745,
S-17-747, S-17-748, S-17-750, S-17-751, and S-17-753 through
S-17-760 (Nance, Boone, and Polk County cases), the district
court found that (1) the dismissals without prejudice
amounted to an abandonment of the condemnation proceedings
and (2) the attorney fees sought may be proved by affidavit
and the award was proper because the landowners'
affidavit testimony showed an agreement to pay attorney fees.
Nos. S-17-116 ...