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TransCanada Keystone Pipeline, LP v. Nicholas Family Limited Partnership

Supreme Court of Nebraska

March 9, 2018

TransCanada Keystone Pipeline, LP, appellant and CROSS-APPELLEE,
v.
NICHOLAS FAMILY LIMITED PARTNERSHIP ET AL., APPELLEES AND CROSS-APPELLANTS. TransCanada Keystone Pipeline, LP, appellant and CROSS-APPELLEE,
v.
WILLIAM F. DuNAVAN ET AL., APPELLEES AND CROSS-APPELLANTS. TransCanada Keystone Pipeline, LP, appellant,
v.
Bartels Farms Inc., appellee. TransCanada Keystone Pipeline, LP, appellant,
v.
John F. Small et al., appellees.

         1. 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 below.

         2. 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.

         3. 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.

         4. 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.

          [299 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 interlocutory matters.

         6. 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.

         Appeals 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.

         Appeals 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.

         Appeal 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.

         Appeals 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. Twiss, Judge.

          James G. Powers and Patrick D. Pepper, of McGrath, North, Mullin & Kratz, PC, L.L.O., for appellant.

          David 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 Funke, JJ.

          Heavican, C.J.

         INTRODUCTION

         These 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 fees.

         FACTUAL BACKGROUND

         TransCanada 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.

         On 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 being litigated.

         TransCanada 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.

         The 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.

         In each 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 for redetermination.

         In the 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 fees.

         In the 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.

         Finally, 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.

         ASSIGNMENTS OF ERROR

         Cases Nos. S-17-116 ...


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