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Pinnacle Enterprises, Inc. v. City of Papillion

Supreme Court of Nebraska

February 22, 2019

Pinnacle Enterprises, Inc., appellant,
City of Papillion, Nebraska, appellee.

         1. Statutes. Statutory interpretation presents a question of law.

         2. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-dictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court.

         3. 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.

         4. Actions: Waiver: Appeal and Error. Under the law-of-the-case doctrine, a well-recognized waiver rule has emerged: A decision made at a previous stage of litigation, which could have been challenged in the ensuing appeal but was not, becomes the law of the case; the parties are deemed to have waived the right to challenge that decision.

         5. Actions: Appeal and Error. When an appellate court remands a case to an inferior tribunal, the law-of-the-case doctrine prevents that court from taking action inconsistent with the judgment of the appellate court.

         6. Trial: Judgments: Pleadings. A trial court, in its discretion, may permit the renewal and resubmission of a motion which has previously been overruled.

         7. Courts: Judgments: Time. No court is required to persist in error, and, if the court concludes that a former ruling was wrong, the court may correct it at any time while the case is still in the court's control.

         8. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         9. Eminent Domain: Jurisdiction: Notice: Appeal and Error. In a condemnation action, only the filing of the notice of appeal and, by extension, service of this notice is jurisdictional.

         [302 Neb. 298] 10. Courts: Judgments: Pleadings: Appeal and Error. Under Neb. Rev. Stat. § 76-717 (Reissue 2018), only where it becomes necessary for a district court to order an appealing party to file a petition on appeal does it also become necessary for the court to impose such sanctions as are reasonable. In crafting a reasonable sanction, a court should consider the circumstances and any resulting prejudice to other parties.

         11. Actions: Attorney Fees: Words and Phrases. Under Neb. Rev. Stat. § 25-824(4) (Reissue 2016), the term "frivolous" connotes an improper motive or legal position so wholly without merit as to be ridiculous.

          Appeal from the District Court for Sarpy County: George A. Thompson, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Jason M. Bruno and James L. Schneider, of Sherrets, Bruno & Vogt, L.L.C., for appellant.

          Daniel J. Fischer and Julie A. Ward, of Koley Jessen, PC, L.L.O., and Karla R. Rupiper, Papillion City Attorney, and Amber L. Rupiper for appellee.

          Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.


         The City of Papillion, Nebraska (Papillion), condemned land owned by Pinnacle Enterprises, Inc. (Pinnacle). Pinnacle appealed the award to district court. After 41/2 years and one judicial recusal, the court dismissed the appeal for lack of jurisdiction. Because the plain language of Neb. Rev. Stat. § 76-717 (Reissue 2018) confers jurisdiction once a notice of appeal is filed, the court erred in dismissing the appeal and we reverse that dismissal. But the court did not abuse its discretion in denying Pinnacle's motion for sanctions relating to Papillion's motion for summary judgment, and we affirm that denial.


         Because much of this appeal centers upon the meaning of § 76-717, we quote it in full:

[302 Neb. 299] Within thirty days after the filing of such notice of appeal, the county judge shall prepare and transmit to the clerk of the district court a duly certified transcript of all proceedings had concerning the parcel or parcels of land as to which the particular condemnee takes the appeal upon payment of the fees provided by law for preparation thereof. When notice of appeal is filed by both the condemner and the condemnee, such transcript shall be prepared only in response to the first notice of appeal. The transcript prepared in response to the second notice of appeal shall contain only a copy of such notice and the proceedings shall be filed in the district court as a single cause of action.
The filing of the notice of appeal shall confer jurisdiction on the district court. The first party to perfect an appeal shall file a petition on appeal in the district court within fifty days after the filing of the notice of appeal. If no petition is filed, the court shall direct the first party to perfect an appeal to file a petition and impose such sanctions as are reasonable. The appeal shall be tried de novo in the district court. Such appeal shall not delay the acquisition of the property and placing of same to a public use if the condemner shall first deposit with the county judge the amount assessed by the appraisers.

         Although § 76-717 was amended in 2018, [1] the amendment did not change any of the language relevant to this appeal and for convenience, we quote the current statute.

         Papillion initiated condemnation proceedings in the county court. An amended return of the appraisers' award was entered on July 23, 2013. On ...

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