Pinnacle Enters. v. City of Papillion

    Nebraska Advance Sheets
322	286 NEBRASKA REPORTS



Lansing rebutted this presumption, because the special mas-
ter determined that O’Neil had not communicated Horizon’s
confidential information to Lansing’s counsel. This finding
is not clearly against the weight of the evidence. We adopt
this finding, and conclude that because O’Neil did not share
confidential information with Lansing or Lansing’s counsel,
disqualification of Lansing’s counsel is not required. Horizon’s
application for a writ of mandamus is denied.
                                   Writ of mandamus denied.
   Miller-Lerman, J., not participating.



   Pinnacle Enterprises, Inc., appellant and cross-appellee,
        v. City of Papillion, a municipal corporation,
                appellee and cross-appellant.
                                    ___ N.W.2d ___

                         Filed July 26, 2013.     No. S-12-385.

 1.	 Judgments: Jurisdiction. Jurisdictional questions that do not involve a factual
     dispute present questions of law.
 2.	 Statutes: Judgments: Appeal and Error. The meaning and interpretation of a
     statute are questions of law. An appellate court independently reviews questions
     of law decided by a lower court.
 3.	 Jurisdiction: Appeal and Error. An appellate court has a duty to raise and deter-
     mine any jurisdictional issue of its own accord.
 4.	 Jurisdiction: Time: Appeal and Error. A party has only 30 days to appeal from
     a final order, and a party’s failure to timely appeal from a final order prevents an
     appellate court from exercising jurisdiction over the issues raised and decided in
     that order.
 5.	 Eminent Domain. Condemnation proceedings are special proceedings.
 6.	 Actions. A “claim for relief” under 

(1) (Reissue 2008)
     is equivalent to a separate cause of action.
 7.	 Eminent Domain: Parties: Appeal and Error. In a condemnation action,
     because a district court appeal is a de novo proceeding, which contemplates the
     filing of pleadings and the framing of issues, no longer is the condemnee auto-
     matically the plaintiff in the district court proceeding. Rather, who the plaintiff is
     depends on who appeals first from the appraisers’ award.

  Appeal from the District Court for Sarpy County: Daniel E.
Bryan, Jr., Judge. Affirmed.
   Paul F. Peters, P.C., L.L.O., for appellant.
                  Nebraska Advance Sheets
	             PINNACLE ENTERS. v. CITY OF PAPILLION	323
	                       Cite as 

  Michael N. Schirber, of Schirber & Wagner, L.L.P., for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
    Connolly, J.
                          SUMMARY
   The City of Papillion (City) condemned property owned by
Pinnacle Enterprises, Inc. (Pinnacle), for the City’s Schram
Road project. The project connected various streets by building
a new road and accompanying fixtures on Pinnacle’s former
property. Along with the road, the City built an iron fence
on the north side of the new road, which abutted Pinnacle’s
remaining property. Pinnacle alleges that (1) the City lacked
statutory authority to condemn the property for the fence
and, alternatively, (2) the City imposed a second taking by
building the fence and limiting its access to the new road.
Because Pinnacle failed to timely appeal those issues, we do
not reach them.
   The City cross-appealed, alleging that the district court erred
in granting Pinnacle interest, fees, expenses, and costs because
the jury verdict did not exceed the City’s prior offer to confess
judgment. We conclude that the court correctly applied the
statutes at issue and properly awarded Pinnacle interest, fees,
expenses, and costs. We affirm.
                         BACKGROUND
   The City wanted some of Pinnacle’s land for a project to
“redesign[], relocat[e] and mak[e] improvements to Schram
Road . . . including paving, grading, curbing, integral storm
sewers, decorative lighting and other necessary appurtenant
improvements.” The City intended to build a new road, as an
extension of the then-existing Schram Road, to connect several
arterial streets. Because Pinnacle and the City could not agree,
the City decided to condemn the property.
   In its initial filing in county court, the City set out the
property it sought to condemn, its authority to do so, the pur-
pose for the condemnation, and the parties’ failure to reach
an agreement. The City sought to acquire some property in
    Nebraska Advance Sheets
324	286 NEBRASKA REPORTS



fee simple (upon which the fence was eventually built), but
sought only temporary and permanent easements (for grad-
ing and storm sewers) in other property. The county court
later appointed appraisers to assess the damages of the pro-
posed taking. The appraisers awarded Pinnacle $344,215.15.
Pinnacle appealed to the district court, initially alleging only
that the appraisers’ award was insufficient.
   The City offered to confess judgment for $500,000,1 which
Pinnacle refused. Before trial, Pinnacle filed what it termed
its “Dispositive Pre-trial Motions.” Those motions essentially
claimed—in addition to the insufficiency of the appraisers’
award—that the condemnation was void because the City
(1) failed to negotiate in good faith and (2) lacked statutory
authority to condemn Pinnacle’s property for the fence. The
parties agreed to try these issues to the court and reserve the
sufficiency of the appraisers’ award for a later jury trial.2 Later,
Pinnacle amended its petition to include these issues.
   At the bench trial, Pinnacle argued that the easements were
fatally vague, that the City lacked authority under 

 (Reissue 2012) to condemn its property for a
fence, that the City had not negotiated in good faith, and that
the City had worked a second taking on Pinnacle by erecting
the fence. The court found otherwise:
      [T]he City . . . did negotiate in good faith with Pinnacle
      . . . prior to the City[’s] filing eminent domain proceed-
      ings in the County Court . . . .
         . . . [T]he fence referenced in [Pinnacle’s] Dispositive
      Pre-Trial Motions, does not constitute a second eminent
      domain taking and the Court specifically finds against
      [Pinnacle] and in favor of the [City] on all issues raised
      by [Pinnacle’s] Dispositive Pre-trial Motions . . . .
Pinnacle did not appeal this order.

 1	
      See 

 and 25-906 (Reissue 2008).
 2	
      See, SID No. 1 v. Nebraska Pub. Power Dist., 

, 

 (1998); Moody’s Inc. v. State, 

, 

 (1978);
      Suhr v. City of Seward, 

, 

 (1978). See, also,
      Krupicka v. Village of Dorchester, 

, 

      (2011).
                      Nebraska Advance Sheets
	                 PINNACLE ENTERS. v. CITY OF PAPILLION	325
	                           Cite as 

   Before proceeding to a jury trial on the appraisers’ award,
the City again offered to confess judgment for $500,000.
Pinnacle refused that offer. At the jury trial, both parties pre-
sented evidence, including expert testimony, on the damages
suffered. The jury awarded $432,661 in damages.
   Following the jury trial, the court awarded Pinnacle interest,
attorney and expert witness fees, expenses, and costs. In its
order, the court determined that under 

(Reissue 2009), Pinnacle was entitled to $99,159.22 in interest
because the jury’s verdict exceeded the appraisers’ award. The
court then determined that because the jury verdict exceeded
the appraisers’ award by more than 15 percent, under 

 (Reissue 2009), the court awarded Pinnacle
$100,369.80 in attorney fees and $9,900 in expert witness
fees. And the court awarded Pinnacle $1,419.50 in deposition
expenses. The court also determined that the jury verdict and
interest exceeded the City’s $500,000 offer to confess judg-
ment, so the court awarded Pinnacle costs.

                  ASSIGNMENTS OF ERROR
   Pinnacle assigns, restated, that the court erred in conclud-
ing that (1) the City had statutory authority to condemn the
property for the fence and (2) the City’s building of the fence
was not a second taking that limited Pinnacle’s access to the
new road.
   On cross-appeal, the City assigns, reordered and restated,
that the court erred in (1) granting Pinnacle interest because the
jury verdict did not exceed the City’s $500,000 offer to confess
judgment and (2) granting Pinnacle fees, expenses, and costs
because the jury verdict did not exceed the City’s $500,000
offer to confess judgment by more than 15 percent.

                  STANDARD OF REVIEW
  [1] Jurisdictional questions that do not involve a factual dis-
pute present questions of law.3

 3	
      See, e.g., In re Interest of Edward B., 

, 

      (2013).
    Nebraska Advance Sheets
326	286 NEBRASKA REPORTS



   [2] The meaning and interpretation of a statute are ques-
tions of law.4 We independently review questions of law
decided by a lower court.5

                           ANALYSIS
                          Final Order
   [3,4] Although neither party raised or discussed whether the
court’s order resolving the issues addressed in the bench trial
was a final, appealable order, an appellate court has a duty to
raise and determine any jurisdictional issues of its own accord.6
A party has only 30 days to appeal from a final order,7 and a
party’s failure to timely appeal from a final order prevents an
appellate court from exercising jurisdiction over the issues
raised and decided in that order.8
   Here, Pinnacle filed its appeal on May 2, 2012 (within
30 days of judgment on the jury verdict), but the issues that
Pinnacle raised on appeal—whether the City had authority
under § 19-709 to condemn its property for the fence and
whether construction of the fence was a second taking—were
resolved by the court’s order on January 27. The issue is
whether that order was a final, appealable order. We issued an
order to show cause to the parties to give them an opportunity
to respond to the order. After receiving and considering their
responses, we conclude that the January order was final, that
Pinnacle failed to timely appeal the issues it now raises, and
that we are without jurisdiction to address those issues.
   [5] Under 

 (Reissue 2008), the
three types of final orders are (1) an order which affects a

 4	
      See, e.g., Bacon v. DBI/SALA, 

, 

 (2012); In re
      Interest of Trey H., 

, 

 (2011).
 5	
      See, e.g., Beveridge v. Savage, 

, 

 (2013).
 6	
      See, e.g., Connelly v. City of Omaha, 

, 

      (2009).
 7	
      See 

(1) (Reissue 2008).
 8	
      See, State v. Poindexter, 

, 

 (2009); In re
      Interest of B.M.H., 

, 

 (1989). Cf. Selma
      Development v. Great Western Bank, 

, 

      (2013).
                       Nebraska Advance Sheets
	                  PINNACLE ENTERS. v. CITY OF PAPILLION	327
	                            Cite as 

substantial right and which determines the action and prevents
a judgment, (2) an order affecting a substantial right made
during a special proceeding, and (3) an order affecting a sub-
stantial right made on summary application in an action after
judgment is rendered.9 Here, only the second type of final
order—an order affecting a substantial right made during a spe-
cial proceeding—is at issue. We have long held that condem-
nation proceedings are special proceedings.10 So whether the
court’s January 2012 order was a final order—and thus whether
Pinnacle should have appealed it—depends on whether that
order affected a substantial right of Pinnacle.
   The meaning of a “substantial right” is somewhat vague. We
have stated that a substantial right is an essential legal right,
not a mere technical right.11 We have also stated that a sub-
stantial right is affected if an order affects the subject matter
of the litigation, such as diminishing a claim or defense that
was available to the appellant before the order from which the
appeal is taken.12
   We turn now to the court’s order and whether it affected
a substantial right. The order denied Pinnacle’s “Dispositive
Pre-Trial Motions,” which argued, among other things, that the
City lacked statutory authority under § 19-709 “to use eminent
domain to acquire right-of-way for a fence” and that the City’s
“construction of such fence amounted to a second taking and
subsequent condemnation of [Pinnacle’s] property.” We will
address each ruling in turn.
   The court’s ruling that the City had statutory authority to
condemn the property for the construction of a fence was
a final, appealable order. This conclusion flows from our
reasoning in SID No. 1 v. Nebraska Pub. Power Dist.13 In

 9	
      See, e.g., In re Interest of Karlie D., 

, 

      (2012).
10	
      See, e.g., SID No. 

; Higgins v. Loup River Public Power
      Dist., 

, 

 (1955); Webber v. City of Scottsbluff,
      

, 

 (1951).
11	
      See, e.g., SID No. 

.
12	
      See 

13	
      

    Nebraska Advance Sheets
328	286 NEBRASKA REPORTS



that consolidated case, the condemnor sought to condemn
two parcels of land in which the condemnee had an inter-
est. The appraisers entered awards for the condemnee, which
it appealed to the district court. In its amended petitions
on appeal, the condemnee alleged, among other things, that
“the subject parcels were public property over which [the
condemnee] had no statutory power of eminent domain and
prayed that the court declare the attempted condemnation
void.”14 The court held a bench trial solely on this issue,
“reserving for later determination other issues, including the
adequacy of damages awarded by the appraisers.”15 When the
court held that the condemnor had authority to condemn the
property, the condemnee appealed.16
   We first addressed whether the orders were final, because
other issues—including the adequacy of the damages—were
still pending before the court. We noted that whether the orders
were final depended on whether they qualified under one of
the three categories enumerated in § 25-1902. Because a con-
demnation proceeding was a special proceeding, we asked only
whether the orders affected a substantial right. We noted that
“[a] substantial right is affected if the order affects the subject
matter of the litigation, such as diminishing a claim or defense
that was available to the appellant prior to the order from
which the appeal is taken.”17 And because the orders “elimi-
nated what [the condemnee] alleged to be a complete defense
to condemnation,” they affected a substantial right and the
orders were final and appealable.18
   Similarly, the court’s order here eliminated what Pinnacle
alleged to be a defense to condemnation—that the City had no
authority to condemn property for construction of a fence. And
although Pinnacle did not allege that such a finding would


14	
      Id. at 920, 

.
15	
      

16	
      See SID No. 

.
17	
      

, 

.
18	
      

                       Nebraska Advance Sheets
	                  PINNACLE ENTERS. v. CITY OF PAPILLION	329
	                            Cite as 

necessarily render the whole condemnation void (it focused
on removing the fence), that would be its effect; a finding
that a portion of the taking was unlawful would require a
“do-over” of the condemnation proceeding. This is because
the initial appraisers’ award valued the entire taking; if that
award encompassed property which should not have been
included, then the award would be inaccurate. This would
affect the district court appeal because the court determines
the award of interest, fees, expenses, and costs by comparing
the jury’s assessment of damages and the appraiser’s award.19
So, concluding that part of a taking is void renders the whole
taking void because the proceeding must begin anew. We con-
clude that the court’s ruling that the City had authority under
§ 19-709 to condemn Pinnacle’s property for the construc-
tion of a fence was a final, appealable order. Pinnacle did not
timely appeal that order, and we are precluded from addressing
the issue now.
   The court’s ruling that the City’s construction of the fence
was not a second taking was also a final, appealable order.
We read the court’s order as concluding that the construc-
tion of the fence was simply not a taking. This reading is
supported by various portions of the bill of exceptions and
by the court’s later ruling that Pinnacle was foreclosed from
adducing evidence of its purported damages from the fence’s
construction (which the court would have allowed had it con-
sidered it to be a taking involved in the current condemna-
tion proceeding).
   Remember, “[a] substantial right is affected if the order
affects the subject matter of the litigation, such as diminish-
ing a claim or defense that was available to the appellant prior
to the order from which the appeal is taken.”20 The court’s
order meant that Pinnacle could not adduce evidence of any
purported damage from the City’s building of the fence in the
present proceeding. Notably, too, it meant that Pinnacle was


19	
      See §§ 76-711 and 76-720.
20	
      SID No. 

, 

, 

.
    Nebraska Advance Sheets
330	286 NEBRASKA REPORTS



effectively foreclosed from bringing a subsequent inverse con-
demnation proceeding, which Pinnacle sought to do, because
the court ruled it was not a taking. This order affected a sub-
stantial right, and so it was a final order from which Pinnacle
failed to timely appeal. We are precluded from addressing the
issue now.
   We note briefly that Pinnacle, in its response to our order
to show cause, argued that the January 2012 order was not
final because the order did not comply with 

(1) (Reissue 2008). That section states, in rele-
vant part:
      When more than one claim for relief is presented in an
      action, . . . or when multiple parties are involved, the
      court may direct the entry of a final judgment as to one
      or more but fewer than all of the claims or parties only
      upon an express determination that there is no just rea-
      son for delay and upon an express direction for the entry
      of judgment.
Pinnacle argues that because it presented multiple claims for
relief (which were not all resolved), and because the court did
not expressly state that the January order was final, it was not
a final order.
   [6] But § 25-1315(1) does not apply here because there
are not multiple “claim[s] for relief” within the meaning of
§ 25-1315(1). We have explained, in prior cases, that a “claim
for relief” under § 25-1315(1) is equivalent to a separate cause
of action.21 A cause of action “consists of the fact or facts
which give one a right to judicial relief against another . . . .
Two or more claims in a petition arising out of the same opera-
tive facts and involving the same parties constitute separate
legal theories . . . and not separate causes of action.”22 Here,
there was but one cause of action and therefore only one
“claim for relief” under § 25-1315(1).

21	
      See, e.g., Bailey v. Lund-Ross Constructors Co., 

, 

 (2003); Keef v. State, 

, 

 (2001).
22	
      Saunders County v. City of Lincoln, 

, 

 (2002).
                       Nebraska Advance Sheets
	                  PINNACLE ENTERS. v. CITY OF PAPILLION	331
	                            Cite as 

                           Cross-Appeal
   As our appellate rules explain, “[t]he proper filing of
an appeal shall vest in an appellee the right to a cross-
appeal against any other party to the appeal. The cross-appeal
need only be asserted in the appellee’s brief as provided by
§ 2-109(D)(4).”23 The City properly asserted its cross-appeal
in its brief.
   The City disagrees with the court’s award of interest, fees,
expenses, and costs to Pinnacle. The City claims that the
court erred in entering the award because the jury verdict did
not exceed the City’s prior offer to confess judgment. But
the initial question is whether the City could offer to confess
judgment. We conclude that it could not and, furthermore,
that the court’s award of interest, fees, expenses, and costs
was proper.
   Both §§ 25-901 and 25-906 relate to offers to confess judg-
ment. Section 25-901 is applicable here, rather than § 25-906,
because the offer to confess judgment did not come “in
court” under § 25-906 but through an “offer in writing” under
§ 25-901. Section 25-901 states, in relevant part:
         The defendant in an action for the recovery of money
      only, may, at any time before the trial, serve upon the
      plaintiff, or his attorney, an offer in writing to allow
      judgment to be taken against him for the sum specified
      therein. . . . If the plaintiff fails to obtain judgment for
      more than was offered by the defendant, he shall pay the
      defendant’s cost from the time of the offer.
The question is whether § 25-901 applies in a condemna-
tion proceeding.
   We take this opportunity to clarify the status of the par-
ties in the district court appeal of a condemnation proceeding.
Initially, as the condemnor is the party initiating the proceed-
ing, the condemnor is the plaintiff and the condemnee is the
defendant at the county court level. But this can change at the
district court level. Under prior versions of 

 (Reissue 2009), no matter who appealed from the

23	
      Neb. Ct. R. App. P. § 2-101(E) (rev. 2010).
    Nebraska Advance Sheets
332	286 NEBRASKA REPORTS



appraisers’ award, the condemnee was always denominated as
“the plaintiff” and the condemnor was always denominated as
“the defendant.”24
   [7] This changed in 1995 when the Legislature removed
that language and substituted the following: “The first party
to perfect an appeal shall file a petition on appeal in the dis-
trict court . . . .”25 The change was meant to place the onus of
filing a petition on the party who was appealing the apprais-
ers’ award rather than always requiring the condemnee to
do so.26 And because the district court appeal is a “de novo”
proceeding,27 which contemplates the “‘filing of pleadings
and the framing of issues,’”28 no longer is the condemnee
automatically the plaintiff in the district court proceeding.
Rather, who the plaintiff is depends on who appeals first
from the appraisers’ award. So on appeal, the City was
the defendant.
   We give statutory language its plain and ordinary mean-
ing.29 Section 25-901 provides that “[t]he defendant” may
offer to confess judgment. The statute also provides that the
defendant may do so “in an action for the recovery of money
only.” While the City is the defendant in this condemnation
proceeding, such a proceeding is not “for the recovery of
money only.” As such, the City’s offer to confess judgment
was invalid.
   Here, the proceeding was a condemnation proceeding com-
menced by the City against Pinnacle. A condemnation proceed-
ing is “the exercise of eminent domain by a governmental

24	
      See, 1961 Neb. Laws, ch. 369, § 2, p. 1142; 1973 Neb. Laws, L.B. 226,
      § 29; 1983 Neb. Laws, L.B. 270, § 1; Dawson v. Papio Nat. Resources
      Dist., 

, 

 (1981); Estate of Tetherow v. State,
      

, 

 (1975).
25	
      § 76-717; 1995 Neb. Laws, L.B. 222.
26	
      See Floor Debate, L.B. 222, Judiciary Committee, 94th Leg., 1st Sess.
      1166-68 (Feb. 10, 1995).
27	
      § 76-717.
28	
      Armstrong v. County of Dixon, 

, 632, 

, 44
      (2011).
29	
      See, e.g., Spady v. Spady, 

, 

 (2012).
                      Nebraska Advance Sheets
	                 PINNACLE ENTERS. v. CITY OF PAPILLION	333
	                           Cite as 

entity.”30 Eminent domain is “[t]he inherent power of a gov-
ernmental entity to take privately owned property, esp[ecially]
land, and convert it to public use, subject to reasonable com-
pensation for the taking.”31 In other words, the condemnation
proceeding in this case was a proceeding for the recovery of
land, not money.
   The proceeding does not change simply because Pinnacle
appealed the appraisers’ award to the district court. It is true
that the district court proceeding is a de novo proceeding
which contemplates the filing of pleadings and the framing of
issues.32 But it is not a new proceeding. We recognized this in
Wooden v. County of Douglas,33 when we explained that “the
[condemnee’s] petition on appeal . . . was not the commence-
ment of a new action, but simply a continuation of the con-
demnation action filed by the County.”34 And, as noted above,
a condemnation proceeding is not “for the recovery of money
only.” Section 25-901 does not apply, and so the City’s offer to
confess judgment was invalid.
   Because § 25-901 is inapplicable here, the issues regarding
interest, fees, expenses, and costs are straightforward. Under
§ 76-711, the court properly awarded interest to Pinnacle.
Section 76-711 states: “If an appeal is taken from the award of
the appraisers by the condemnee and the condemnee obtains
a greater amount than that allowed by the appraisers, the
condemnee shall be entitled to interest . . . .” Here, Pinnacle
obtained a “greater amount” from the jury than that allowed
by the appraisers, so the court correctly awarded interest
to Pinnacle.
   Under § 76-720, the court also properly awarded attorney
and expert witness fees to Pinnacle. Section 76-720 states:
         If an appeal is taken from the award of the appraisers
      by the condemnee and the amount of the final judgment

30	
      Black’s Law Dictionary 332 (9th ed. 2009).
31	
      Id. at 601.
32	
      See Armstrong, supra note 28.
33	
      Wooden v. County of Douglas, 

, 

 (2008).
34	
      

, 

. Cf. Armstrong, supra note 28.
    Nebraska Advance Sheets
334	286 NEBRASKA REPORTS



     is greater by fifteen percent than the amount of the
     award, . . . the court may in its discretion award to the
     condemnee a reasonable sum for the fees of his or her
     attorney and for fees necessarily incurred for not more
     than two expert witnesses.
The court awarded such fees, and we find no abuse of
discretion.
   The district court also awarded “costs” to Pinnacle. From
the court’s order, we read “costs” to include the deposition
expenses for $1,419.50. We have treated such expenses as costs
in the past.35 Unlike interest and fees, however, the eminent
domain statutes do not expressly allow the court to award costs
when the condemnee appeals the appraisers’ award and obtains
a greater amount from the jury. Nevertheless, the court’s award
of costs was proper under our case law.36

                        CONCLUSION
  We conclude that the court’s January 2012 order was a final
order from which Pinnacle failed to timely appeal. We also
conclude that the City’s offer to confess judgment was invalid
and that the court’s award of interest, fees, expenses, and costs
was proper.
                                                     Affirmed.

35	
      See, e.g., Bunnell v. Burlington Northern RR. Co., 

, 

 (1995).
36	
      Keller v. State, 

, 

 (1969).




                     State of Nebraska, appellee, v.
                      Armon M. Dixon, appellant.
                                   ___ N.W.2d ___

                         Filed July 26, 2013.   No. S-12-525.

 1.	 Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial
     is within the trial court’s discretion, and an appellate court will not disturb its
     ruling unless the court abused its discretion.