Douglas Cty. Sch. Dist. No. 10 v. Tribedo, LLC , 307 Neb. 716 ( 2020 )

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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
Douglas County School District No. 10, also known
as the Elkhorn School District, appellant,
v. Tribedo, LLC, a Nebraska limited
liability company, appellee.
___ N.W.2d ___
Filed November 6, 2020. No. S-19-986.
1. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
2. Evidence: Appeal and Error. In a civil case, the admission or exclu-
sion of evidence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.
3. Eminent Domain: Verdicts: Appeal and Error. A condemnation action
is reviewed as an action at law, in connection with which a verdict will
not be disturbed unless it is clearly wrong.
4. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
5. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
6. Constitutional Law: Eminent Domain: Damages: Words and
Phrases. The Nebraska Constitution provides that property shall not
be taken or damaged for public use without just compensation, and the
phrase “or damaged” provides that consequential damages may be an
element of recovery in some situations.
7. Eminent Domain: Damages. The measure of damages for land taken
for public use is the fair and reasonable market value of the land
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
actually appropriated and the difference in the fair and reasonable mar-
ket value of the remainder of the land before and after the taking.
8. ____: ____. Severance damages for land taken for public use are
measured by all factors and inconveniences that would influence a
purchaser.
9. Jury Instructions: Appeal and Error. If the jury instructions given,
which are taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there is no preju-
dicial error concerning the instructions and necessitating a reversal.
10. Trial: Expert Witnesses. Expert witness testimony is not binding on the
triers of fact.
11. Attorney Fees: Appeal and Error. When an attorney fee is authorized,
the amount of the fee is addressed to the trial court’s discretion, and its
ruling will not be disturbed on appeal absent an abuse of discretion.
12. Attorney Fees. An award of attorney fees involves consideration of
such factors as the nature of the case, the services performed and results
obtained, the length of time required for preparation and presentation
of the case, the customary charges of the bar, and general equities of
the case.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Duncan A. Young, Jeff C. Miller, and Keith I. Kosaki, of
Young & White Law Office, for appellant.
Adam W. Barney, Trenten P. Bausch, and Sydney M. Huss,
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for
appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ.
Miller‑Lerman, J.
I. NATURE OF CASE
To acquire property for a new high school site, Douglas
County School District No. 10, also known as the Elkhorn
School District (Elkhorn), condemned 43.36 acres of a
73.99‑acre tract owned by Tribedo, LLC. The board of apprais-
ers issued an award of $2,601,600 for the taking. Tribedo
appealed the award to the district court for Douglas County
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
and alleged that the award did not reflect the fair market value
of the property taken and did not adequately compensate for
damages to the remainder of Tribedo’s property.
At trial, the parties offered evidence of the value of the
taken property and the severance damages to the remainder
property. Elkhorn unsuccessfully objected to Tribedo’s pre-
sentation of evidence regarding the factors which went to
the damages related to the change in fair market value of
the remainder property. The jury returned a verdict finding
compensation totaling $4,625,967. Elkhorn moved for a new
trial, which was denied. The court granted Tribedo’s posttrial
motions for an award of interest and attorney fees. Elkhorn
appeals, and it assigns several errors related to the compen-
sation awarded Tribedo and the award of attorney fees to
Tribedo. We affirm.
II. STATEMENT OF FACTS
In April 2015, Tribedo executed a purchase agreement to
acquire a 73.99‑acre tract located on the northeast corner
of West Maple Road and 180th Street in Douglas County,
Nebraska (Property). The Property was zoned for agricultural
use and was used as farmland. The managing agent of the
partnership that owns Tribedo testified that Tribedo purchased
the Property for $60,000 per acre with the intent to develop
it into a mixed‑use development. The sale closed on October
20, 2016.
The intersection of West Maple Road and 180th Street,
where the Property is located, is designated as a “[C]ommunity
165” intersection on the city of Omaha’s future land use map.
A Community 165 designation refers to a large mixed‑use
development area of at least 165 acres, which includes big‑box
stores, grocery stores, office buildings, and other commercial
development. There is evidence that it is the most intensive
land use development that is allowed within the city of Omaha.
Another such example is Village Pointe, located at 168th Street
and West Dodge Road.
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307 Nebraska Reports
DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
Tribedo planned to develop the Property with the use of a
sanitary and improvement district. Pursuant to the purchase
agreement for the Property, Tribedo began implementing land
use planning and zoning processes to enable development of
the land.
Subsequent to the execution of the purchase agreement, the
180th Street viaduct bridge, which connects Blondo Street to
north of the Property, received federal funding and an environ-
mental impact review. At the time of trial, Tribedo was acquir-
ing right‑of‑way for the bridge project for construction to start
in 2020, which it claims adds significant value to the Property.
Tribedo had attempted to rezone the Property, which approval
Tribedo believes it could have obtained, but once Elkhorn’s
condemnation occurred, the process was halted.
On February 22, 2017, 4 months after Tribedo closed on
the land, Elkhorn condemned 43.36 acres of the Property for
a new high school site. The board of appraisers appraised the
43.36‑acre tract at $60,000 per acre, awarding Tribedo a total
amount of $2,601,600 for the taking. Tribedo appealed to the
district court, where it alleged that the award was inadequate
and that the highest and best use of the Property was as a
mixed‑use commercial development.
1. Total Compensation: Condemned Property
Plus Diminished Fair Market
Value of Remainder
As we explain in greater detail below, at trial, the experts
addressed their opinions to both the 43.36 acres taken and
the diminished fair market value of the 30.63‑acre remainder,
as well as a dollar value of total compensation incorporating
both aspects of the award. Tribedo’s first real estate appraiser,
Kevin Kroeger, valued the total compensation at $5,890,000;
Tribedo’s second appraiser, Nicholas Dizona, valued the total
compensation at $7,022,000; and Elkhorn’s appraiser, Martin
Giff, valued the total compensation at $2,601,600.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
2. Compensation for the 43.36 Acres
of Condemned Property
Both parties presented evidence of the value of the con-
demned parcel. Kroeger valued the 73.99‑acre Property at
$98,010 per acre and the taken property at $4,249,720. Dizona
valued the Property at $124,769 per acre and the taken prop-
erty at $5,410,000. Giff valued the Property at $60,000 per
acre, the same price it had sold for previously, and calculated
the value of the taken property at $2,601,600.
3. Compensation for Severance Damages
to the Remaining 30.63 Acres
At trial, Tribedo sought compensation for both the 43.36
acres taken and the reduction in fair market value to the
remaining 30.63 acres. According to the evidence, after the
condemnation, Tribedo’s 30.63 acres remained in a Community
165 intersection and Tribedo’s revised preliminary plat to
develop that parcel into a mixed‑use development had been
approved at the time of trial.
Prior to trial, Elkhorn filed a motion in limine seeking to
exclude testimony and evidence relating to Tribedo’s “item-
ized” damages, based on the contention that they were not
related to the reduction in fair market value to the remaining
30.63 acres. During trial, the district court overruled Elkhorn’s
evidentiary objections and motions to strike concerning the
loss of market value of the remaining 30.63 acres.
Tribedo’s first appraiser, Kroeger, testified that the high-
est and best use of the Property was “for a future mixed‑use
development, which would incorporate a combination of com-
mercial, retail, office, and multi‑family uses.” He calculated
severance damages to the 30.63 acres of $1,640,280, based on
the impact of the project on the remainder and included grad-
ing costs. Kroeger explained that the topography of the site
varied by 80 feet from very low‑lying along the south side to
significantly higher elevations on the north side. Potential wet-
lands had been identified on the low‑lying south side.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
Kroeger noted that there would be additional expenses to
implement a new development plan, due to the condemna-
tion and losses to the condemnee incurred because of lag
time caused by starting over with a new development model.
Kroeger explained that Tribedo would now have overall fixed
costs for any future mixed‑use development spread over fewer
acres. For example, a mixed‑use development on the remain-
der property would likely lose 1.5 acres of developable land
required to address wetlands mitigation required by the city of
Omaha, which would previously have been spread out across
the larger parcel.
The second appraiser, Dizona, opined that the 30.63 acres
suffered diminution in the fair market value of approximately
$1,500,000. On direct examination, Dizona testified that the
highest and best use for the remaining 30.63 acres had changed
from mixed‑use “anchored development” to a development
without an anchor tenant. According to Dizona, “the boulevard
made it so that any potential anchored development would be
impossible” because any improvements would have to face the
boulevard, which could limit the useable space for Tribedo’s
new proposed development. He opined that a parcel the size
of the Property would have attracted a higher dollar purchaser,
because it could support a larger market participant like a
grocery store, with mixed‑use surrounding, and high‑density
residential to the north. He stated that comparable sales of sites
20 to 30 acres were more appropriate to determine the present
value after the condemnation, because of the differences in
functionality and usability as compared to a development of a
larger area. Dizona incorporated an estimate of $937,000 asso-
ciated with site elevation issues such as grading and dirt work
in reaching his opinion.
Elkhorn’s expert, Giff, valued the 30.63 acres at $69,000
per acre after the taking, and he concluded that the remain-
der property suffered no diminution in fair market value. He
opined that the highest and best use of the condemned portion
of the Property would have been as low‑density residential
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
development and that the highest and best use of the remain-
der of the Property would be for commercial development.
Giff testified that in reaching his valuation, he performed a
comparable sales analysis on the remaining 30.63 acres by
comparing the remainder with sales of three other properties
situated nearby, all of which had at least a quarter mile of
frontage on West Maple Road, including a sale on the south-
west corner of the West Maple Road and 180th Street intersec-
tion. Giff attributed the higher price per acre he assigned to the
remainder property to its proximity to the West Maple Road
frontage road.
Other evidence at trial showed that Tribedo’s preliminary
plat to develop the remaining 30.63 acres included no imported
dirt. However, the managing agent of Tribedo testified that
importing dirt is a “cost benefit” for a developer that he needed
to think through to evaluate the rewards compared to the risks
of developing the site.
4. Jury Instructions
At the jury instruction conference, Elkhorn proffered the fol-
lowing jury instruction regarding Tribedo’s severance damages:
To determine the fair market value of the property
taken in this case and to determine if there is a reduc-
tion in the fair market value of the property that was not
acquired, you may consider everything which affects the
market value of the subject property.
You have heard some testimony about [sic] from the
witnesses regarding the “costs to cure,” and like mat-
ters. You may only consider such “costs to cure” if they
have an impact on the diminution of the fair market
value of the remaining [30.63] acres as a result of the
condemnation.
The district court refused this jury instruction, and instead
instructed the jury, inter alia, that “Tribedo is entitled to recover
the fair market value of the 43.36 acres taken by Elkhorn, and
the diminished value, if any, of the remaining 30.63 acres
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307 Nebraska Reports
DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
owned by Tribedo, figuring the value as of February 22, 2017.”
Instruction No. 4 defined “fair market value” as follows:
The “fair market value” of a piece of property is the
price that someone ready to sell, but not required to do so,
would be willing to accept in payment for the property,
and that someone ready to buy, but not required to do so,
would be willing to pay for the property.
In determining fair market value, you may consider
the uses to which the property has been put and the
uses to which it might reasonably be put in the immedi-
ate future.
5. Jury Verdict and Posttrial
Pproceedings
The jury found that Elkhorn owed compensation to Tribedo
totaling $4,625,967, broken down as follows: $3,295,967
“[f]or the 43.36 acres owned by Tribedo taken by Elkhorn”
and $1,330,000 “[f]or the decrease in value, if any, of Tribedo’s
remaining 30.63 acres.”
After the conclusion of the jury trial and after the jury
returned its verdict, the district court issued an order setting
forth its rationale for denying Elkhorn’s motions and objec-
tions concerning the testimony and evidence of the severance
damages. The May 24, 2019, order stated, inter alia, that the
$937,000 to import dirt was not an impermissible “consequen-
tial cost” to the taking, but was “part of the diminished value
of the remaining property,” because imported dirt was needed
to level the remaining property, and that without imported fill,
the property would be worth less than if it had been level.
Elkhorn moved for judgment notwithstanding the verdict
and for a new trial, and Tribedo moved for attorney fees,
expert witness fees, and costs. Hearing was held on June 14,
2019. Elkhorn argued that the verdict was not supported by the
evidence with respect to severance damages, because there was
no evidence to support an amount of $1,330,000 for the dimin-
ished fair market value of the remainder property. The district
court ultimately denied Elkhorn’s motions.
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307 Nebraska Reports
DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
With respect to Tribedo’s request for attorney fees, expert
witness fees, and interest, Tribedo submitted affidavits of three
attorneys who had reviewed Tribedo’s billing records and
opined that the amount of fees requested was reasonable.
Elkhorn objected to the affidavits, because they did not include
actual billings and Elkhorn could not verify that the work was
applicable and that the fees were not duplicative. The district
court overruled Elkhorn’s objections to the attorney fees affi-
davits. The district court rejected Elkhorn’s opposition to the
attorney fees request and stated that under the circumstances, it
could determine the reasonableness of an attorney fees request
even in the absence of a detailed billing record.
On September 16, 2019, the district court entered judgment
for Tribedo for $4,625,967 on the jury’s verdict; $143,681.89
in prejudgment interest; postjudgment interest at $295.58 per
day or as permitted by law; and $590,924.89 in attorney fees.
In a written order, the district court found that the requested
attorney fees were reasonable, given the complexity and dura-
tion of the litigation; the number of issues litigated; the result
of a judgment exceeding the award by the board of appraisers
by over 75 percent; and the size of the judgment, which it
believed to be one of the largest jury awards in a condemnation
matter on record.
Elkhorn appeals.
III. ASSIGNMENTS OF ERROR
Elkhorn first assigns various errors related to the loss
in value of Tribedo’s remainder property. Summarized and
restated, these claims are that the district court erred (1) when
it denied Elkhorn’s motions to strike appraisal evidence offered
by Tribedo; (2) when it instructed the jury regarding severance
damages; (3) when it accepted the jury’s award of damages,
which Elkhorn claims was excessive; and (4) when it denied
Elkhorn’s motion for a new trial.
Elkhorn further claims that the district court erred when it
awarded attorney fees, expert fees, and interest to Tribedo.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
IV. STANDARDS OF REVIEW
[1] A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. Walker v. BNSF Railway Co., 306 Neb. 559, 946
N.W.2d 656 (2020).
[2] In a civil case, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. Id.
[3] A condemnation action is reviewed as an action at law, in
connection with which a verdict will not be disturbed unless it
is clearly wrong. Curry v. Lewis & Clark NRD, 267 Neb. 857,
678 N.W.2d 95 (2004).
[4] To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. Hike v. State, 288 Neb.
60, 846 N.W.2d 205 (2014).
[5] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion. Anderson v. Babbe, 304 Neb.
186, 933 N.W.2d 813 (2019).
V. ANALYSIS
1. Damage to Remainder Property
and Law on Severance Damages
Elkhorn claims generally that the district court improperly
allowed Tribedo’s expert appraisers to itemize damages to the
remainder property. Specifically, it claims that reversible error
occurred when the district court admitted evidence of Tribedo’s
increased costs, when it instructed the jury regarding severance
damages, when it accepted the jury’s award of damages, and
when it denied Elkhorn’s motion for a new trial. We consider
each claim in turn below.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
[6] Several principles of law govern damages to the remain-
der property in this case. The Nebraska Constitution provides
that property shall not be taken or damaged for public use
without just compensation, and the phrase “or damaged” pro-
vides that consequential damages may be an element of recov-
ery in some situations. See Patrick v. City of Bellevue, 164
Neb. 196, 82 N.W.2d 274 (1957). See, also, NJI2d Civ. 13.01,
comment & authorities, § X(G) (discussing just compensation
as it relates to consequential damages).
[7,8] The measure of damages for land taken for public
use is the fair and reasonable market value of the land actu-
ally appropriated and the difference in the fair and reasonable
market value of the remainder of the land before and after the
taking. Armbruster v. Stanton‑Pilger Drainage Dist., 169 Neb.
594, 100 N.W.2d 781 (1960). Severance damages for land
taken for public use are measured by all factors and incon-
veniences that would influence a purchaser. See, Sorenson
v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180, 376
N.W.2d 539 (1985) (superseded by statute on other grounds);
State v. Dillon, 175 Neb. 444, 122 N.W.2d 223 (1963). A jury
may take into account “‘every (nonspeculative) element of
annoyance and disadvantage resulting from the improvement
which would influence an intending purchaser’s estimate of the
market value of such property.’” Armbruster v. Stanton‑Pilger
Drainage Dist., 169 Neb. at 610, 100 N.W.2d at 792. For
example, “‘[t]he burden of additional fencing, and like mat-
ters, are to be included, not by being added together item by
item, but to the extent that, taken as a whole, they detract from
the market value of the property.’” Id. at 609, 100 N.W.2d
at 791. Other such elements which could influence market
value include
expenses for additional fencing, repairs, removal, and
rebuilding thereof; the expenses of removal and repair of
plaintiffs’ private roads and bridge, together with incon-
venience and disadvantage caused thereby; the expenses
of repair and the threatened peril and damages to one
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of plaintiffs’ two valuable irrigation wells, irrigation and
sewer systems, and to their buildings; and the expenses
incurred attempting, in good faith, to stop the erosion and
damages when defendant refused to do so, and like mat-
ters . . . .
Id. at 610, 100 N.W.2d at 792. Ultimately, evidence of itemized
damages may be considered only if such damages diminish the
market value of the property. See Armbruster v. Stanton‑Pilger
Drainage Dist., supra.
2. Elkhorn’s Claims
(a) Motion to Strike and Objections to
Tribedo’s Appraisers’ Testimony
Elkhorn argues that the district court abused its discretion
when it allowed Tribedo’s expert appraisers to testify about
damages to the remainder over Elkhorn’s objections. As stated
previously, a trial court’s decision to admit or exclude evidence
is reviewed for abuse of discretion. Walker v. BNSF Railway
Co., 306 Neb. 559, 946 N.W.2d 656 (2020). In a civil case,
the admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing party. Id.
Elkhorn specifically objects to evidence by Kroeger, who
testified to a number of factors that diminished the value of the
remainder for the property owner. Kroeger first testified that
he believed the value of the property taken was $4,249,720.
Kroeger later opined that the total amount of compensation due
for the taking, composed of property taken and diminution of
fair market value of the remainder, was $5,890,000.
Regarding the remainder, Kroeger presented evidence of the
costs of several restoration items, such as grading and addi-
tional wetland rehabilitation that he stated were necessary as a
result of dividing the Property. Kroeger testified that compen-
sation was payable to the property owner based on a change in
the fair market value of the remainder.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
Elkhorn also argues that Dizona’s testimony should not have
been admitted, because Dizona utilized a summation approach
by tacking on itemized damages to determine the reduction
in fair market value. To illustrate, Elkhorn notes that Dizona
referred to elements influencing value, including dirt fill and
leveling costs, a decrease in usable space, and changes in high-
est and best use. The question is whether Dizona’s “itemized”
costs were improperly considered as add‑ons to the market
value or whether they were properly considered as factors
influencing his opinion of the fair market value of the remain-
der property. We find the factors to which Tribedo’s experts
referred were properly considered in reaching their opinions
regarding the fair market value of the remainder.
Consistent with the district court ruling, Kroeger and Dizona
detailed numerous elements that influenced their valuations,
and both appraisers testified that their references to dam-
ages related to a reduction in fair market value. Items such
as grading and importing dirt may properly be considered to
the extent they affected the fair market value of the remain-
ing property. To the extent that Elkhorn notes conflicting
testimony by Tribedo’s experts, or doubts the propriety of ele-
ments considered in the valuation, such conflicting testimony
is a question of fact. See Chadron Energy Corp. v. First Nat.
Bank, 236 Neb. 173, 459 N.W.2d 718 (1990). The district court
did not abuse its discretion when it admitted expert testimony
regarding the diminution of market value to Tribedo’s remain-
ing property.
(b) Jury Instruction
Elkhorn next contends that the district court erred when
it refused to give its proposed jury instruction relating to the
remainder which stated that the “‘costs to cure’” could be con-
sidered only if they have an impact on the fair market value of
the remaining property.
[9] As set forth above, a court’s failure to give a requested
jury instruction is not reversible error unless an appellant
shows that (1) the tendered instruction is a correct statement
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
Cite as 307 Neb. 716
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. Hike v. State, 288
Neb. 60, 846 N.W.2d 205 (2014). However, if the instructions
given, which are taken as a whole, correctly state the law, are
not misleading, and adequately cover the issues submissible to
a jury, there is no prejudicial error concerning the instructions
and necessitating a reversal. See id.
Although the requested instructions are a correct statement
of the law, Elkhorn was not prejudiced by the district court’s
refusal to give them. The instruction actually given on this ques-
tion stated that “Tribedo is entitled to recover the fair market
value of the 43.36 acres taken by Elkhorn, and the diminished
value, if any, of the remaining 30.63 acres owned by Tribedo,
figuring the value as of February 22, 2017.” Instruction No. 4
defined “fair market value” as follows:
The “fair market value” of a piece of property is the
price that someone ready to sell, but not required to do so,
would be willing to accept in payment for the property,
and that someone ready to buy, but not required to do so,
would be willing to pay for the property.
In determining fair market value, you may consider
the uses to which the property has been put and the
uses to which it might reasonably be put in the immedi-
ate future.
Instruction No. 5 stated, “The Nebraska and United States
Constitutions provide that the property of no person shall be
taken for public use without just compensation therefore.”
“‘Just Compensation,’” as defined in instruction No. 5, is “the
fair market value of the property at the time it was taken and
the diminished value, if any, of the remainder as a result of the
taking which occurred on February 22, 2017.”
The substance of the proposed instruction was consistent
with the instructions given by the district court. Because the
jury was adequately instructed on the measure of damages
to the remaining property, this assignment of error is with-
out merit.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
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(c) Amount of Damages
Elkhorn next argues that the district court erred when it
accepted the jury verdict with respect to damages to the
remaining property. The crux of Elkhorn’s argument is that the
jury awarded severance damages which, Elkhorn argues, were
not specifically supported by the opinion of any expert.
The amount of damages sustained in a condemnation action
is peculiarly a question of a local nature and ordinarily is to be
determined by a jury. Patterson v. City of Lincoln, 250 Neb.
382, 550 N.W.2d 650 (1996). Where the evidence is conflict-
ing, an appellate court will not ordinarily interfere with the
verdict of the jury unless it is clearly wrong. Id.
[10] Here, the jury’s total award of $4,625,967, as com-
pensation for both the taken property and diminution to the
fair market value of the remainder, was supported by suf-
ficient evidence. Kroeger valued the total compensation at
$5,890,000; Dizona valued the total damages at $7,022,000;
and Giff valued the total damages at $2,601,600. Expert
witness testimony is not binding on the triers of fact. Id. In
condemnation cases, we generally do not set aside a jury
award which has fallen within the range of conflicting sets
of testimony. See In re Petition of Omaha Pub. Power Dist.,
268 Neb. 43, 680 N.W.2d 128 (2004). The jury award of
$4,625,967 in total compensation was supported by sufficient
competent evidence. We will not speculate as to how the jury
reached the amount of its award. This assignment of error is
without merit.
(d) Motion for New Trial
Elkhorn’s claim arising out of the denial of its motion for
new trial is generally grounded in the question of whether
Kroeger and Dizona testified to an improper measure of dam-
ages, particularly with respect to the remainder property.
Because we have found the district court did not err when it
admitted such testimony, it likewise did not abuse its discretion
when it denied the motion for a new trial.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC
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3. Attorney Fees
There is no dispute in this case that Tribedo had a right to an
award of attorney fees. See Neb. Rev. Stat. § 76‑720 (Reissue
2018). Elkhorn claims that the amount of the fees was unrea-
sonable. We recognize that the attorney fees are substantial, but
we find no abuse of discretion.
[11,12] When an attorney fee is authorized, the amount of
the fee is addressed to the trial court’s discretion, and its rul-
ing will not be disturbed on appeal absent an abuse of discre-
tion. ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296
Neb. 818, 896 N.W.2d 156 (2017). An award of attorney fees
involves consideration of such factors as the nature of the
case, the services performed and results obtained, the length
of time required for preparation and presentation of the case,
the customary charges of the bar, and general equities of the
case. Id.
In support of its fee application, Tribedo offered affida-
vits of three members of the Nebraska bar, who testified that
they had reviewed the fees charged by Tribedo’s attorneys,
received a detailed summary of the work provided by coun-
sel, and stated that they found the requested fees reasonable.
Following submission of evidence and briefing, the district
court found:
The amount sought by Tribedo is extremely reasonable,
particularly given the fact that the judgment exceeded the
award by more than 75%, the judgment is believed to be
one of the largest jury awards in a condemnation matter
to be found in a reported court decision in this State, the
litigation was fairly complex and, thus far, has persisted
over a nearly 2 1⁄2 year period, complex appraisals had to
be prepared by highly trained and experienced apprais-
ers, the experience and professional training of Tribedo’s
attorneys, the customary charges of the bar and the gen-
eral equities of the case.
After reviewing the district court’s detailed explanation for
its award of attorney fees, we agree that the above factors
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support the attorney fees awarded. The district court did not
abuse its discretion when it awarded Tribedo $590,924.89 in
attorney fees.
VI. CONCLUSION
For the reasons set forth above, we conclude that the district
court did not err in its trial rulings nor in accepting the jury ver-
dict for total compensation due Tribedo of $4,625,967. Further,
the district court did not abuse its discretion when it awarded
Tribedo $590,924.89 in attorney fees. All assignments of error
have been considered and are without merit. Accordingly, we
affirm the judgment of the district court.
Affirmed.
Papik, J., not participating.