In re SID No. 384 of Douglas County

• Citation: 259 Neb. 351,609 N.W.2d 679
• Decision Date: 27 April 2000
• Docket Number: No. S-99-904.,S-99-904.
• Parties: In re Application of SANITARY AND IMPROVEMENT DISTRICT NO. 384 OF DOUGLAS COUNTY, Nebraska, to certain easements in Douglas County, Nebraska, by eminent domain to be owned and used by condemnor for its corporate purposes. Sanitary and Improvement District No. 384 of Douglas County, Nebraska, appellee and cross-appellant, v. Bruhns Packing Company, appellant and cross-appellee, and Bank of Elkhorn et al., appellees.
• Court: Supreme Court of Nebraska

609 N.W.2d 679

259 Neb. 351

In re Application of SANITARY AND IMPROVEMENT DISTRICT NO. 384 OF DOUGLAS COUNTY, Nebraska, to certain easements in Douglas County, Nebraska, by eminent domain to be owned and used by condemnor for its corporate purposes.

Sanitary and Improvement District No. 384 of Douglas County, Nebraska, appellee and cross-appellant, v. Bruhns Packing Company, appellant and cross-appellee, and Bank of Elkhorn et al., appellees.

No. S-99-904.

Supreme Court of Nebraska.

April 27, 2000.

Gregory C. Scaglione and Julie A. Schultz, of Koley, Jessen, Daubman & Rupiper, P.C., Omaha, for appellant.

David L. Welch and Lisa M. Meyer, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellee SID No. 384.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Bruhns Packing Company (BPC) appeals from an eminent domain award in the amount of $40,000. BPC asserts that it was not properly compensated for the taking of its land for public use because it was not allowed to introduce evidence regarding the loss of trees and grasses resulting from the condemnation.

SCOPE OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by said rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999).

To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded. Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999).

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. Blue Valley Co-op. v. National Farmers Org., 257 Neb. 751, 600 N.W.2d 786 (1999).

To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction, (2) the tendered instruction is a correct statement of the law, and (3) the tendered instruction is warranted by the evidence. Hausman v. Cowen, 257 Neb. 852, 601 N.W.2d 547 (1999).

FACTS

In 1995, Sanitary and Improvement District No. 384 of Douglas County, Nebraska (SID # 384), decided to construct an interceptor and outfall sanitary sewerline over, upon, and under BPC's property. Thereafter, SID # 384 attempted to enter into an agreement with BPC as to the value of the acquisition of permanent and temporary easements, but the parties were unable to reach an agreement.

On May 9, 1995, SID # 384 commenced condemnation proceedings, and a board of appraisers was appointed to assess the damages to BPC. The board's report found that BPC had sustained damages in the amount of $31,850. BPC subsequently appealed to the Douglas County District Court.

Prior to trial, SID # 384 filed a motion in limine to prohibit BPC from offering evidence regarding the value of and damage to BPC's trees and grasses, and to prohibit the introduction of any evidence concerning settlement negotiations and precondemnation settlement offers to BPC. The motion was sustained. A trial was held, and a jury found that BPC had been damaged in the amount of $40,000.

On September 23, 1997, BPC filed an application requesting attorney fees, expert witness fees, prejudgment interest, and costs pursuant to Neb.Rev.Stat. §§ 25-1708 (Reissue 1995) and 76-711 and 76-720 (Reissue 1996). A hearing was held on the application, but BPC filed a notice of appeal before the district court ruled on the request for fees. We dismissed that appeal, since a request for an award of attorney fees in a condemnation case is considered part of the judgment and the order from which BPC had appealed was not final. See In re Application of SID No. 384, 256 Neb. 299, 589 N.W.2d 542 (1999).

On remand, BPC moved for additional attorney fees and costs incurred on appeal. The district court sustained BPC's original application for attorney fees, expert witness fees, prejudgment interest, and costs in part, but denied BPC's motion for attorney fees and costs incurred on appeal to this court and denied BPC's motion to correct a typographical error in its September 23, 1997, application for fees, interest, and costs. BPC has timely appealed, and SID # 384 cross-appeals.

ASSIGNMENTS OF ERROR

BPC claims that the district court (1) abused its discretion by refusing to admit evidence of vegetation damages caused by the taking, (2) erred by refusing to give BPC's requested jury instructions regarding vegetation damages and by instructing the jury to disregard vegetation damages, (3) abused its discretion by refusing to admit evidence concerning SID # 384's "Notice of Acquisition," (4) erred by dismissing BPC's cause of action concerning whether Neb.Rev.Stat. §§ 76-706 and 76-707 (Reissue 1996) are unconstitutional, and (5) abused its discretion by failing to sustain BPC's motion for attorney fees and costs incurred on appeal.

On cross-appeal, SID # 384 argues that the district court erred in awarding attorney fees incurred by BPC prior to appealing its award to the district court and in awarding attorney fees incurred in contesting the constitutionality of §§ 76-706 and 76-707.

ANALYSIS

We first address BPC's claim that the district court abused its discretion by refusing to admit evidence of vegetation damages caused by the taking. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by said rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999). 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. Blue Valley Co-op. v. National Farmers Org., 257 Neb. 751, 600 N.W.2d 786 (1999). An abuse of discretion occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Stumpf v. Nintendo of America, 257 Neb. 920, 601 N.W.2d 735 (1999).

The issue presented is whether evidence offered by BPC regarding the loss of vegetation on the easements was properly excluded. In Walkenhorst v. State, 253 Neb. 986, 573 N.W.2d 474 (1998), we discussed how vegetation is to be considered in a condemnation action. In that case, the State of Nebraska, through the Department of Roads, acquired fee title and temporary and permanent easements by eminent domain to part of the Walkenhorsts' property. The Walkenhorsts were awarded $9,991 for the taking. They appealed, claiming they were improperly compensated because the trial court excluded their evidence regarding the value of a shelterbelt of trees located on the property. They asserted that this shelterbelt was separate property from the land and that article I, § 21, of the Nebraska Constitution entitled them to compensation for the shelterbelt apart from the taking of the land.

We stated that vegetation is generally not to be valued separately from the underlying land. The only relevant inquiry regarding vegetation was how the vegetation affected the fair market value of the land involved. Evidence of the value of vegetation was admissible only if such evidence could be related to the fair market value of the land.

BPC claims that its witness, Franklin C. Tate, Jr., a landscape engineer, should have been allowed to testify regarding the replacement cost of the trees and native grasses that were destroyed in the construction of the sewerline. As we explained in Walkenhorst, a condemnee is not entitled to introduce evidence regarding the replacement cost of trees and grasses. Such vegetation evidence is relevant only as to how the destruction affected the fair market value of the land.

In the case at bar, Tate was allowed to testify regarding how the trees and grasses affected the fair market value of the temporary and permanent easements. Tate described in detail the trees and grasses on the land before and after the construction of the sewerline. He testified that the existence of trees and erosion-controlling grasses can contribute positively to the fair market value of land and that the presence of vegetation is a factor which a reasonable purchaser may consider in determining the purchase price. Using the sales approach for valuing property, Tate opined that the estimated loss of value attributable to the permanent easement was $32,865. He attributed $9,310 in damages to the temporary easements and $10,860 in damages to a piece of property which was bordered by the property line on the west and south sides and by the permanent easement on the east and north sides, which the parties labeled the "pinned property."

However, when Tate was asked to testify whether he had formed an opinion as to the difference in the fair market value of the property before and after construction of the sewerline, which was a consequence of the destruction of vegetation, SID # 384 objected. The district court sustained the objection, and Tate was not allowed to testify regarding the value of the destroyed vegetation.

In an offer of proof, BPC placed a value on the loss of the vegetation and claimed that had Tate been allowed to testify further, he would have opined that the replacement cost of the lost vegetation was $54,000. Tate would also have testified that his evaluation of the damages caused by the permanent and temporary easements was calculated as if the land had no vegetation on it. Consequently, Tate would have stated that an additional $25,-000 reduction in fair market...