Pinnacle Enters., Inc. v. City of Papillion, Corp.
| Decision Date | 26 July 2013 |
| Docket Number | No. S–12–385.,S–12–385. |
| Citation | 836 N.W.2d 588,286 Neb. 322 |
| Parties | Pinnacle Enterprises, Inc., appellant and cross-appellee, v. City of Papillion, a municipal corporation, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Sarpy County: Daniel E. Bryan, Jr., Judge. Affirmed.
Paul F. Peters, P.C., L.L.O., for appellant.
Michael N. Schirber, of Schirber & Wagner, L.L.P., for appellee.
[286 Neb. 322]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 determine 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 Neb.Rev.Stat. § 25–1315(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 automatically the plaintiff in the district court proceeding. Rather, who the plaintiff is depends on who appeals first from the appraisers' award.
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.
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 purpose for the condemnation, and the parties' failure to reach an agreement. The City sought to acquire some property in fee simple (upon which the fence was eventually built), but sought only temporary and permanent easements (for grading and storm sewers) in other property. The county court later appointed appraisers to assess the damages of the proposed 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 Neb.Rev.Stat. § 19–709 (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 proceedings 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.
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 presented 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 Neb.Rev.Stat. § 76–711 (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 Neb.Rev.Stat. § 76–720 (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 judgment, so the court awarded Pinnacle costs.
Pinnacle assigns, restated, that the court erred in concluding 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.
Jurisdictional questions that do not involve a factual dispute present questions of law.3
The meaning and interpretation of a statute are questions of law.4 We independently review questions of law decided by a lower court.5
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.
Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders are (1) an order which affects a 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 substantial 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 special proceeding—is at issue. We have long held that condemnation 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 substantial 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...
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