Transcanada Keystone Pipeline, LP v. Tanderup

• Decision Date: 10 April 2020
• Docket Number: Nos. S-19-493 through S-19-508.,s. S-19-493 through S-19-508.
• Citation: 305 Neb. 493,941 N.W.2d 145
• Parties: TRANSCANADA KEYSTONE PIPELINE, LP, appellant, v. Arthur R. TANDERUP and Helen J. Tanderup, husband and wife, and John Doe, appellees. TransCanada Keystone Pipeline, LP, appellant, v. Frank C. Morrison, also Known as Frank Morrison, and Lynn H. Morrison, husband and wife, and John Doe, appellees. TransCanada Keystone Pipeline, LP, appellant, v. Jerry Carpenter and Charlayne Carpenter, husband and wife, et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Germaine G. Berry et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Cottonwood Ridge LLC et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Cheri G. Blocher and Michael J. Blocher, Wife and Husband, et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Frankie Maughan, also known as Frankie Maughan, Jr., et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Todd J. Stelling and Lisa J. Stelling, Husband and Wife, and John Doe, appellees. TransCanada Keystone Pipeline, LP, appellant, v. Karen G. Berry and John Doe, appellees. TransCanada Keystone Pipeline, LP, appellant, v. Richard E. Stelling et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Joshua R. Stelling and John Doe, Appellees. TransCanada Keystone Pipeline, LP, appellant, v. Robert R. Krutz and Beverly J. Krutz, husband and wife, et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. CHP 4 Farms, LLC, et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Carol J. Manganaro, Personal Representative of the Estate of Florian W. Dittrich, et al., Appellees. TransCanada Keystone Pipeline, LP, appellant, v. Carol J. Manganaro et al., appellees. TransCanada Keystone Pipeline, LP, appellant, v. Tree Corners Farm, LLC, et al., appellees.
• Court: Nebraska Supreme Court

305 Neb. 493

941 N.W.2d 145

TRANSCANADA KEYSTONE PIPELINE, LP, appellant,

v.Arthur R. TANDERUP and Helen J. Tanderup, husband and wife, and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Frank C. Morrison, also Known as Frank Morrison, and Lynn H. Morrison, husband and wife, and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Jerry Carpenter and Charlayne Carpenter, husband and wife, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Germaine G. Berry et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Cottonwood Ridge LLC et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Cheri G. Blocher and Michael J. Blocher, Wife and Husband, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Frankie Maughan, also known as Frankie Maughan, Jr., et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Todd J. Stelling and Lisa J. Stelling, Husband and Wife, and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Karen G. Berry and John Doe, appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Richard E. Stelling et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Joshua R. Stelling and John Doe, Appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Robert R. Krutz and Beverly J. Krutz, husband and wife, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.CHP 4 Farms, LLC, et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Carol J. Manganaro, Personal Representative of the Estate of Florian W. Dittrich, et al., Appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Carol J. Manganaro et al., appellees.

TransCanada Keystone Pipeline, LP, appellant,

v.Tree Corners Farm, LLC, et al., appellees.

Nos. S-19-493 through S-19-508.

Supreme Court of Nebraska.

Filed April 10, 2020

James G. Powers and Patrick D. Pepper, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellant.

David A. Domina, Omaha, and Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for appellees.

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

Freudenberg, J.

NATURE OF CASE

This is a series of consolidated cases in which TransCanada Keystone Pipeline, LP (TransCanada), is seeking review of intermediate appellate orders entered by the Antelope County District Court, which reversed the Antelope County Court’s denial of appellees’ motions for attorney fees. These consolidated cases are factually related to a series of cases already decided by this court.¹ The question at issue in these cases is whether the county court plainly erred by entering a judgment on remand without holding an evidentiary hearing.

BACKGROUND

These appeals are from a series of condemnation proceedings initiated by TransCanada. Proceedings took place in several counties through which TransCanada planned to construct an oil pipeline, including Antelope County. TransCanada ultimately voluntarily dismissed all of its condemnation actions without prejudice, because several landowners in York County challenged the constitutionality of the proceedings and TransCanada elected to pursue approval for the pipeline route by the Public Service Commission.

As in the actions filed in other counties, the condemnees in the Antelope County actions moved for an award of attorney fees and costs under Neb. Rev. Stat. § 76-726 (Reissue 2018). Following a hearing, the Antelope County Court originally found in favor of the condemnees on their motions for attorney fees. In making its decision, the county court reviewed the condemnees’ affidavits that were received, over TransCanada’s objections. TransCanada made several objections, including foundation, as well as a general hearsay objection to all of the affidavits submitted. The Antelope County Court overruled a majority of the objections. It agreed to disregard the last paragraph of each of the condemnees’ affidavits, which contained gratuitous praise for their counsel, but otherwise received the affidavits into evidence. All of the evidence on the motion for attorney fees was presented via affidavit.

TransCanada appealed the Antelope County Court’s order granting attorney fees to the Antelope County District Court, which determined that the Antelope County condemnees’ affidavits submitted in support of their motions were inadmissible hearsay. The district court reversed the award of attorney fees, but stated that it was unsure to what extent the county court had relied on the affidavits. In each case, the district court remanded the matter for a "rehearing on the merits." The district court’s orders to remand were not appealed.

In similar cases in Holt and York Counties, the respective district courts had similarly held that the affidavits were inadmissible hearsay and remanded for a new hearing. However, unlike the Antelope County District Court’s order, TransCanada appealed the orders of remand of the Holt County District Court and the York County District Court. Accordingly, TransCanada requested to stay the mandate of remand from the district courts of Holt and York Counties.

In contrast, TransCanada did not request to stay the mandates from the Antelope County District Court. The Antelope County Court received the district court’s mandates on March 21, 2017, and entered orders spreading the mandates on March 29.

Before the mandated rehearing was held, the parties made a stipulated request for a continuance to await resolution of TransCanada Keystone Pipeline v. Nicholas Family .² The stipulated request stated: "These cases are closely associated with cases in the Nebraska Court of Appeals, and the Court of Appeals’ rulings on those cases may impact the matters before this Court." The Antelope County Court granted the continuance.

Nicholas Family consisted of 40 appeals from 40 different condemnation actions, which we consolidated into 4 appeals decided in 1 opinion. At issue in the appeals was the fact that the condemnees had requested attorney fees and costs under § 76-726. The condemnees, and their counsel, had in all cases submitted affidavits in support of the motions attesting to the fees and their reasonableness, and TransCanada had objected to all the affidavits on the basis of hearsay.³ The county courts had overruled the objections and granted the requests for attorney fees. The district courts were split on affirming the awards of attorney fees and rejecting the affidavits as hearsay.

We held in Nicholas Family that the submission of affidavits was an acceptable way to introduce evidence in a motion for attorney fees. However, we also found that the evidence presented by the condemnees in those cases was insufficient to support the award of attorney fees.⁴ We explained:

No written fee agreement or invoice for legal services was offered as evidence in support of the motions for attorney fees and costs. Nor did the landowners, in their affidavits, aver any specific amount owed by them to counsel.

We observe that affidavits from one or both counsel of record regarding the attorney fees actually incurred by the landowners were offered and admitted as evidence before each of the county courts. Under certain circumstances, such affidavits might supplement other evidence admitted at an attorney fees hearing and support the award of fees.

But in this case, these affidavits from counsel were not specific as to any individual landowner and--with respect to work done and fees charged--were virtually identical to one another, including seeking payment of the same amount of money based upon the same number of hours of work. In fact, these affidavits raised more questions than they answered, notably about the nature of the fee agreement between the landowners and counsel, whether any fee agreement was akin to a contingency agreement, and the nature of how attorney fees sought in these eminent domain proceedings might be related to the York County constitutional challenge. As such, we conclude that on these facts, these affidavits are insufficient to support the award of attorney fees.

Because the landowners’ affidavits did not allege the amount each had actually incurred, and because there was no other evidence sufficient to support the award of attorney fees, we find that the county courts’ awards were in error.⁵

Following our ruling in Nicholas Family , the Antelope County Court held a preliminary hearing to consider the arguments of counsel with regard to how these matters should be reheard. The condemnees argued that the district court ordered a rehearing on the merits and that the county court should conduct a new evidentiary hearing before ruling on the motions for attorney fees.

Relying on Jeffres v. Countryside Homes ,⁶ TransCanada argued that the county court should exercise its discretion to limit the scope of the evidence presented at a new hearing to the same content that was in the original affidavits. In Jeffres , we said that when a case is remanded for consideration of damages, it is within the sound discretion of the trial court to decide the issue on evidence contained in the record already made at the first trial, or to take additional evidence or to try the case de novo.

TransCanada then relied on deNourie & Yost Homes v. Frost⁷ to argue that the county court was not required to hold a rehearing because, under the facts limited to the same content that was in the original affidavits, it was undisputed that only one judgment could be rendered. In deNourie & Yost Homes , we discussed an exception to the general rule that a remand on the merits resets the parties back to their position before the trial. We said that if the facts are not in dispute and only one judgment could be rendered, a lower court could enter an order without holding a rehearing.⁸

After considering the arguments at the preliminary hearing, the county court concluded a rehearing was unnecessary because Nicholas Family already established that the type of evidence to be presented by the condemnees...