Westgate Recreation Ass'n v. Papio-Missouri River Natural Resources Dist.

Decision Date10 May 1996
Docket NumberNo. S-94-273,PAPIO-MISSOURI,S-94-273
PartiesWESTGATE RECREATION ASSOCIATION, Appellee, v.RIVER NATURAL RESOURCES DISTRICT, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Pleadings: Motions to Strike: Appeal and Error. Whether allegations in a pleading should be stricken presents a question of law, in connection with which a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

2. Judgments: Appeal and Error. A party who, after appealing from a judgment in that party's favor, voluntarily accepts the benefits or receives the advantage of the judgment is thereby precluded from afterward prosecuting his or her appeal.

3. Rules of Evidence. 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.

4. Trial: Rebuttal Evidence. The general rule is that rebuttal evidence should be confined to that which explains, disproves, or counteracts evidence introduced by the adverse party; it is within the discretion of the trial court to allow the introduction of evidence in rebuttal which would have been proper evidence upon the case in chief or should have been introduced during the case in chief.

5. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and a just result.

6. Trial: Eminent Domain: Evidence: Real Estate: Sales: Valuation. Generally, in a condemnation action evidence as to the sale of comparable property is admissible as evidence of market value, provided there is adequate foundation to show the evidence is material and relevant; foundation evidence should show the time of the sale, the similarity or dissimilarity of market conditions, the circumstances surrounding the sale, and other relevant factors affecting the market conditions at the time.

7. Trial: Eminent Domain: Evidence: Real Estate: Sales: Valuation. Whether properties which are the subject of other sales are sufficiently similar to the property condemned as to have some bearing on the value under consideration, and to be of aid to the jury, rests largely in the discretion of the trial court.

8. Trial: Evidence: Testimony: Witnesses. Where testimony given by a witness on direct examination creates an inference favorable to the party producing the witness, anything within the knowledge of that witness tending to rebut the inference is admissible on cross-examination, and the opposing party is entitled to pursue that line of cross-examination as a matter of right.

9. Trial: Eminent Domain: Expert Witnesses: Evidence: Sales. In a condemnation proceeding, a party may be permitted to cross-examine an expert witness as to comparable sales other than those relied upon by the witness, provided that foundation has been laid that the sales inquired about are, in fact, comparable.

10. New Trial: Verdicts: Appeal and Error. Only an error which is prejudicial to the rights of the unsuccessful party justifies a new trial; in the absence of such an error, the successful party, having sustained the burden and expense of trial, is entitled to keep the benefit of the verdict.

11. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence which unfairly prejudices a substantial right of the complaining litigant constitutes reversible error.

12. Eminent Domain: Real Estate: Valuation. The three generally accepted approaches used for the purpose of valuing real property in eminent domain cases are: (1) the market data approach, or comparable sales method, which establishes value on the basis of recent comparable sales of similar properties; (2) the income, or capitalization of income, approach, which establishes value on the basis of what the property is producing or is capable of producing in income; and (3) the replacement or reproduction cost method, which establishes value upon what it would cost to acquire the land and erect equivalent structures, reduced by depreciation.

13. Eminent Domain: Real Estate: Valuation. Each of the three generally accepted approaches for the purpose of valuing real property in eminent domain cases is but a method of analyzing data to arrive at the fair market value of the real property as a whole.

14. Eminent Domain: Real Estate: Improvements: Valuation. The unit rule for valuing property requires that the value of improved property be considered as a whole, without the assignment of separate costs for the land and individual improvements.

15. Eminent Domain: Real Estate: Improvements: Valuation. Generally, the reproduction cost method for valuing property may be used only in rare cases where there is a lack of comparable sales of similar property, where the structures on the property are in some sense unique, or where the character of the improvements is unusually well adapted to the kind of land upon which they exist.

16. Eminent Domain: Real Estate: Improvements: Valuation. A finding of uniqueness or special use is proper only when property has special capabilities which make it unmarketable at its true value due to unique improvements.

17. Trial: Evidence: Rebuttal Evidence: Waiver. Normally, an objection to inadmissible evidence is waived if the objecting party later introduces similar evidence; however, the rule does not apply where the objecting party introduces similar evidence solely for the purpose of meeting the adversary's case by explaining or rebutting the original evidence.

18. Trial: Evidence: Appeal and Error. Where it does not appear from the record that evidence wrongfully admitted in a jury trial did not affect the result of the trial unfavorably to the party against whom it was admitted, its reception must be considered prejudicial error.

19. Property: Valuation: Words and Phrases. Cost of repair is not synonymous with market value.

20. Trial: Evidence: Testimony: Hearsay. A written summary of oral trial testimony offered to prove the truth of the matter asserted therein constitutes inadmissible hearsay.

21. Trial: Evidence: Testimony: Appeal and Error. The admission of written summaries of oral trial testimony is prejudicially erroneous.

Paul F. Peters, of Schmid, Mooney & Frederick, Omaha, for appellant.

James D. Sherrets and David A. Jarecke, of Sherrets, Smith & Gardner, P.C., Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

This is a condemnation action in which the trial court, pursuant to verdict, entered judgment in the amount of $435,000 in favor of the plaintiff-appellee condemnee, Westgate Recreation Association. In appealing to the Nebraska Court of Appeals, the defendant-appellant condemner, Papio-Missouri River Natural Resources District, assigned a number of errors to the trial court, including that it (1) incorrectly struck certain allegations from the district's answer and (2) wrongly received certain evidence. Under our authority to regulate the caseloads of the Court of Appeals and this court, we, on our own motion, removed the matter to our docket. We now reverse the judgment of the trial court and remand for a new trial.

II. BACKGROUND

Seeking land for its Big Papillion Creek Channel Improvement Project and its Trailhead Park Project, the district instituted this action to acquire fee title to a portion of the land owned by Westgate. Westgate used its land as a swimming pool complex, which contained a main pool, a wading pool, a bathhouse, a parking lot, a redwood pavilion, a pumphouse, a storage area, outside lighting, and a chain link fence. The line of the taking went across a corner of the main pool making its retention infeasible. Before the taking, the land contained 143,545 square feet and was zoned development reserve/flood plain/floodway. The property actually taken contained 81,725 square feet, leaving the condemnee 61,820 square feet.

III. ANALYSIS

With that background, we turn our attention to the assignments of error, supplying such additional facts as resolution of the issues requires.

1. STRICKEN ALLEGATIONS

In the first assignment of error, the district complains of the trial court's striking from the district's answer the allegations which pled, as an affirmative defense, that Westgate's acceptance of the full amount of the award of the appraisers waived any right of appeal it otherwise had.

(a) Scope of Review

Whether allegations should be stricken presents a question of law, in connection with which a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. See Kramer v. Miskell, 249 Neb. 662, 544 N.W.2d 863 (1996).

(b) Application of Law to Facts

The district's answer alleged that the amount awarded to Westgate by the county court appraisers was the sum of $291,569.66; that subsequent to such award, the district deposited the amount of $291,569.66 with the clerk of the county court in payment of such award; and that subsequent thereto, on or about September 17, 1991, Westgate obtained the district's stipulation and was paid by, and accepted from, the clerk of the county court the entire $291,569.66; and that having accepted the payment of the entire amount of the damages awarded, Westgate waived, and is precluded from further prosecuting, its appeal.

The district contends that the foregoing affirmative defense is based on our holding in McCook Livestock Exchange Co. v. State, 173 Neb. 766, 115 N.W.2d 147 (1962). The county court appraisers therein assessed the damages to the condemnee in the sum of $1,730, and the condemnee filed its notice of appeal to the district court. While the appeal was pending, the parties entered into a stipulation to...

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    ...Only an error which is prejudicial to the rights of the unsuccessful party justifies a new trial. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996). What constitutes unfair prejudice is a matter the Nebraska Evidence Rules entrust to the discretion of the t......
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