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Lansing rebutted this presumption, because the special master determined that O’Neil had not communicated Horizon’s 

confidential information to Lansing’s counsel. This finding 

is not clearly against the weight of the evidence. We adopt 

this finding, and conclude that because O’Neil did not share 

confidential information with Lansing or Lansing’s counsel, 

disqualification of Lansing’s counsel is not required. Horizon’s 

application for a writ of mandamus is denied.

Writ of mandamus denie

Miller-Lerman, J., not participati

Pinnacle Enterprises, Inc., appellant and cro

v. City of Papillion, a municipal corpor

appellee and cross-appe

___ N.W.2d ___

Filed July 26, 2013. No. S-12-385.

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.

Appeal from the District Court for Sarpy County: Daniel 

Bryan, Jr., Judge. Affirme

Paul F. Peters, P.C., L.L.O., for appellant.
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PINNACLE ENTERS. v. CITY OF PAPILLION 323

Cite as 286 Neb. 322

Michael N. Schirber, of Schirber & Wagner, L.L.P., for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

Connolly,

SUMMARY

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.

BACKGROUND

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 
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324 286 NEBRASKA REPORTS

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.

1 See Neb. Rev. Stat. §§ 25-901 and 25-906 (Reissue 2008).

2 See, SID No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917, 573 N.W.2d 

460 (1998); Moody’s Inc. v. State, 201 Neb. 271, 267 N.W.2d 192 (1978); 

Suhr v. City of Seward, 201 Neb. 51, 266 N.W.2d 190 (1978). See, also, 

Krupicka v. Village of Dorchester, 19 Neb. App. 242, 804 N.W.2d 37 

(2011).
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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.

ASSIGNMENTS OF ERROR

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.

STANDARD OF REVIEW

[1] Jurisdictional questions that do not involve a factual dispute present questions of law.3

3 See, e.g., In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 

(2013).
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326 286 NEBRASKA REPORTS

[2] The meaning and interpretation of a statute are questions of law.4

 We independently review questions of law 

decided by a lower court.5

ANALYSIS

Final Or

[3,4] 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.

[5] Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the 

three types of final orders are (1) an order which affects a 

4 See, e.g., Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012); In re 

Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

5 See, e.g., Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013).

6 See, e.g., Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 

(2009).

7 See Neb. Rev. Stat. § 25-1912(1) (Reissue 2008).

8 See, State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009); In re 

Interest of B.M.H., 233 Neb. 524, 446 N.W.2d 222 (1989). Cf. Selma 

Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215 

(2013).
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PINNACLE ENTERS. v. CITY OF PAPILLION 327

Cite as 286 Neb. 322

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 fence” and that the City’s 

“construction of such fence amounted to a second taking and 

subsequent condemnation of [Pinnacle’s] property.” We will 

address each ruling in turn.

The court’s ruling that the City had statutory authority to 

condemn the property for the construction of a fence was 

a final, appealable order. This conclusion flows from our 

reasoning in SID No. 1 v. Nebraska Pub. Power Dist.13 In 

9 See, e.g., In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 

(2012).

10 See, e.g., SID No. 1, supra note 2; Higgins v. Loup River Public Power 

Dist., 159 Neb. 549, 68 N.W.2d 170 (1955); Webber v. City of Scottsbluff, 

155 Neb. 48, 50 N.W.2d 533 (1951).

11 See, e.g., SID No. 1, supra note 2.

12 See id.

13 Id.
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328 286 NEBRASKA REPORTS

that consolidated case, the condemnor sought to condemn 

two parcels of land in which the condemnee had an interest. The appraisers entered awards for the condemnee, which 

it appealed to the district court. In its amended petitions 

on appeal, the condemnee alleged, among other things, that 

“the subject parcels were public property over which [the 

condemnee] had no statutory power of eminent domain and 

prayed that the court declare the attempted condemnation 

void.”14 The court held a bench trial solely on this issue, 

“reserving for later determination other issues, including the 

adequacy of damages awarded by the appraisers.”15 When the 

court held that the condemnor had authority to condemn the 

property, the condemnee appealed.16

We first addressed whether the orders were final, because 

other issues—including the adequacy of the damages—were 

still pending before the court. We noted that whether the orders 

were final depended on whether they qualified under one of 

the three categories enumerated in § 25-1902. Because a condemnation proceeding was a special proceeding, we asked only 

whether the orders affected a substantial right. We noted that 

“[a] substantial right is affected if the order affects the subject 

matter of the litigation, such as diminishing a claim or defense 

that was available to the appellant prior to the order from 

which the appeal is taken.”17 And because the orders “eliminated what [the condemnee] alleged to be a complete defense 

to condemnation,” they affected a substantial right and the 

orders were final and appealable.18

Similarly, the court’s order here eliminated what Pinnacle 

alleged to be a defense to condemnation—that the City had no 

authority to condemn property for construction of a fence. And 

although Pinnacle did not allege that such a finding would 

14 Id. at 920, 573 N.W.2d at 464.

15 Id.

16 See SID No. 1, supra note 2.

17 Id. at 921, 573 N.W.2d at 465.

18 Id.
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necessarily render the whole condemnation void (it focused 

on removing the fence), that would be its effect; a finding 

that a portion of the taking was unlawful would require a 

“do-over” of the condemnation proceeding. This is because 

the initial appraisers’ award valued the entire taking; if that 

award encompassed property which should not have been 

included, then the award would be inaccurate. This would 

affect the district court appeal because the court determines 

the award of interest, fees, expenses, and costs by comparing 

the jury’s assessment of damages and the appraiser’s award.19

So, concluding that part of a taking is void renders the whole 

taking void because the proceeding must begin anew. We conclude that the court’s ruling that the City had authority under 

§ 19-709 to condemn Pinnacle’s property for the construction of a fence was a final, appealable order. Pinnacle did not 

timely appeal that order, and we are precluded from addressing 

the issue now.

The court’s ruling that the City’s construction of the fence 

was not a second taking was also a final, appealable order. 

We read the court’s order as concluding that the construction of the fence was simply not a taking. This reading is 

supported by various portions of the bill of exceptions and 

by the court’s later ruling that Pinnacle was foreclosed from 

adducing evidence of its purported damages from the fence’s 

construction (which the court would have allowed had it considered it to be a taking involved in the current condemnation proceeding).

Remember, “[a] substantial right is affected if the order 

affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior 

to the order from which the appeal is taken.”20 The court’s 

order meant that Pinnacle could not adduce evidence of any 

purported damage from the City’s building of the fence in the 

present proceeding. Notably, too, it meant that Pinnacle was 

19 See §§ 76-711 and 76-720.

20 SID No. 1, supra note 2, 253 Neb. at 921, 573 N.W.2d at 465.
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330 286 NEBRASKA REPORTS

effectively foreclosed from bringing a subsequent inverse condemnation proceeding, which Pinnacle sought to do, because 

the court ruled it was not a taking. This order affected a substantial right, and so it was a final order from which Pinnacle 

failed to timely appeal. We are precluded from addressing the 

issue now.

We note briefly that Pinnacle, in its response to our order 

to show cause, argued that the January 2012 order was not 

final because the order did not comply with Neb. Rev. Stat. 

§ 25-1315(1) (Reissue 2008). That section states, in relevant part:

When more than one claim for relief is presented in an 

action, . . . or when multiple parties are involved, the 

court may direct the entry of a final judgment as to one 

or more but fewer than all of the claims or parties only 

upon an express determination that there is no just reason for delay and upon an express direction for the entry 

of judgment.

Pinnacle argues that because it presented multiple claims for 

relief (which were not all resolved), and because the court did 

not expressly state that the January order was final, it was not 

a final order.

[6] But § 25-1315(1) does not apply here because there 

are not multiple “claim[s] for relief” within the meaning of 

§ 25-1315(1). We have explained, in prior cases, that a “claim 

for relief” under § 25-1315(1) is equivalent to a separate cause 

of action.21 A cause of action “consists of the fact or facts 

which give one a right to judicial relief against another . . . . 

Two or more claims in a petition arising out of the same operative facts and involving the same parties constitute separate 

legal theories . . . and not separate causes of action.”22 Here, 

there was but one cause of action and therefore only one 

“claim for relief” under § 25-1315(1).

21 See, e.g., Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 

N.W.2d 916 (2003); Keef v. State, 262 Neb. 622, 634 N.W.2d 751 (2001).

22 Saunders County v. City of Lincoln, 263 Neb. 170, 174, 638 N.W.2d 824, 

827 (2002).
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Cross-Ap

As our appellate rules explain, “[t]he proper filing of 

an appeal shall vest in an appellee the right to a crossappeal against any other party to the appeal. The cross-appeal 

need only be asserted in the appellee’s brief as provided by 

§ 2-109(D)(4).”23 The City properly asserted its cross-appeal 

in its brief.

The City disagrees with the court’s award of interest, fees, 

expenses, and costs to Pinnacle. The City claims that the 

court erred in entering the award because the jury verdict did 

not exceed the City’s prior offer to confess judgment. But 

the initial question is whether the City could offer to confess 

judgment. We conclude that it could not and, furthermore, 

that the court’s award of interest, fees, expenses, and costs 

was proper.

Both §§ 25-901 and 25-906 relate to offers to confess judgment. Section 25-901 is applicable here, rather than § 25-906, 

because the offer to confess judgment did not come “in 

court” under § 25-906 but through an “offer in writing” under 

§ 25-901. Section 25-901 states, in relevant part:

The defendant in an action for the recovery of money 

only, may, at any time before the trial, serve upon the 

plaintiff, or his attorney, an offer in writing to allow 

judgment to be taken against him for the sum specified 

therein. . . . If the plaintiff fails to obtain judgment for 

more than was offered by the defendant, he shall pay the 

defendant’s cost from the time of the offer.

The question is whether § 25-901 applies in a condemnation proceeding.

We take this opportunity to clarify the status of the parties in the district court appeal of a condemnation proceeding. 

Initially, as the condemnor is the party initiating the proceeding, the condemnor is the plaintiff and the condemnee is the 

defendant at the county court level. But this can change at the 

district court level. Under prior versions of Neb. Rev. Stat. 

§ 76-717 (Reissue 2009), no matter who appealed from the 

23 Neb. Ct. R. App. P. § 2-101(E) (rev. 2010).
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332 286 NEBRASKA REPORTS

appraisers’ award, the condemnee was always denominated as 

“the plaintiff” and the condemnor was always denominated as 

“the defendant.”24

[7] This changed in 1995 when the Legislature removed 

that language and substituted the following: “The first party 

to perfect an appeal shall file a petition on appeal in the district court . . . .”25 The change was meant to place the onus of 

filing a petition on the party who was appealing the appraisers’ award rather than always requiring the condemnee to 

do so.26 And because the district court appeal is a “de novo” 

proceeding,27 which contemplates the “‘filing of pleadings 

and the framing of issues,’”28 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. So on appeal, the City was 

the defendant.

We give statutory language its plain and ordinary meaning.29 Section 25-901 provides that “[t]he defendant” may 

offer to confess judgment. The statute also provides that the 

defendant may do so “in an action for the recovery of money 

only.” While the City is the defendant in this condemnation 

proceeding, such a proceeding is not “for the recovery of 

money only.” As such, the City’s offer to confess judgment 

was invalid.

Here, the proceeding was a condemnation proceeding commenced by the City against Pinnacle. A condemnation proceeding is “the exercise of eminent domain by a governmental 

24 See, 1961 Neb. Laws, ch. 369, § 2, p. 1142; 1973 Neb. Laws, L.B. 226, 

§ 29; 1983 Neb. Laws, L.B. 270, § 1; Dawson v. Papio Nat. Resources 

Dist., 210 Neb. 100, 313 N.W.2d 242 (1981); Estate of Tetherow v. State, 

193 Neb. 150, 226 N.W.2d 116 (1975).

25 § 76-717; 1995 Neb. Laws, L.B. 222.

26 See Floor Debate, L.B. 222, Judiciary Committee, 94th Leg., 1st Sess. 

1166-68 (Feb. 10, 1995).

27 § 76-717.

28 Armstrong v. County of Dixon, 282 Neb. 623, 632, 808 N.W.2d 37, 44 

(2011).

29 See, e.g., Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
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entity.”30 Eminent domain is “[t]he inherent power of a governmental entity to take privately owned property, esp[ecially] 

land, and convert it to public use, subject to reasonable compensation for the taking.”31 In other words, the condemnation 

proceeding in this case was a proceeding for the recovery of 

land, not money.

The proceeding does not change simply because Pinnacle 

appealed the appraisers’ award to the district court. It is true 

that the district court proceeding is a de novo proceeding 

which contemplates the filing of pleadings and the framing of 

issues.32 But it is not a new proceeding. We recognized this in 

Wooden v. County of Douglas,

33 when we explained that “the 

[condemnee’s] petition on appeal . . . was not the commencement of a new action, but simply a continuation of the condemnation action filed by the County.”34 And, as noted above, 

a condemnation proceeding is not “for the recovery of money 

only.” Section 25-901 does not apply, and so the City’s offer to 

confess judgment was invalid.

Because § 25-901 is inapplicable here, the issues regarding 

interest, fees, expenses, and costs are straightforward. Under 

§ 76-711, the court properly awarded interest to Pinnacle. 

Section 76-711 states: “If an appeal is taken from the award of 

the appraisers by the condemnee and the condemnee obtains 

a greater amount than that allowed by the appraisers, the 

condemnee shall be entitled to interest . . . .” Here, Pinnacle 

obtained a “greater amount” from the jury than that allowed 

by the appraisers, so the court correctly awarded interest 

to Pinnacle.

Under § 76-720, the court also properly awarded attorney 

and expert witness fees to Pinnacle. Section 76-720 states:

If an appeal is taken from the award of the appraisers 

by the condemnee and the amount of the final judgment 

30 Black’s Law Dictionary 332 (9th ed. 2009).

31 Id. at 601.

32 See Armstrong, supra note 28.

33 Wooden v. County of Douglas, 275 Neb. 971, 751 N.W.2d 151 (2008).

34 Id. at 977, 751 N.W.2d at 156. Cf. Armstrong, supra note 28.
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is greater by fifteen percent than the amount of the 

award, . . . the court may in its discretion award to the 

condemnee a reasonable sum for the fees of his or her 

attorney and for fees necessarily incurred for not more 

than two expert witnesses.

The court awarded such fees, and we find no abuse of 

discretion.

The district court also awarded “costs” to Pinnacle. From 

the court’s order, we read “costs” to include the deposition 

expenses for $1,419.50. We have treated such expenses as costs 

in the past.35 Unlike interest and fees, however, the eminent 

domain statutes do not expressly allow the court to award costs 

when the condemnee appeals the appraisers’ award and obtains 

a greater amount from the jury. Nevertheless, the court’s award 

of costs was proper under our case law.36

CONCLUSION

We conclude that the court’s January 2012 order was a final 

order from which Pinnacle failed to timely appeal. We also 

conclude that the City’s offer to confess judgment was invalid 

and that the court’s award of interest, fees, expenses, and costs 

was proper.

Affirmed

35 See, e.g., Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530 

N.W.2d 230 (1995).

36 Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969).

State of Nebraska, appellee, 

Armon M. Dixon, ap

___ N.W.2d ___

Filed July 26, 2013. No. S-12-525.

1. Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial 

is within the trial court’s discretion, and an appellate court will not disturb its 

ruling unless the court abused its discretion.