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the circumstances that the trial judge heard and observed 

the witnesses and accepted one version of the facts rather 

than another.12

For the order to be issued, Torres would have needed to 

provide at least some evidence of abuse as defined under 

§ 42-903(1). Based on her own testimony, the only bodily harm 

inflicted on Torres was what appears to have been an accidental elbowing—this certainly falls short of the “intentionally and 

knowingly” requirement of subsection (1)(a). Torres did not 

present any evidence that Morales threatened her as required 

by subsection (1)(b). And, finally, Torres did not present any 

evidence of any nonconsensual sexual contact as required by 

subsection (1)(c).

The district court did not err in failing to issue the protection order.

CONCLUSION

For the foregoing reasons, the order dismissing the cause is 

affirmed, but the portion of the order requiring Torres to pay 

the costs of the action is reversed.

Affirmed in part, and in part rever

Heavican, C.J., participating on brief

12 Elstun, supra note 1.

SourceGas Distribution LLC, a Delawar

liability company, appellant, v. City of Hasti

Nebraska, a municipal corporation, for 

on behalf of the board of public wor

of the City of Hastings, appell

___ N.W.2d ___

Filed March 7, 2014. No. S-13-239.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law 

that an appellate court independently reviews.

2. ____: ____. Absent anything to the contrary, an appellate court will give statutory 

language its plain and ordinary meaning.
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3. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not 

look beyond a statute to determine the legislative intent when the words are plain, 

direct, or unambiguous.

4. Statutes: Appeal and Error. In construing statutory language, an appellate court 

attempts to give effect to all parts of a statute and to avoid rejecting a word, 

clause, or sentence as superfluous or meaningless.

5. ____: ____. An appellate court will not read into a statute a meaning that is 

not there.

Appeal from the District Court for Adams County: Steph

R. Illingworth, Judge. Affir

Stephen M. Bruckner and Russell A. Westerhold, of Fraser 

Stryker, P.C., L.L.O., and Timothy Knapp, of SourceGas 

Distribution LLC, for appellant.

Michael E. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., 

for appellee.

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

Miller-Lerman, and Cassel,

Miller-Lerman,

NATURE OF CASE

The City of Hastings, Nebraska, on behalf of the board of 

public works of the City of Hastings, had filed a petition in the 

county court for Adams County on January 15, 2013, seeking 

to initiate condemnation proceedings against property owned 

by SourceGas Distribution LLC that was located in an area that 

had been annexed by Hastings. Hastings brought its petition 

under the general condemnation procedures found at Neb. Rev. 

Stat. §§ 76-701 through 76-726 (Reissue 2009 & Cum. Supp. 

2012) (chapter 76). In an effort to enjoin the county court 

proceedings, on January 22, in a separate matter, SourceGas 

Distribution filed a complaint for temporary and permanent 

injunction in the district court for Adams County, primarily alleging that Hastings must utilize Nebraska’s Municipal 

Gas System Condemnation Act, Neb. Rev. Stat. §§ 19-4624 

through 19-4645 (Reissue 2012) (Gas System Condemnation 

Act), rather than the procedures in chapter 76. The district 

court case gives rise to this appeal.
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An evidentiary hearing was conducted on SourceGas 

Distribution’s motion for temporary injunction, and on February 

22, 2013, the district court filed an order overruling the motion 

for temporary injunction and dismissing the complaint. The 

district court concluded, inter alia, that § 19-4626(2) exempted 

Hastings from being required to proceed under the Gas System 

Condemnation Act and that Hastings could utilize the general 

condemnation procedures set forth in chapter 76. SourceGas 

Distribution appeals, assigning various errors. The district court 

stayed the condemnation proceedings pending this appeal. We 

conclude the district court correctly concluded that pursuant 

to § 19-4626(2), the Gas System Condemnation Act does not 

apply to this case, and that instead, chapter 76 applies. Finding 

no errors, we affirm.

STATEMENT OF FACTS

Hastings is located in Adams County and is a city of the first 

class as defined by Neb. Rev. Stat. § 16-101 (Reissue 2012). 

Hastings, by and through its board of public works, which is 

often referred to as “Hastings Utilities,” owns and operates its 

own municipal utility system.

SourceGas Distribution is a Delaware limited liability company with its principal place of business located in Golden, 

Colorado. SourceGas Distribution provides retail natural gas 

distribution service throughout Adams County, except for certain areas served by Hastings.

On March 14, 2011, Hastings’ city council adopted ordinance No. 4279 and thereby annexed an area east of Hastings, 

which primarily consisted of a community college campus. 

SourceGas Distribution owns easements, rights-of-way, natural gas pipelines, mains, distribution mains and lines, meters, 

measuring and regulating stations facilities, and appurtenances 

(gas facilities) in the area that was annexed. It is this collection of gas facilities which Hastings seeks to acquire through 

condemnation proceedings commenced in county court and to 

which SourceGas Distribution objects in its lawsuit filed in 

district court.

The record shows that on March 22, 2011, Hastings contacted SourceGas Distribution and commenced negotiations to 
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acquire SourceGas Distribution’s gas facilities located in the 

annexed area; however, the negotiations were not successful 

and ended in December 2012. After the negotiations failed, on 

January 15, 2013, Hastings commenced condemnation proceedings by filing a petition styled “Petition for Appointment of 

Appraisers” in county court. See City of Hastings v. SourceGas 

Distribution, Adams County Court, case No. CI 13-86. By the 

petition, Hastings sought to acquire the gas facilities owned 

by SourceGas Distribution in the annexed area by utilizing the 

condemnation procedures set forth in chapter 76.

The petition stated that Hastings had determined the necessity of acquiring

title and ownership to certain pipelines, mains, distribution mains and lines, meters, measuring and regulating 

stations, and other equipment and appurtenances, as well 

as any interests in real estate, including but not limited to 

fee simple title, easements, rights-of-way, licenses, and its 

customer accounts all owned by SourceGas Distribution, 

LLC or its affiliates, and all related to the distribution of 

natural gas . . . which are presently owned by [SourceGas 

Distribution]. This acquisition is being made in connection with a proposed project for the acquisition and/or 

installation of those Gas Facilities necessary to enable 

[Hastings] to furnish and distribute natural gas service to 

all natural gas customers located within an area recently 

annexed to the City of Hastings.

The petition further stated that Hastings sought to acquire “all 

of [SourceGas Distribution’s] Gas Facilities located within the 

boundaries of that certain area which was annexed by the City 

of Hastings on March 14, 2011,” and that the boundaries of the 

annexed area were described by legal description within the 

ordinance annexing the area, ordinance No. 4279, and the map 

attached thereto. A copy of ordinance No. 4279 and the map 

were attached to Hastings’ petition.

On January 22, 2013, in the separate matter before us, 

SourceGas Distribution filed its “Complaint for Temporary 

and Permanent Injunction and Other Equitable Relief” in 

district court, generally alleging that Hastings is unlawfully 

attempting to condemn the gas facilities by proceeding under 
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the general condemnation procedures set forth in chapter 76. 

In the complaint, SourceGas Distribution specifically alleged 

that it was entitled to an injunction because the proper procedures that Hastings must utilize to condemn SourceGas 

Distribution’s gas facilities are set forth in the Gas System 

Condemnation Act rather than in chapter 76. SourceGas 

Distribution also alleged in its complaint that Hastings failed 

to comply with § 76-704.01 because it failed to precisely 

describe in its county court petition the property sought to 

be condemned. SourceGas Distribution further alleged that 

Hastings failed to negotiate with SourceGas Distribution in 

good faith prior to commencing condemnation. Attached to 

SourceGas Distribution’s complaint was a copy of a description of real property owned by SourceGas Distribution in the 

annexed area and a copy of Hastings’ condemnation petition 

and its exhibits.

On the same date that SourceGas Distribution filed its complaint, it also filed a “Motion for Temporary Injunction” seeking to temporarily enjoin Hastings from condemning the gas 

facilities owned by SourceGas Distribution. A hearing was held 

on the motion on January 29, 2013. At the hearing, SourceGas 

Distribution offered and the district court received three affidavits, and Hastings offered and the district court received 

two affidavits. The district court granted the parties leave 

to file additional affidavits. Hastings offered three additional 

affidavits, including that of Lash Chaffin from the League of 

Nebraska Municipalities, describing, inter alia, his understanding of the relevance of the Gas System Condemnation Act. On 

February 12, SourceGas Distribution filed written objections 

to Chaffin’s affidavit, based on hearsay, insufficient foundation, and relevance. On February 22, the district court received 

the three additional exhibits offered by Hastings, including 

Chaffin’s affidavit.

On February 22, 2013, the district court filed its “Journal 

Entry and Order of Dismissal,” in which it overruled SourceGas 

Distribution’s motion for temporary injunction and dismissed 

SourceGas Distribution’s complaint.

With respect to the applicable law, the district court rejected 

SourceGas Distribution’s argument that Hastings must utilize 
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the procedures set forth in the Gas System Condemnation Act 

to condemn SourceGas Distribution’s property. The centerpiece 

of the district court’s conclusion as to the applicable statute 

was its determination that § 19-4626(2) exempts Hastings from 

proceeding under the Gas System Condemnation Act. Section 

19-4626(2) provides: “Nothing in the act shall be construed to 

govern or affect the manner in which a city which owns and 

operates its own gas system condemns the property of a utility 

when such property is brought within the corporate boundaries of the city by annexation.” The district court noted that 

Hastings owns its own gas system and had previously annexed 

the area in question.

With respect to the merits, the district court reasoned that 

SourceGas Distribution had not suffered and will not suffer 

irreparable harm due to the condemnation proceedings because 

the only harm SourceGas Distribution could suffer is financial, 

and under chapter 76, Hastings is obligated to compensate 

SourceGas Distribution for its loss. The district court further 

determined that SourceGas Distribution did not have a clear 

right to the relief it sought and that it is not against the public 

interest for Hastings to utilize the condemnation procedures 

under chapter 76. The district court did not directly address 

the issue of whether the property was adequately described 

in the condemnation petition. Based on the above reasoning, 

the district court overruled SourceGas Distribution’s motion 

for temporary injunction, stated that it is “obvious [SourceGas 

Distribution] would not succeed on the merits of its complaint,” and dismissed its complaint.

SourceGas Distribution appeals. The district court stayed the 

condemnation proceedings pending this appeal.

ASSIGNMENTS OF ERROR

SourceGas Distribution assigns on appeal, restated, that 

the district court generally erred when it denied SourceGas 

Distribution’s motion for temporary injunction and dismissed 

its complaint. SourceGas Distribution specifically claims that 

the district court erred when it concluded that chapter 76 and 

not the Gas System Condemnation Act was applicable to the 

condemnation of the gas facilities. SourceGas Distribution also 
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claims the district court erred when it failed to find that the 

description of the property to be appraised in the county court 

matter was inadequate and when it received Chaffin’s affidavit 

into evidence.

STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law that 

an appellate court independently reviews. In re Estate of 

Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).

ANALYSIS

[2-5] Because its reading of § 19-4626(2) of the Gas 

System Condemnation Act was fundamental to the district 

court’s resolution of the case, we are asked on appeal to construe § 19-4626(2). We begin by turning to the familiar canons 

of statutory construction. Absent anything to the contrary, 

an appellate court will give statutory language its plain and 

ordinary meaning. Strasburg v. Union Pacific RR. Co., 286 

Neb 743, 839 N.W.2d 273 (2013). We will not look beyond a 

statute to determine the legislative intent when the words are 

plain, direct, or unambiguous. Fisher v. PayFlex Systems USA, 

285 Neb. 808, 829 N.W.2d 703 (2013). In construing statutory 

language, we attempt to give effect to all parts of a statute and 

to avoid rejecting a word, clause, or sentence as superfluous 

or meaningless. See id. Likewise, we will not read into a statute a meaning that is not there. Blakely v. Lancaster County, 

284 Neb. 659, 825 N.W.2d 149 (2012). Based on these principles and given our independent reading of the plain language 

of § 19-4626(2) discussed below, we need not refer to the 

substance of Chaffin’s affidavit in the resolution of this case. 

The admission of Chaffin’s affidavit, if error, was harmless. 

See Simon v. Drake, 285 Neb. 784, 792, 829 N.W.2d 686, 

692 (2013) (stating that “[i]n a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly 

prejudiced a substantial right of the complaining party”).

Therefore, we determine that SourceGas Distribution’s assignment of error regarding the admission of Chaffin’s affidavit is 

without merit.
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Chapter 76 ordinarily applies to condemnation proceedings, 

and the general condemnation procedures found in chapter 76 

apply unless there are more specific statutes that will govern 

the condemnation proceedings. Section 76-703 provides that if 

the condemnation proceedings will result in a decrease in the 

condemnee’s territory or volume of service, then the determination of damages shall be determined pursuant to the more 

specific statutes rather than the damage provisions found in 

chapter 76, if those other statutes apply to the condemnation at 

issue. Section 76-703 provides:

Damages to be paid by the condemner for any property 

including parts of or easements across rights-of-way of 

a public utility or a railroad taken through the exercise 

of the power of eminent domain shall be ascertained and 

determined as provided in sections 76-704 to 76-724, 

except that if it is sought to condemn the property, or 

such part thereof as will result in a decrease in the territory or volume of service, of a public utility engaged 

in the rendition of existing service, such damages shall 

be ascertained and determined as provided in sections 

19-701 to 19-707 [pertaining to waterworks, electric utilities, and railways] and 70-650 [pertaining to electric distribution systems] or the . . . Gas System Condemnation 

Act, when applicable.

SourceGas Distribution contends that because the condemnation proceedings by Hastings will result in a decrease of 

SourceGas Distribution’s territory or volume of service, one 

of the specific statutes listed in § 76-703, rather than chapter 

76, shall apply to the determination of damages. We disagree. 

In this regard, we note that § 76-703 provides that damages 

shall be ascertained under one of the more specific statutes 

instead of chapter 76 only “when [those other statutes are] 

applicable”—a determination made by reference to the provisions of those other statutes.

Sections 19-701 through 19-707 and Neb. Rev. Stat. 

§ 70-650 (Reissue 2009) are mentioned in § 76-703 and are not 

applicable to the facts of this case. Section 70-650 applies to 

electric distribution systems. Sections 19-701 through 19-707 
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set forth condemnation procedures regarding “any waterworks, waterworks system, electric light plant, electric light 

and power plant, heating plant, street railway, or street railway 

system.” § 19-701. Although gas systems were formerly governed by §§ 19-701 through 19-707, in 2002, the Legislature 

adopted 2002 Neb. Laws, L.B. 384, creating the Gas System 

Condemnation Act, thus removing gas systems from §§ 19-701 

through 19-707.

Continuing our examination of § 76-703, we note that the 

Gas System Condemnation Act is mentioned therein, but as 

explained below, we conclude, as did the district court, that 

the Gas System Condemnation Act is not applicable to the 

condemnation procedure and determination of damages in this 

case. Generally, a city may acquire and appropriate a gas system through eminent domain by following the procedures set 

forth in the Gas System Condemnation Act. See § 19-4625. 

However, § 19-4626 sets forth exceptions identifying circumstances when the Gas System Condemnation Act will not 

apply to a gas system condemnation. Section 19-4626(2), 

provides: “Nothing in the act shall be construed to govern or 

affect the manner in which a city which owns and operates 

its own gas system condemns the property of a utility when 

such property is brought within the corporate boundaries of 

the city by annexation.” Therefore, § 19-4626(2) provides that 

the Gas System Condemnation Act does not apply when a city 

owns and operates its own gas system and the property that is 

being condemned is within the corporate boundaries of the city 

by annexation.

In this case, it is not disputed that Hastings owns and operates its own gas system, and the property consisting of gas 

facilities owned by SourceGas Distribution that are at issue 

are located in an area that was brought within the corporate boundaries of Hastings by annexation. The language of 

§ 19-4626(2) is unambiguous, and we will give the language 

its plain and ordinary meaning. Strasburg v. Union Pacific RR. 

Co., 286 Neb. 743, 839 N.W.2d 273 (2013). Under the plain 

language of § 19-4626(2), we conclude the district court was 

correct when it determined that pursuant to § 19-4626(2), the 
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Gas System Condemnation Act does not apply to this case, and 

that instead, the general condemnation procedures set forth in 

chapter 76 apply.

Despite the plain language of § 19-4626(2), SourceGas 

Distribution asserts that because of differing language between 

§ 19-4626(1) and (2), the exception found at § 19-4626(2) 

does not apply to this case. SourceGas Distribution reasons 

that the gas facilities which Hastings seeks to condemn are part 

of a gas system and that § 19-4626(2) exempts only property 

that is not part of a gas system. We disagree with SourceGas 

Distribution’s reading of these provisions.

SourceGas Distribution points to § 19-4626(1), which 

provides:

A city may condemn the property of a utility which constitutes a portion of a gas system without complying with 

the . . . Gas System Condemnation Act if the condemnation is necessary for the public purpose of acquiring an 

easement or right-of-way across the property of the utility 

or is for the purpose of acquiring a portion of the gas system for a public use unrelated to the provision of natural 

gas service.

(Emphasis supplied.)

SourceGas Distribution contends that the phrase “the property of a utility which constitutes a portion of a gas system” 

in § 19-4626(1) differs from the phrase “the property of a utility” in § 19-4626(2) and that by using these differing phrases, 

the Legislature intended the phrase “the property of a utility” 

in § 19-4626(2) to cover only property that is not “a portion 

of a gas system.” Under the view of SourceGas Distribution, 

chapter 76 would apply to property that is not a portion of 

the gas system, but the Gas System Condemnation Act would 

apply to property that is a portion of a gas system. Applying 

its interpretation of the statutes, SourceGas Distribution thus 

contends that the exception in § 19-4626(2) does not exempt 

Hastings from following the procedures of the Gas System 

Condemnation Act in this case in which Hasting seeks to 

condemn the gas facilities at issue, because the gas facilities 

are in fact a portion of a gas system and § 19-4626(2) does 
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not exempt such property from application of the Gas System 

Condemnation Act.

We believe that the difference in the phrases used 

in § 19-4626(1) and (2) is not meaningful, and we reject 

SourceGas Distribution’s argument. We understand the phrase 

“the property of a utility” in § 19-4626(2) to include the real 

and personal property of a utility, and therefore, this phrase 

anticipates the current case where Hastings is seeking to condemn gas facilities owned by SourceGas Distribution. There is 

no need to characterize such property as being or not being a 

portion of a gas system.

The district court essentially determined that Hastings was 

properly proceeding in county court under chapter 76 and 

that SourceGas Distribution was not going to succeed on its 

complaint. We agree with the district court’s assessment of 

the record. Thus, the district court did not err when it denied 

SourceGas Distribution’s motion for temporary injunction and 

dismissed its complaint.

SourceGas Distribution also claims on appeal that the district court erred in its treatment of its claim challenging the 

sufficiency of the description of the property that Hastings 

sought to be appraised in the county court matter. The district 

court did not explicitly address the issue of the sufficiency of 

the description in its February 22, 2013, order. We agree with 

the district court that it is premature to address this issue in 

this case. Thus, we find no error in this regard and we do not 

comment on the sufficiency of the description. See Brodine 

v. State, 180 Neb. 433, 143 N.W.2d 361 (1966) (in matter 

which commenced in county court, affirming district court’s 

order affirming appraisers’ award and finding that description 

of property in pleading and accompanying map were sufficiently accurate).

CONCLUSION

We find no merit to the assigned errors. The district court 

correctly concluded that pursuant to the exception set forth 

in § 19-4626(2), the Gas System Condemnation Act does not 

apply and, instead, the general condemnation procedures of 
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chapter 76 apply. This determination of law controls the outcome of this case, and we therefore determine that the district 

court did not err when it denied SourceGas Distribution’s 

motion for temporary injunction and dismissed its complaint.

Affirmed

State of Nebraska, appellee, v.

Danny R. Robinson, Jr., ap

___ N.W.2d ___

Filed March 7, 2014. No. S-13-306.

1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional 

question that does not involve a factual dispute as a matter of law.

2. Postconviction: Appeal and Error. In appeals from postconviction proceedings, 

an appellate court independently resolves questions of law.

3. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel 

provided ineffective assistance presents a mixed question of law and fact. When 

reviewing a claim of ineffective assistance of counsel, an appellate court reviews 

the factual findings of the lower court for clear error. With regard to the questions 

of counsel’s performance or prejudice to the defendant as part of the two-pronged 

test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision.

4. Postconviction: Final Orders. Within a postconviction proceeding, an order 

granting an evidentiary hearing on some issues and denying a hearing on others 

is a final order as to the claims denied without a hearing.

5. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et 

seq. (Reissue 2008), provides that postconviction relief is available to a prisoner 

in custody under sentence who seeks to be released on the ground that there was 

a denial or infringement of his constitutional rights such that the judgment was 

void or voidable.

6. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance 

of counsel claim alleges a violation of the fundamental constitutional right to a 

fair trial.

7. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her 

counsel’s performance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense. A court may address the two prongs of this 

test, deficient performance and prejudice, in either order.

8. Effectiveness of Counsel: Proof: Words and Phrases. In addressing the “prejudice” component of the test in Strickland v. Washington, 466 U.S. 668, 104 S.