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TransCanada Keystone Pipeline, LP, ap

cross-appellee, v. Nicholas Family Limited Partne

et al., appellees and cross-appellan

TransCanada Keystone Pipeline, LP, ap

cross-appellee, v. William F. Dunavan et a

appellees and cross-appellan

TransCanada Keystone Pipeline, LP, a

v. Bartels Farms Inc., appel

TransCanada Keystone Pipeline, LP, a

v. John F. Small et al., appellee

____ N.W.2d ___

Filed March 9, 2018. Nos. S-17-116 through S-17-134, S-17-366, S-17-367, 

S-17-369, S-17-424, S-17-741 through S-17-745, S-17-747, S-17-748, 

S-17-750, S-17-751, and S-17-753 through S-17-760.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision made by the court 

below.

2. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision 

awarding or denying attorney fees will be upheld absent an abuse of 

discretion.

3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews 

for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

4. Hearsay: Words and Phrases. Hearsay is defined as a statement, other 

than one made by the declarant while testifying at the trial or hearing, 

offered in evidence to prove the truth of the matter asserted.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/23/2018 08:13 AM CDT
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5. Rules of Evidence: Affidavits. An affidavit is admissible in certain 

enumerated situations, including motion practice, which includes the use 

of affidavits relating to preliminary, collateral, and interlocutory matters.

6. Attorney Fees: Pleadings. A motion for attorney fees under Neb. Rev. 

Stat. § 76-726 (Reissue 2009) is a collateral and independent request 

from the underlying merits of the case between the parties.

Appeals from the District Court for Holt County, Mark D

Kozisek, Judge, on appeal thereto from the County Court for

Holt County, Alan L. Brodbeck, J

Appeals from the District Court for York County, Mary C.

Gilbride, Judge, on appeal thereto from the County Court for 

York County, Linda S. Caster Senff,

Appeal from the District Court for Saline County, Vicky 

Johnson, Judge, on appeal thereto from the County Court fo

Saline County, Linda A. Bauer, Ju

Appeals from the District Courts for Nance, Boone, and 

Polk Counties, Rachel A. Daugherty, Judge, on appeal the

from the County Courts for Nance, Boone, and Polk Counties, 

Stephen R.W. Twiss, J

Judgments of District Courts reversed, and causes remanded 

with directions.

James G. Powers and Patrick D. Pepper, of McGrath, North, 

Mullin & Kratz, P.C., L.L.O., for appellant.

David A. Domina and Brian E. Jorde, of Domina Law 

Group, P.C., L.L.O., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Funke, JJ

Heavican, C

INTRODUCTION

These 40 appeals have been consolidated into 4 for purposes of appeal. At issue in each case is whether the individual 
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landowners are entitled to an award of attorney fees under 

Neb. Rev. Stat. § 76-726 (Reissue 2009). We conclude that the 

landowners did not offer sufficient proof as to their entitlement 

to an award of attorney costs and fees.

FACTUAL BACKGROUND

TransCanada Keystone Pipeline, LP (TransCanada), is 

a limited partnership wishing to construct an oil pipeline, 

Keystone XL, through the State of Nebraska. On January 

20, 2015, and in connection with this proposed construction, 

TransCanada filed a number of eminent domain proceedings 

in various counties, seeking to acquire right-of-way and other 

property interests.

On January 16, 2015, just prior to TransCanada’s initiation 

of these proceedings, certain property owners (including some 

of the same landowners involved in these eminent domain proceedings) filed, in York County District Court, a constitutional 

challenge to the pipeline route as approved by Nebraska’s 

Governor. As a result of this challenge, TransCanada and the 

landowners agreed to stay the eminent domain proceedings 

while the constitutional challenge was being litigated.

TransCanada dismissed its condemnation petitions on 

October 1, 2015, except that the Holt County petitions were 

dismissed on September 30, in order for TransCanada to 

pursue approval of a pipeline route by the Public Service 

Commission:

TransCanada . . . (“Keystone”) . . . hereby dismisses, 

without prejudice, its Petition for Condemnation in this 

matter. Keystone will be seeking route approval pursuant to Neb. Rev. Stat. § 57-1401 et seq., also known as 

the Major Oil Pipeline Siting Act. In the event the route 

approval is granted, Keystone will reinstitute eminent 

domain proceedings if necessary.

The landowners filed the motions for attorney fees and costs 

at issue in these consolidated appeals on October 6, 2015, 

except that the Holt County motions were filed on October 2. 
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The motions were brought pursuant to § 76-726 and requested 

that the various county courts award to the landowners costs, 

expenses, and attorney fees for work done in connection with 

both the county court eminent domain proceedings and the 

constitutional challenge. These requests were accompanied by 

affidavits from (1) the individual landowners, (2) counsel for 

the landowners, and (3) other attorneys attesting to the reasonableness of the attorney fees charged. In each instance, 

TransCanada objected to the landowner affidavits on the basis 

of hearsay.

In each of these cases, the county court granted the requests 

for attorney fees and TransCanada appealed. In the cases 

docketed at Nos. S-17-116 through S-17-134 (Holt County 

cases), the district court (1) found that the county court erred 

in admitting the landowner affidavits because they were hearsay, but that the admission was not reversible error because 

TransCanada did not insist upon a ruling on its objection and 

thus waived the objection; (2) found that the dismissals without prejudice amounted to an abandonment of the condemnation proceedings; and (3) reversed the awards of attorney fees 

and costs, because there was no evidence that the landowners 

actually incurred costs or fees as required by § 76-726, and 

remanded the causes to the county court for redetermination.

In the case docketed at No. S-17-424 (Saline County case), 

the district court found that (1) the county court did not err in 

admitting the landowner affidavits and did not err in failing to 

rule on TransCanada’s hearsay objection because TransCanada 

did not insist upon a ruling and thus waived the objection, (2) 

the dismissals without prejudice amounted to an abandonment 

of the condemnation proceedings, and (3) the award of attorney fees and costs was proper because the landowner affidavit 

testimony showed an agreement to pay fees.

In the cases docketed at Nos. S-17-366, S-17-367, and 

S-17-369 (York County cases), the district court found that (1) 

the dismissals without prejudice amounted to an abandonment 

of the condemnation proceedings and (2) the fees sought may 
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be proved by affidavit, but the affidavits offered into evidence 

did not allow the court to determine the amount actually 

incurred, and thus, the award was reversed and the cause was 

remanded for further proceedings.

Finally, in the cases docketed at Nos. S-17-741 through 

S-17-745, S-17-747, S-17-748, S-17-750, S-17-751, and 

S-17-753 through S-17-760 (Nance, Boone, and Polk County 

cases), the district court found that (1) the dismissals without 

prejudice amounted to an abandonment of the condemnation 

proceedings and (2) the attorney fees sought may be proved 

by affidavit and the award was proper because the landowners’ affidavit testimony showed an agreement to pay attorney fees.

ASSIGNMENTS OF ERROR

Cases Nos. S-17-116 through S-17-134.

In these appeals, TransCanada assigns that that district 

court for Holt County erred in (1) finding that TransCanada 

waived its hearsay objections to the landowners’ affidavits and 

holding that the county court did not err in admitting those 

affidavits and (2) remanding the causes to the county court for 

further proceedings on the amount of attorney fees and costs 

the landowners actually incurred.

On cross-appeal, the landowners assign that the district court 

erred in (1) failing to affirm the county court’s award of attorney fees, (2) finding there was insufficient evidence to show 

that the landowners actually incurred the attorney fees awarded 

by the county court, (3) finding that an application for attorney 

fees under § 76-726 requires evidence of legal fees “actually 

‘paid,’” and (4) finding that the landowners’ affidavit evidence 

was hearsay.

Case No. S-17-424.

In this appeal, TransCanada assigns that the district court 

for Saline County erred in (1) finding that the landowners’ 

affidavit evidence was admissible to prove attorney fees and 

costs under § 76-726 and that TransCanada waived its hearsay 
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objection and (2) affirming the county court’s award of attorney fees and costs without proof of payment and without evidence showing the amount of attorney fees actually charged or 

how those fees were charged.

Cases Nos. S-17-366, S-17-367, 

and S-17-369.

In these appeals, TransCanada assigns that the district court 

for York County erred in (1) finding that the landowners’ affidavit evidence was admissible to prove attorney fees and costs 

under § 76-726 and (2) construing § 76-726 to hold that reimbursement was allowed without proof of payment and accordingly remanding the cause to the county court for a determination of the attorney fees actually incurred.

On cross-appeal, the landowners assign that the district court 

erred in (1) failing to affirm the county court’s award of legal 

fees and (2) finding there was insufficient evidence to show 

that the landowners actually incurred the attorney fees awarded 

by the county court.

Cases Nos. S-17-741 through S-17-745, 

S-17-747, S-17-748, S-17-750, 

S-17-751, and S-17-753 

through S-17-760.

In these appeals, which by stipulation of the parties were 

all heard in the Nance County District Court, TransCanada 

assigns that the district court for Nance County erred in (1) 

finding that the landowners’ affidavit evidence was admissible to prove attorney fees and costs under § 76-726 and (2) 

affirming the county court’s award of attorney fees and costs 

without proof of payment and without evidence showing the 

amount of attorney fees actually charged or how those fees 

were charged.

STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law, 

on which an appellate court has an obligation to reach an 
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independent conclusion irrespective of the decision made by 

the court below.1

[2] On appeal, a trial court’s decision awarding or denying 

attorney fees will be upheld absent an abuse of discretion.2

[3] Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection or exclude evidence on 

hearsay grounds.3

ANALYSIS

These appeals generally present three issues: (1) whether 

TransCanada waived its hearsay objection, (2) whether the 

affidavits were admissible, and (3) whether the proof in these 

cases was sufficient.

Attorney fees in these cases were requested under the authority of § 76-726, which provides in relevant part:

(1) The court having jurisdiction of a proceeding 

instituted by an agency as defined in section 76-1217 

to acquire real property by condemnation shall award 

the owner of any right, title, or interest in such real 

property such sum as will, in the opinion of the court, 

reimburse such owner for his or her reasonable costs, 

disbursements, and expenses, including reasonable attorney’s, appraisal, and engineering fees, actually incurred 

because of the condemnation proceedings if (a) the final 

judgment is that the agency cannot acquire the real 

property by condemnation or (b) the proceeding is abandoned by the agency. If a settlement is effected, the court 

may award to the plaintiff reasonable expenses, fees, 

and costs.

1 Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).

2 Id.

3 O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).
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Waiver.

In its appeals in the Holt County and Saline County cases, 

TransCanada assigns that the district court erred in finding 

that it waived its hearsay objection by failing to insist upon 

a ruling. We need not address the waiver issue as presented 

by these cases, because, as is addressed in more detail below, 

we reject the hearsay issue in the York County and Nance 

County appeals.

Admissibility of Affidavits.

TransCanada next argues that the affidavits were inadmissible, both because they consisted of hearsay and because 

§ 76-726 requires a higher level of proof.

[4] We turn first to TransCanada’s hearsay contention. 

Hearsay is defined as “a statement, other than one made by 

the declarant while testifying at the trial or hearing, offered 

in evidence to prove the truth of the matter asserted.”4 As 

TransCanada correctly notes, it is “beyond question” that these 

affidavits contain hearsay.5

[5] But as TransCanada also points out, under Neb. Rev. 

Stat. § 25-1244 (Reissue 2016), an affidavit is admissible in 

certain enumerated situations, including “motion practice,” 

which includes the use of affidavits relating to preliminary, 

collateral, and interlocutory matters.6 TransCanada suggests, without authority, that a motion for attorney fees under 

§ 76-726 fits under none of these categories; the landowners 

argue that these types of motions are obviously collateral for 

purposes of § 25-1244 motion practice.

[6] We have previously suggested, as the landowners now 

contend, that a motion for attorney fees is a “collateral and 

independent request from the underlying merits of the case 

4 Neb. Rev. Stat. § 27-801(3) (Reissue 2016).

5 See, e.g., brief for appellant in cases Nos. S-17-116 through S-17-134 

at 12.

6 Id.
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between the parties.”7 This makes logical sense—without the 

underlying action, there would be nothing for which to seek an 

award of attorney fees.

In fact, we have suggested that affidavits are a preferred 

method of introducing such evidence:

The best practice will always be to provide an affidavit or other evidence such as testimony or exhibits 

as detailed above, and we certainly encourage doing so. 

With such evidence, a party is assured that both the trial 

court and the appellate court will not be required to scour 

a record in an effort to support attorney fees in any particular case.

We will not absolutely require the filing of an affidavit. . . . But we emphasize that the filing of an affidavit or presentation of other evidence will always be 

the preferable way to support the award of attorney 

fees. Litigants who do not file an affidavit or present 

other evidence risk the loss of attorney fees, because of 

the difficulty of discerning such information from the 

record alone.8

We hold accordingly in this case. Affidavits are generally 

admissible in collateral matters, and a motion for attorney fees 

under § 76-726 is such a collateral matter.

TransCanada also contends that affidavits are insufficient 

under § 76-726 and that live testimony is required. It cites 

no authority for this proposition. Having examined the language of § 76-726, we find it to be without merit. We find 

no error in the district court’s admission of the affidavits in 

this case.

7 Kaminski v. Bass, 252 Neb. 760, 768, 567 N.W.2d 118, 123 (1997). See, 

also, Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997, 679 

N.W.2d 235 (2004).

8 See Garza v. Garza, 288 Neb. 213, 221, 846 N.W.2d 626, 633 (2014). See, 

also, ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 

896 N.W.2d 156 (2017).
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Sufficiency of Proof.

TransCanada next contends that there was insufficient proof 

to support the award of attorney fees and costs for two reasons: (1) The landowners were only entitled to an award 

of attorney fees actually paid by them to counsel, and the 

affidavits did not establish that any funds had been paid out 

by the individual landowners to counsel, and (2) the record, 

even including the challenged affidavits, was insufficient to 

establish that any individual landowner was actually indebted 

to counsel.

We turn to TransCanada’s argument that under § 76-726, 

the landowners were only entitled to an award of attorney fees 

actually paid by them to counsel. In making this assertion, 

TransCanada notes that § 76-726 is different from other attorney fees statutes because it provides for reimbursement.

We agree with TransCanada insofar as it notes that this 

attorney fees statute is different from most other statutes allowing for an award of attorney fees. Most other statutes simply 

provide, where relevant, that reasonable attorney fees may be 

awarded.9 But § 76-726(1) provides for “reimburse[ment of] 

costs, disbursements, and expenses . . . actually incurred.”

But just because § 76-726 is a “reimbursement” statute, it 

does not follow that the landowners must have actually paid 

counsel in order to be entitled to an award of attorney fees. 

Merriam Webster defines “reimburse” as meaning “to pay 

back . . . someone[,] repay.”10 Black’s Law Dictionary defines 

“incur” as a verb meaning “[t]o suffer or bring on oneself (a 

liability or expense).”11 And “actual” is defined as “[e]xisting 

in fact; real.”12 This is supported by this court’s prior case 

9 See, e.g., Neb. Rev. Stat. §§ 25-21,108, 29-3004, and 30-4017 (Reissue 

2016) and 59-821 (Reissue 2010).

10 Webster’s Third New International Dictionary of the English Language, 

Unabridged 1914 (1993).

11 Black’s Law Dictionary 885 (10th ed. 2014).

12 Id. at 42.
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law defining the phrase “actually incurred,” in a case involving the Nebraska Trust Deeds Act, as “a fee that is based on 

services rendered.”13

The plain language of § 76-726, then, requires only that the 

landowners be indebted to counsel for services rendered and 

that the attorney fees charged be reasonable. There is no support in that language for the conclusion that the fees and costs 

must have already been paid for by the landowner.

As an initial matter, we observe that there is no dispute 

over the reasonableness of attorney fees requested in this 

case, and affidavits from other practicing attorneys attesting 

to that reasonableness are part of our record. The conclusion regarding reasonableness, though, has no bearing on 

whether the landowners’ affidavits were sufficient to support 

an award of attorney fees and costs. Accordingly, we turn to 

that question.

In Holt County, the landowners in some affidavits only 

generally averred that they were represented by counsel. A few 

other Holt County affidavits included language stating that the 

landowners “[were] indebted to [counsel] for the success they 

achieved and agree that the fees they seek for services are the 

landowners’ reasonable obligation. We want TransCanada to 

be ordered to pay this sum, along with expenses incurred on 

our behalf.” In York, Saline, and Nance Counties, the landowners averred that they

entered into a written fee agreement with [counsel] and 

are indebted to them for legal services they provided and 

expenses they advanced on our behalf. . . .

. . . .

. . . We entered into [a] written engagement agreement 

with [counsel] requiring us to pay for all legal services 

and to reimburse [counsel] for expenses they expended 

on our behalf.

13 Arizona Motor Speedway v. Hoppe, 244 Neb. 316, 323, 506 N.W.2d 699, 

703 (1993).
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. . . .

. . . We are indebted to [counsel] for the success they 

achieved and agree that the fees and expenses they seek 

for services are reasonable and the landowners’ obligation. We want TransCanada to be ordered to pay the sums 

requested, along with expenses incurred on our behalf 

because this includes the money we have paid for legal 

services and expenses and our debts incurred.

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.14

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 

14 See Garza v. Garza, supra note 8.
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evidence sufficient to support the award of attorney fees, we 

find that the county courts’ awards were in error.

Resolution.

We conclude that none of the landowners established that 

they were entitled to attorney fees. As such, we reverse the 

decisions of the Saline and Nance County District Courts. We 

remand the causes to those courts, with instructions for those 

courts to remand the causes to the county courts, with directions for those courts to vacate the awards of attorney fees.

We observe that the Holt and York County District Courts 

vacated the amount of the awards of attorney fees, but remanded 

the causes for further proceedings. We agree with TransCanada 

that such a remand was error. Accordingly, in those cases, we 

reverse the district courts’ decisions remanding for further 

proceedings.

CONCLUSION

For the reasons set forth above, the decisions of the district courts are reversed and the causes are remanded with 

directions.

Reversed and remanded with direc

Wright, J., not participating