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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

Pinnacle Enterprises, Inc., appellant, v. 

City of Papillion, Nebraska, appellee.

___ N.W.2d ___

Filed February 22, 2019. No. S-18-365.

1. Statutes. Statutory interpretation presents a question of law.

2. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law which requires an appellate court to reach its conclusions independent from a trial court.

3. Trial: Appeal and Error. The standard of review of a trial court’s 

determination of a request for sanctions is whether the trial court abused 

its discretion.

4. Actions: Waiver: Appeal and Error. Under the law-of-the-case doctrine, a well-recognized waiver rule has emerged: A decision made at 

a previous stage of litigation, which could have been challenged in the 

ensuing appeal but was not, becomes the law of the case; the parties are 

deemed to have waived the right to challenge that decision.

5. Actions: Appeal and Error. When an appellate court remands a case to 

an inferior tribunal, the law-of-the-case doctrine prevents that court from 

taking action inconsistent with the judgment of the appellate court.

6. Trial: Judgments: Pleadings. A trial court, in its discretion, may permit the renewal and resubmission of a motion which has previously 

been overruled.

7. Courts: Judgments: Time. No court is required to persist in error, and, 

if the court concludes that a former ruling was wrong, the court may 

correct it at any time while the case is still in the court’s control.

8. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

9. Eminent Domain: Jurisdiction: Notice: Appeal and Error. In a condemnation action, only the filing of the notice of appeal and, by extension, service of this notice is jurisdictional.

Nebraska Supreme Court Online Library

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

03/22/2019 01:07 PM CDT
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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

10. Courts: Judgments: Pleadings: Appeal and Error. Under Neb. Rev. 

Stat. § 76-717 (Reissue 2018), only where it becomes necessary for a 

district court to order an appealing party to file a petition on appeal does 

it also become necessary for the court to impose such sanctions as are 

reasonable. In crafting a reasonable sanction, a court should consider the 

circumstances and any resulting prejudice to other parties.

11. Actions: Attorney Fees: Words and Phrases. Under Neb. Rev. Stat. 

§ 25-824(4) (Reissue 2016), the term “frivolous” connotes an improper 

motive or legal position so wholly without merit as to be ridiculous.

Appeal from the District Court for Sarpy County: George

A. Thompson, Judge. Affirmed in part, and in part reversed and 

remanded for further proceedings.

Jason M. Bruno and James L. Schneider, of Sherrets, Bruno 

& Vogt, L.L.C., for appellant.

Daniel J. Fischer and Julie A. Ward, of Koley Jessen, P.C., 

L.L.O., and Karla R. Rupiper, Papillion City Attorney, and 

Amber L. Rupiper for appellee.

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

Freudenberg, JJ.

Cassel, J.

INTRODUCTION

The City of Papillion, Nebraska (Papillion), condemned 

land owned by Pinnacle Enterprises, Inc. (Pinnacle). Pinnacle 

appealed the award to district court. After 41⁄2 years and one 

judicial recusal, the court dismissed the appeal for lack of jurisdiction. Because the plain language of Neb. Rev. Stat. § 76-717 

(Reissue 2018) confers jurisdiction once a notice of appeal is 

filed, the court erred in dismissing the appeal and we reverse 

that dismissal. But the court did not abuse its discretion in 

denying Pinnacle’s motion for sanctions relating to Papillion’s 

motion for summary judgment, and we affirm that denial.

BACKGROUND

Because much of this appeal centers upon the meaning of 

§ 76-717, we quote it in full:
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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

Within thirty days after the filing of such notice of 

appeal, the county judge shall prepare and transmit to the 

clerk of the district court a duly certified transcript of all 

proceedings had concerning the parcel or parcels of land 

as to which the particular condemnee takes the appeal 

upon payment of the fees provided by law for preparation thereof. When notice of appeal is filed by both the 

condemner and the condemnee, such transcript shall be 

prepared only in response to the first notice of appeal. 

The transcript prepared in response to the second notice 

of appeal shall contain only a copy of such notice and the 

proceedings shall be filed in the district court as a single 

cause of action.

The filing of the notice of appeal shall confer jurisdiction on the district court. The first party to perfect an 

appeal shall file a petition on appeal in the district court 

within fifty days after the filing of the notice of appeal. If 

no petition is filed, the court shall direct the first party to 

perfect an appeal to file a petition and impose such sanctions as are reasonable. The appeal shall be tried de novo 

in the district court. Such appeal shall not delay the acquisition of the property and placing of same to a public use 

if the condemner shall first deposit with the county judge 

the amount assessed by the appraisers.

Although § 76-717 was amended in 2018,1 the amendment did 

not change any of the language relevant to this appeal and for 

convenience, we quote the current statute.

Papillion initiated condemnation proceedings in the county 

court. An amended return of the appraisers’ award was entered 

on July 23, 2013. On August 13, Pinnacle filed its notice of 

appeal.

On October 15, 2013, 13 days after the 50-day time period 

for filing the petition on appeal,2 Papillion filed a motion 

1 2018 Neb. Laws, L.B. 193, § 89.

2 See § 76-717.
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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

to dismiss the appeal, which was scheduled for hearing in 

November. Two days later, on October 17, Pinnacle filed its 

petition on appeal. At the time Pinnacle did so, no order had 

been entered by the district court addressing the filing of a 

petition on appeal. In due course, the court held a hearing on 

Papillion’s motion to dismiss, which the original district court 

judge summarily denied.

Pinnacle later filed a motion in limine, which sought to preclude Papillion from introducing evidence that would diminish 

the taking. The court granted the motion in limine. That ruling 

relates to the arguments asserted now regarding the denial of 

Pinnacle’s motion for sanctions.

After 3 years of discovery and settlement discussions, the 

original judge informed the parties that he had a close personal 

friendship with one of Pinnacle’s appraisers. Papillion moved 

for recusal. The original judge sustained the motion, and the 

court reassigned the case to the second judge.

In September 2017, Papillion moved for partial summary 

judgment. Papillion asserted summary judgment on the following issues: (1) Papillion took a limited permanent easement; (2) 

Papillion took a permanent easement for the purpose of constructing, relocating, and maintaining 84th Street in Papillion 

as part of a larger project; (3) Papillion’s permanent easement 

does not include a taking of Pinnacle’s right of access to and 

from 84th Street; and (4) the easement does not prohibit or 

restrict Pinnacle’s right of access to 84th Street. A few days 

later, Pinnacle moved for sanctions, asserting that Papillion’s 

motion was “legally frivolous.”

At the sanctions hearing, the court addressed its concern 

with its jurisdiction. The court appears to have been concerned that “under [§ 76-717], [the first judge was] supposed to take certain actions. And the [first judge] did not 

take those actions, [make] specific[] findings, and it says 

shall.” The court denied Pinnacle’s motion for sanctions and 

ordered the parties to “brief [the] jurisdictional issue[] and/or 

enter [into] a stipulation to [that] issue[].” After the hearing 
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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

on partial summary judgment, the court took the matters 

under advisement.

In March 2018, the court issued an order solely determining jurisdiction. The court reasoned that the 50-day requirement under § 76-717 was mandatory and jurisdictional as 

opposed to directory. Even though the appeal was timely filed 

and perfected, the court reasoned that Pinnacle failed to show 

good cause to justify filing its petition on appeal past the 

time it was due. The court elucidated that Pinnacle failed to 

explain why there was a delay in retaining new counsel and 

it failed to provide a timeline for the court to consider. The 

court noted that by the time Pinnacle took action, the 50-day 

limit had run, and Papillion had already filed a motion to dismiss. The court dismissed the condemnation appeal for lack 

of jurisdiction.

Pinnacle filed a timely appeal, which we moved to our 

docket.3

ASSIGNMENTS OF ERROR

Pinnacle assigns, consolidated and restated, that the district 

court erred in (1) sua sponte reversing its previous denial of 

Papillion’s motion to dismiss and in dismissing the condemnation on the grounds that timely filing a petition on appeal was 

jurisdictional and that good cause did not exist for Pinnacle’s 

late filing and (2) denying Pinnacle’s motion for sanctions.

STANDARD OF REVIEW

[1,2] Statutory interpretation presents a question of law.4

Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires an 

appellate court to reach its conclusions independent from a 

trial court.5

3 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

4 State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).

5 Sandoval v. Ricketts, ante p. 138, ___ N.W.2d ___ (2019).
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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

[3] The standard of review of a trial court’s determination 

of a request for sanctions is whether the trial court abused 

its discretion.6

ANALYSIS

Dismissal of Condemnation Appeal

On appeal, Pinnacle argues that the district court erred in 

sua sponte reversing its earlier denial of Papillion’s motion 

to dismiss, dismissing the condemnation appeal for lack of 

jurisdiction, determining that good cause was necessary to file 

a petition on appeal out of time, and finding that Pinnacle did 

not have good cause.

[4,5] Pinnacle contends that the law-of-the-case doctrine 

prohibited the second district court judge from reconsidering 

the motion to dismiss. We disagree. Under the law-of-the-case 

doctrine, a well-recognized waiver rule has emerged: A decision made at a previous stage of litigation, which could have 

been challenged in the ensuing appeal but was not, becomes 

the law of the case; the parties are deemed to have waived 

the right to challenge that decision.7

 When an appellate court 

remands a case to an inferior tribunal, the law-of-the-case doctrine prevents that court from taking action inconsistent with 

the judgment of the appellate court.8

Here, both decisions were made in the same case and at the 

same level of Nebraska’s court system. A second district court 

judge merely reconsidered an earlier, purely interlocutory order 

of his predecessor in the same proceeding and without any 

intervening opportunity for appellate review. The law-of-thecase waiver rule simply does not apply here.

[6,7] Pinnacle more broadly contends that it was error for 

the court to reconsider the denial of the motion to dismiss. 

Again, we disagree. A trial court, in its discretion, may permit 

6 LeRette v. Howard, 300 Neb. 128, 912 N.W.2d 706 (2018).

7 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

8 New Tek Mfg. v. Beehner, 275 Neb. 951, 751 N.W.2d 135 (2008).
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the renewal and resubmission of a motion which has previously been overruled.9

 “No court is required to persist in error, 

and, if [the court] concludes that a former ruling was wrong, 

[the court] may correct it at any time while the case is still in 

[the court’s] control.”10 Contrary to Pinnacle’s contention, the 

district court had the power to review its previous interlocutory 

orders if it believed there had been an error. On appeal to this 

court, we must consider whether the district court’s ultimate 

decision was correct. We now turn to its merits.

Pinnacle relies on the plain language of § 76-717 for several 

arguments. First, it argues that § 76-717 explicitly states that 

the district court’s jurisdiction is conferred when the notice 

of appeal is filed in the county court. Second, it contends that 

this language directly contradicts the district court’s dismissal 

for lack of jurisdiction. Third, it argues that amendments to 

§ 76-717 erased the court’s discretionary authority to review 

the late filing of a petition on appeal for good cause. Pinnacle 

also argues that because the 15-day delay did not cause any 

prejudice to Papillion, the court erred in dismissing the appeal 

and that regardless of jurisdiction, Pinnacle did show good 

cause for filing out of time.

[8,9] On the question of jurisdiction, the plain language of 

§ 76-717 is conclusive. Statutory language is to be given its 

plain and ordinary meaning, and an appellate court will not 

resort to interpretation to ascertain the meaning of statutory 

words which are plain, direct, and unambiguous.11 The second paragraph of § 76-717 begins, “The filing of the notice 

of appeal shall confer jurisdiction on the district court.” In a 

condemnation action, only the filing of the notice of appeal 

and, by extension, service of this notice is jurisdictional.12

9 See Bringewatt v. Mueller, 201 Neb. 736, 272 N.W.2d 37 (1978).

10 Tady v. Warta, 111 Neb. 521, 526, 196 N.W. 901, 903 (1924).

11 Leon V. v. Nebraska Dept. of Health & Human Servs., ante p. 81, 921 

N.W.2d 584 (2019).

12 See Wooden v. County of Douglas, 275 Neb. 971, 751 N.W.2d 151 (2008).
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PINNACLE ENTERS. v. CITY OF PAPILLION

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Because there is no dispute of fact that Pinnacle filed its notice 

of appeal within 30 days of the return of appraisers, the district 

court acquired jurisdiction.

Although the court acquired jurisdiction, Papillion argues 

that the dismissal should be upheld as a reasonable sanction 

under § 76-717. Although § 76-717 required Pinnacle to file a 

petition on appeal within 50 days after the filing of the notice 

of appeal, it goes on to state, “If no petition is filed, the court 

shall direct the first party to perfect an appeal to file a petition 

and impose such sanctions as are reasonable.” This, Papillion 

argues, justified dismissal as a sanction. We disagree.

[10] Clearly, the purpose of the quoted language is to keep 

cases moving and to ensure their orderly progression. By the 

time the district court first considered Papillion’s motion to 

dismiss, Pinnacle had already filed its petition on appeal. At 

that point, it was no longer a situation where “no petition is 

filed.” The provision requiring imposition of “sanctions” was 

conditioned on the absence of a filed petition. Thus, we hold 

that under § 76-717, only where it becomes necessary for a 

district court to order an appealing party to file a petition on 

appeal does it also become necessary for the court to impose 

such sanctions as are reasonable. In crafting a reasonable sanction, a court should consider the circumstances and any resulting prejudice to other parties.

Because the court had no cause to issue an order directing Pinnacle to file a petition on appeal, the court lacked 

statutory authority to impose sanctions. Under other circumstances, a failure to file the petition on appeal required by 

§ 76-717 in violation of a court order might justify dismissal 

as a sanction.

But even if sanctions had been permissible here, Pinnacle’s 

filing of the petition on appeal 15 days after the 50-day limit 

ran did not so prejudice Papillion as to warrant dismissal. 

Papillion received additional time to file an answer, and the 

court oversaw the case for nearly 41⁄2 years. Clearly, the initial 

untimeliness was a minor matter in the distant past.
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PINNACLE ENTERS. v. CITY OF PAPILLION

Cite as 302 Neb. 297

Moreover, when the court employed a good cause analysis 

as to the propriety of allowing the filing, rather than as a sanction for having failed to file the petition before being ordered 

to do so, the court deviated from the statutory procedure. In 

other words, the court employed a good cause analysis in order 

to determine retroactively whether the late filing should have 

been accepted. The district court cited to Pettit v. Nebraska 

Dept. of Corr. Servs.

13 for a definition of good cause. But in 

Pettit, the controlling statute specified an analysis for good 

cause. Section 76-717 does not.

The district court may have been misled by our previous 

case law under § 76-717, examining a late filing for good 

cause.14 Those cases were decided before the 1983 amendment.15 Between 1951, when the statute was enacted, and 1973, 

prior to an amendment, § 76-717 directed a party appealing 

a condemnation award to take his or her appeal in the same 

manner in which someone appeals from county court to district 

court.16 During that time, the statute controlling an appeal from 

county court to district court instructed that if the plaintiff 

failed to timely file his or her petition on appeal within 50 

days of the rendition of judgment, good cause must be shown 

or the plaintiff shall become nonsuited.17 Because the pre-1983 

version of § 76-717 specifically referred to the manner of 

13 Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb 513, 867 N.W.2d 553 

(2015).

14 See, Singleton v. South Platte Nat. Resources Dist., 215 Neb. 504, 339 

N.W.2d 751 (1983); Estate of Tetherow v. State, 193 Neb. 150, 226 

N.W.2d 116 (1975); Neumeyer v. Omaha Public Power Dist., 188 Neb. 

516, 198 N.W.2d 80 (1972); Jensen v. Omaha Public Power Dist., 159 

Neb. 277, 66 N.W.2d 591 (1954); City of Seward v. Gruntorad, 158 Neb. 

143, 62 N.W.2d 537 (1954).

15 See 1983 Neb. Laws, L.B. 270, § 1.

16 See, § 76-717 (Reissue 1971); 1973 Neb. Laws, L.B. 226, § 29 (eff. May 

3, 1973).

17 See Neb. Rev. Stat. § 27-1307 (Reissue 1964) (repealed 1972 Neb. Laws, 

L.B. 1032, § 287).
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appeal being the same as from county court to district court, it 

was proper before 1983 for a district court to employ a good 

cause analysis regarding a condemnation petition on appeal 

filed out of time.18 Because the current version of § 76-717 

does not specify a good cause standard (either explicitly or by 

incorporation of another statute), our earlier cases have been 

superseded by the legislative amendments to § 76-717.

In summary, the district court incorrectly concluded that it 

lacked jurisdiction. To the extent that Papillion argues the dismissal should be sustained as a sanction for Pinnacle’s late filing, we reject its argument. We therefore reverse the dismissal 

and remand the cause for further proceedings.

Sanctions

Pinnacle argues that the district court abused its discretion 

in denying Pinnacle’s motion for sanctions, which asserted that 

Papillion’s motion for summary judgment was legally frivolous. Pinnacle contends that Papillion was merely repackaging 

its motion to reconsider the motion in limine in the form of 

a motion for partial summary judgment. It follows, Pinnacle 

argues, that because the original judge granted the motion in 

limine and denied the motion to reconsider, the issues Papillion 

reasserted were legally frivolous.

[11] Pinnacle’s motion for sanctions was based upon Neb. 

Rev. Stat. § 25-824(4) (Reissue 2016), which permits a court 

to assess attorney fees and costs if “the court finds that an 

attorney or party brought or defended an action or any part of 

an action that was frivolous or that the action or any part of 

the action was interposed solely for delay or harassment.” The 

term “frivolous” connotes an improper motive or legal position 

so wholly without merit as to be ridiculous.19

Although the court did not explain why it denied Pinnacle’s 

motion for sanctions, we do not find that the court abused 

18 See Singleton v. South Platte Nat. Resources Dist., supra note 14.

19 White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).
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its discretion. The district court might well have concluded 

that Papillion’s motion did not meet the legal standard under 

§ 25-824(4). However, we are mindful that but for this appeal 

resulting from the court’s erroneous dismissal for lack of jurisdiction, the court’s order would have remained interlocutory. 

Upon remand, the court remains free to reassess the situation 

in the light of subsequent developments. We simply determine 

that based upon the state of the record at the time of the court’s 

denial of Pinnacle’s motion for sanctions, the court did not 

abuse its discretion in doing so.

CONCLUSION

We conclude that the district erred in dismissing the condemnation appeal for lack of jurisdiction. Therefore, we reverse the 

court’s dismissal and remand the cause for further proceedings. 

The district court did not abuse its discretion when it denied 

Pinnacle’s motion for sanctions. We affirm the district court’s 

denial of Pinnacle’s motion for sanctions.

 Affirmed in part, and in part reversed and

remanded for further proceedings.

Miller-Lerman, J., not participating.