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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

Douglas County School District No. 10, also known 

as the Elkhorn School District, appellant, 

v. Tribedo, LLC, a Nebraska limited 

liability company, appellee.

___ N.W.2d ___

Filed November 6, 2020. No. S-19-986.

1. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

2. Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a 

substantial right of the complaining party.

3. Eminent Domain: Verdicts: Appeal and Error. A condemnation action 

is reviewed as an action at law, in connection with which a verdict will 

not be disturbed unless it is clearly wrong.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s failure to 

give the requested instruction.

5. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial for an abuse of discretion.

6. Constitutional Law: Eminent Domain: Damages: Words and 

Phrases. The Nebraska Constitution provides that property shall not 

be taken or damaged for public use without just compensation, and the 

phrase “or damaged” provides that consequential damages may be an 

element of recovery in some situations.

7. Eminent Domain: Damages. The measure of damages for land taken 

for public use is the fair and reasonable market value of the land 

Nebraska Supreme Court Online Library

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

11/13/2020 08:06 AM CST
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

actually appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking.

8. ____: ____. Severance damages for land taken for public use are 

measured by all factors and inconveniences that would influence a 

purchaser.

9. Jury Instructions: Appeal and Error. If the jury instructions given, 

which are taken as a whole, correctly state the law, are not misleading, 

and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

10. Trial: Expert Witnesses. Expert witness testimony is not binding on the 

triers of fact.

11. Attorney Fees: Appeal and Error. When an attorney fee is authorized, 

the amount of the fee is addressed to the trial court’s discretion, and its 

ruling will not be disturbed on appeal absent an abuse of discretion.

12. Attorney Fees. An award of attorney fees involves consideration of 

such factors as the nature of the case, the services performed and results 

obtained, the length of time required for preparation and presentation 

of the case, the customary charges of the bar, and general equities of 

the case.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Duncan A. Young, Jeff C. Miller, and Keith I. Kosaki, of 

Young & White Law Office, for appellant.

Adam W. Barney, Trenten P. Bausch, and Sydney M. Huss, 

of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for 

appellee.

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

and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

To acquire property for a new high school site, Douglas 

County School District No. 10, also known as the Elkhorn 

School District (Elkhorn), condemned 43.36 acres of a 

73.99‐acre tract owned by Tribedo, LLC. The board of appraisers issued an award of $2,601,600 for the taking. Tribedo 

appealed the award to the district court for Douglas County 
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

and alleged that the award did not reflect the fair market value 

of the property taken and did not adequately compensate for 

damages to the remainder of Tribedo’s property.

At trial, the parties offered evidence of the value of the 

taken property and the severance damages to the remainder 

property. Elkhorn unsuccessfully objected to Tribedo’s presentation of evidence regarding the factors which went to 

the damages related to the change in fair market value of 

the remainder property. The jury returned a verdict finding 

compensation totaling $4,625,967. Elkhorn moved for a new 

trial, which was denied. The court granted Tribedo’s posttrial 

motions for an award of interest and attorney fees. Elkhorn 

appeals, and it assigns several errors related to the compensation awarded Tribedo and the award of attorney fees to 

Tribedo. We affirm.

II. STATEMENT OF FACTS

In April 2015, Tribedo executed a purchase agreement to 

acquire a 73.99‐acre tract located on the northeast corner 

of West Maple Road and 180th Street in Douglas County, 

Nebraska (Property). The Property was zoned for agricultural 

use and was used as farmland. The managing agent of the 

partnership that owns Tribedo testified that Tribedo purchased 

the Property for $60,000 per acre with the intent to develop 

it into a mixed‐use development. The sale closed on October 

20, 2016.

The intersection of West Maple Road and 180th Street, 

where the Property is located, is designated as a “[C]ommunity 

165” intersection on the city of Omaha’s future land use map. 

A Community 165 designation refers to a large mixed‐use 

development area of at least 165 acres, which includes big‐box 

stores, grocery stores, office buildings, and other commercial 

development. There is evidence that it is the most intensive 

land use development that is allowed within the city of Omaha. 

Another such example is Village Pointe, located at 168th Street 

and West Dodge Road.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

Tribedo planned to develop the Property with the use of a 

sanitary and improvement district. Pursuant to the purchase 

agreement for the Property, Tribedo began implementing land 

use planning and zoning processes to enable development of 

the land.

Subsequent to the execution of the purchase agreement, the 

180th Street viaduct bridge, which connects Blondo Street to 

north of the Property, received federal funding and an environmental impact review. At the time of trial, Tribedo was acquiring right‐of‐way for the bridge project for construction to start 

in 2020, which it claims adds significant value to the Property. 

Tribedo had attempted to rezone the Property, which approval 

Tribedo believes it could have obtained, but once Elkhorn’s 

condemnation occurred, the process was halted.

On February 22, 2017, 4 months after Tribedo closed on 

the land, Elkhorn condemned 43.36 acres of the Property for 

a new high school site. The board of appraisers appraised the 

43.36‐acre tract at $60,000 per acre, awarding Tribedo a total 

amount of $2,601,600 for the taking. Tribedo appealed to the 

district court, where it alleged that the award was inadequate 

and that the highest and best use of the Property was as a 

mixed‐use commercial development.

1. Total Compensation: Condemned Property 

Plus Diminished Fair Market 

Value of Remainder

As we explain in greater detail below, at trial, the experts 

addressed their opinions to both the 43.36 acres taken and 

the diminished fair market value of the 30.63‐acre remainder, 

as well as a dollar value of total compensation incorporating 

both aspects of the award. Tribedo’s first real estate appraiser, 

Kevin Kroeger, valued the total compensation at $5,890,000; 

Tribedo’s second appraiser, Nicholas Dizona, valued the total 

compensation at $7,022,000; and Elkhorn’s appraiser, Martin 

Giff, valued the total compensation at $2,601,600.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

2. Compensation for the 43.36 Acres 

of Condemned Property

Both parties presented evidence of the value of the condemned parcel. Kroeger valued the 73.99‐acre Property at 

$98,010 per acre and the taken property at $4,249,720. Dizona 

valued the Property at $124,769 per acre and the taken property at $5,410,000. Giff valued the Property at $60,000 per 

acre, the same price it had sold for previously, and calculated 

the value of the taken property at $2,601,600.

3. Compensation for Severance Damages 

to the Remaining 30.63 Acres

At trial, Tribedo sought compensation for both the 43.36 

acres taken and the reduction in fair market value to the 

remaining 30.63 acres. According to the evidence, after the 

condemnation, Tribedo’s 30.63 acres remained in a Community 

165 intersection and Tribedo’s revised preliminary plat to 

develop that parcel into a mixed‐use development had been 

approved at the time of trial.

Prior to trial, Elkhorn filed a motion in limine seeking to 

exclude testimony and evidence relating to Tribedo’s “itemized” damages, based on the contention that they were not 

related to the reduction in fair market value to the remaining 

30.63 acres. During trial, the district court overruled Elkhorn’s 

evidentiary objections and motions to strike concerning the 

loss of market value of the remaining 30.63 acres.

Tribedo’s first appraiser, Kroeger, testified that the highest and best use of the Property was “for a future mixed‐use 

development, which would incorporate a combination of commercial, retail, office, and multi‐family uses.” He calculated 

severance damages to the 30.63 acres of $1,640,280, based on 

the impact of the project on the remainder and included grading costs. Kroeger explained that the topography of the site 

varied by 80 feet from very low‐lying along the south side to 

significantly higher elevations on the north side. Potential wetlands had been identified on the low‐lying south side.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

Kroeger noted that there would be additional expenses to 

implement a new development plan, due to the condemnation and losses to the condemnee incurred because of lag 

time caused by starting over with a new development model. 

Kroeger explained that Tribedo would now have overall fixed 

costs for any future mixed‐use development spread over fewer 

acres. For example, a mixed‐use development on the remainder property would likely lose 1.5 acres of developable land 

required to address wetlands mitigation required by the city of 

Omaha, which would previously have been spread out across 

the larger parcel.

The second appraiser, Dizona, opined that the 30.63 acres 

suffered diminution in the fair market value of approximately 

$1,500,000. On direct examination, Dizona testified that the 

highest and best use for the remaining 30.63 acres had changed 

from mixed‐use “anchored development” to a development 

without an anchor tenant. According to Dizona, “the boulevard 

made it so that any potential anchored development would be 

impossible” because any improvements would have to face the 

boulevard, which could limit the useable space for Tribedo’s 

new proposed development. He opined that a parcel the size 

of the Property would have attracted a higher dollar purchaser, 

because it could support a larger market participant like a 

grocery store, with mixed‐use surrounding, and high‐density 

residential to the north. He stated that comparable sales of sites 

20 to 30 acres were more appropriate to determine the present 

value after the condemnation, because of the differences in 

functionality and usability as compared to a development of a 

larger area. Dizona incorporated an estimate of $937,000 associated with site elevation issues such as grading and dirt work 

in reaching his opinion.

Elkhorn’s expert, Giff, valued the 30.63 acres at $69,000 

per acre after the taking, and he concluded that the remainder property suffered no diminution in fair market value. He 

opined that the highest and best use of the condemned portion 

of the Property would have been as low‐density residential 
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

development and that the highest and best use of the remainder of the Property would be for commercial development. 

Giff testified that in reaching his valuation, he performed a 

comparable sales analysis on the remaining 30.63 acres by 

comparing the remainder with sales of three other properties 

situated nearby, all of which had at least a quarter mile of 

frontage on West Maple Road, including a sale on the southwest corner of the West Maple Road and 180th Street intersection. Giff attributed the higher price per acre he assigned to the 

remainder property to its proximity to the West Maple Road 

frontage road.

Other evidence at trial showed that Tribedo’s preliminary 

plat to develop the remaining 30.63 acres included no imported 

dirt. However, the managing agent of Tribedo testified that 

importing dirt is a “cost benefit” for a developer that he needed 

to think through to evaluate the rewards compared to the risks 

of developing the site.

4. Jury Instructions

At the jury instruction conference, Elkhorn proffered the following jury instruction regarding Tribedo’s severance damages:

To determine the fair market value of the property 

taken in this case and to determine if there is a reduction in the fair market value of the property that was not 

acquired, you may consider everything which affects the 

market value of the subject property.

You have heard some testimony about [sic] from the 

witnesses regarding the “costs to cure,” and like matters. You may only consider such “costs to cure” if they 

have an impact on the diminution of the fair market 

value of the remaining [30.63] acres as a result of the 

condemnation.

The district court refused this jury instruction, and instead 

instructed the jury, inter alia, that “Tribedo is entitled to recover 

the fair market value of the 43.36 acres taken by Elkhorn, and 

the diminished value, if any, of the remaining 30.63 acres 
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

owned by Tribedo, figuring the value as of February 22, 2017.” 

Instruction No. 4 defined “fair market value” as follows:

The “fair market value” of a piece of property is the 

price that someone ready to sell, but not required to do so, 

would be willing to accept in payment for the property, 

and that someone ready to buy, but not required to do so, 

would be willing to pay for the property.

In determining fair market value, you may consider 

the uses to which the property has been put and the 

uses to which it might reasonably be put in the immediate future.

5. Jury Verdict and Posttrial 

Pproceedings

The jury found that Elkhorn owed compensation to Tribedo 

totaling $4,625,967, broken down as follows: $3,295,967 

“[f]or the 43.36 acres owned by Tribedo taken by Elkhorn” 

and $1,330,000 “[f]or the decrease in value, if any, of Tribedo’s 

remaining 30.63 acres.”

After the conclusion of the jury trial and after the jury 

returned its verdict, the district court issued an order setting 

forth its rationale for denying Elkhorn’s motions and objections concerning the testimony and evidence of the severance 

damages. The May 24, 2019, order stated, inter alia, that the 

$937,000 to import dirt was not an impermissible “consequential cost” to the taking, but was “part of the diminished value 

of the remaining property,” because imported dirt was needed 

to level the remaining property, and that without imported fill, 

the property would be worth less than if it had been level.

Elkhorn moved for judgment notwithstanding the verdict 

and for a new trial, and Tribedo moved for attorney fees, 

expert witness fees, and costs. Hearing was held on June 14, 

2019. Elkhorn argued that the verdict was not supported by the 

evidence with respect to severance damages, because there was 

no evidence to support an amount of $1,330,000 for the diminished fair market value of the remainder property. The district 

court ultimately denied Elkhorn’s motions.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

With respect to Tribedo’s request for attorney fees, expert 

witness fees, and interest, Tribedo submitted affidavits of three 

attorneys who had reviewed Tribedo’s billing records and 

opined that the amount of fees requested was reasonable. 

Elkhorn objected to the affidavits, because they did not include 

actual billings and Elkhorn could not verify that the work was 

applicable and that the fees were not duplicative. The district 

court overruled Elkhorn’s objections to the attorney fees affidavits. The district court rejected Elkhorn’s opposition to the 

attorney fees request and stated that under the circumstances, it 

could determine the reasonableness of an attorney fees request 

even in the absence of a detailed billing record.

On September 16, 2019, the district court entered judgment 

for Tribedo for $4,625,967 on the jury’s verdict; $143,681.89 

in prejudgment interest; postjudgment interest at $295.58 per 

day or as permitted by law; and $590,924.89 in attorney fees. 

In a written order, the district court found that the requested 

attorney fees were reasonable, given the complexity and duration of the litigation; the number of issues litigated; the result 

of a judgment exceeding the award by the board of appraisers 

by over 75 percent; and the size of the judgment, which it 

believed to be one of the largest jury awards in a condemnation 

matter on record.

Elkhorn appeals.

III. ASSIGNMENTS OF ERROR

Elkhorn first assigns various errors related to the loss 

in value of Tribedo’s remainder property. Summarized and 

restated, these claims are that the district court erred (1) when 

it denied Elkhorn’s motions to strike appraisal evidence offered 

by Tribedo; (2) when it instructed the jury regarding severance 

damages; (3) when it accepted the jury’s award of damages, 

which Elkhorn claims was excessive; and (4) when it denied 

Elkhorn’s motion for a new trial.

Elkhorn further claims that the district court erred when it 

awarded attorney fees, expert fees, and interest to Tribedo.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

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IV. STANDARDS OF REVIEW

[1] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will not 

be disturbed on appeal unless they constitute an abuse of that 

discretion. Walker v. BNSF Railway Co., 306 Neb. 559, 946 

N.W.2d 656 (2020).

[2] In a civil case, the admission or exclusion of evidence is 

not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party. Id.

[3] A condemnation action is reviewed as an action at law, in 

connection with which a verdict will not be disturbed unless it 

is clearly wrong. Curry v. Lewis & Clark NRD, 267 Neb. 857, 

678 N.W.2d 95 (2004).

[4] To establish reversible error from a court’s failure to 

give a requested jury instruction, an appellant has the burden 

to show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

failure to give the requested instruction. Hike v. State, 288 Neb. 

60, 846 N.W.2d 205 (2014).

[5] An appellate court reviews a denial of a motion for new 

trial for an abuse of discretion. Anderson v. Babbe, 304 Neb. 

186, 933 N.W.2d 813 (2019).

V. ANALYSIS

1. Damage to Remainder Property 

and Law on Severance Damages

Elkhorn claims generally that the district court improperly 

allowed Tribedo’s expert appraisers to itemize damages to the 

remainder property. Specifically, it claims that reversible error 

occurred when the district court admitted evidence of Tribedo’s 

increased costs, when it instructed the jury regarding severance 

damages, when it accepted the jury’s award of damages, and 

when it denied Elkhorn’s motion for a new trial. We consider 

each claim in turn below.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

Cite as 307 Neb. 716

[6] Several principles of law govern damages to the remainder property in this case. The Nebraska Constitution provides 

that property shall not be taken or damaged for public use 

without just compensation, and the phrase “or damaged” provides that consequential damages may be an element of recovery in some situations. See Patrick v. City of Bellevue, 164 

Neb. 196, 82 N.W.2d 274 (1957). See, also, NJI2d Civ. 13.01, 

comment & authorities, § X(G) (discussing just compensation 

as it relates to consequential damages).

[7,8] The measure of damages for land taken for public 

use is the fair and reasonable market value of the land actually appropriated and the difference in the fair and reasonable 

market value of the remainder of the land before and after the 

taking. Armbruster v. Stanton‐Pilger Drainage Dist., 169 Neb. 

594, 100 N.W.2d 781 (1960). Severance damages for land 

taken for public use are measured by all factors and inconveniences that would influence a purchaser. See, Sorenson 

v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180, 376 

N.W.2d 539 (1985) (superseded by statute on other grounds); 

State v. Dillon, 175 Neb. 444, 122 N.W.2d 223 (1963). A jury 

may take into account “‘every (nonspeculative) element of 

annoyance and disadvantage resulting from the improvement 

which would influence an intending purchaser’s estimate of the 

market value of such property.’” Armbruster v. Stanton‐Pilger 

Drainage Dist., 169 Neb. at 610, 100 N.W.2d at 792. For 

example, “‘[t]he burden of additional fencing, and like matters, are to be included, not by being added together item by 

item, but to the extent that, taken as a whole, they detract from 

the market value of the property.’” Id. at 609, 100 N.W.2d 

at 791. Other such elements which could influence market 

value include

expenses for additional fencing, repairs, removal, and 

rebuilding thereof; the expenses of removal and repair of 

plaintiffs’ private roads and bridge, together with inconvenience and disadvantage caused thereby; the expenses 

of repair and the threatened peril and damages to one 
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

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of plaintiffs’ two valuable irrigation wells, irrigation and 

sewer systems, and to their buildings; and the expenses 

incurred attempting, in good faith, to stop the erosion and 

damages when defendant refused to do so, and like matters . . . .

Id. at 610, 100 N.W.2d at 792. Ultimately, evidence of itemized 

damages may be considered only if such damages diminish the 

market value of the property. See Armbruster v. Stanton‐Pilger 

Drainage Dist., supra.

2. Elkhorn’s Claims

(a) Motion to Strike and Objections to 

Tribedo’s Appraisers’ Testimony

Elkhorn argues that the district court abused its discretion 

when it allowed Tribedo’s expert appraisers to testify about 

damages to the remainder over Elkhorn’s objections. As stated 

previously, a trial court’s decision to admit or exclude evidence 

is reviewed for abuse of discretion. Walker v. BNSF Railway 

Co., 306 Neb. 559, 946 N.W.2d 656 (2020). In a civil case, 

the admission or exclusion of evidence is not reversible error 

unless it unfairly prejudiced a substantial right of the complaining party. Id.

Elkhorn specifically objects to evidence by Kroeger, who 

testified to a number of factors that diminished the value of the 

remainder for the property owner. Kroeger first testified that 

he believed the value of the property taken was $4,249,720. 

Kroeger later opined that the total amount of compensation due 

for the taking, composed of property taken and diminution of 

fair market value of the remainder, was $5,890,000.

Regarding the remainder, Kroeger presented evidence of the 

costs of several restoration items, such as grading and additional wetland rehabilitation that he stated were necessary as a 

result of dividing the Property. Kroeger testified that compensation was payable to the property owner based on a change in 

the fair market value of the remainder.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

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Elkhorn also argues that Dizona’s testimony should not have 

been admitted, because Dizona utilized a summation approach 

by tacking on itemized damages to determine the reduction 

in fair market value. To illustrate, Elkhorn notes that Dizona 

referred to elements influencing value, including dirt fill and 

leveling costs, a decrease in usable space, and changes in highest and best use. The question is whether Dizona’s “itemized” 

costs were improperly considered as add‐ons to the market 

value or whether they were properly considered as factors 

influencing his opinion of the fair market value of the remainder property. We find the factors to which Tribedo’s experts 

referred were properly considered in reaching their opinions 

regarding the fair market value of the remainder.

Consistent with the district court ruling, Kroeger and Dizona 

detailed numerous elements that influenced their valuations, 

and both appraisers testified that their references to damages related to a reduction in fair market value. Items such 

as grading and importing dirt may properly be considered to 

the extent they affected the fair market value of the remaining property. To the extent that Elkhorn notes conflicting 

testimony by Tribedo’s experts, or doubts the propriety of elements considered in the valuation, such conflicting testimony 

is a question of fact. See Chadron Energy Corp. v. First Nat. 

Bank, 236 Neb. 173, 459 N.W.2d 718 (1990). The district court 

did not abuse its discretion when it admitted expert testimony 

regarding the diminution of market value to Tribedo’s remaining property.

(b) Jury Instruction

Elkhorn next contends that the district court erred when 

it refused to give its proposed jury instruction relating to the 

remainder which stated that the “‘costs to cure’” could be considered only if they have an impact on the fair market value of 

the remaining property.

[9] As set forth above, a court’s failure to give a requested 

jury instruction is not reversible error unless an appellant 

shows that (1) the tendered instruction is a correct statement 
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of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

failure to give the requested instruction. Hike v. State, 288 

Neb. 60, 846 N.W.2d 205 (2014). However, if the instructions 

given, which are taken as a whole, correctly state the law, are 

not misleading, and adequately cover the issues submissible to 

a jury, there is no prejudicial error concerning the instructions 

and necessitating a reversal. See id.

Although the requested instructions are a correct statement 

of the law, Elkhorn was not prejudiced by the district court’s 

refusal to give them. The instruction actually given on this question stated that “Tribedo is entitled to recover the fair market 

value of the 43.36 acres taken by Elkhorn, and the diminished 

value, if any, of the remaining 30.63 acres owned by Tribedo, 

figuring the value as of February 22, 2017.” Instruction No. 4 

defined “fair market value” as follows:

The “fair market value” of a piece of property is the 

price that someone ready to sell, but not required to do so, 

would be willing to accept in payment for the property, 

and that someone ready to buy, but not required to do so, 

would be willing to pay for the property.

In determining fair market value, you may consider 

the uses to which the property has been put and the 

uses to which it might reasonably be put in the immediate future.

Instruction No. 5 stated, “The Nebraska and United States 

Constitutions provide that the property of no person shall be 

taken for public use without just compensation therefore.” 

“‘Just Compensation,’” as defined in instruction No. 5, is “the 

fair market value of the property at the time it was taken and 

the diminished value, if any, of the remainder as a result of the 

taking which occurred on February 22, 2017.”

The substance of the proposed instruction was consistent 

with the instructions given by the district court. Because the 

jury was adequately instructed on the measure of damages 

to the remaining property, this assignment of error is without merit.
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(c) Amount of Damages

Elkhorn next argues that the district court erred when it 

accepted the jury verdict with respect to damages to the 

remaining property. The crux of Elkhorn’s argument is that the 

jury awarded severance damages which, Elkhorn argues, were 

not specifically supported by the opinion of any expert.

The amount of damages sustained in a condemnation action 

is peculiarly a question of a local nature and ordinarily is to be 

determined by a jury. Patterson v. City of Lincoln, 250 Neb. 

382, 550 N.W.2d 650 (1996). Where the evidence is conflicting, an appellate court will not ordinarily interfere with the 

verdict of the jury unless it is clearly wrong. Id.

[10] Here, the jury’s total award of $4,625,967, as compensation for both the taken property and diminution to the 

fair market value of the remainder, was supported by sufficient evidence. Kroeger valued the total compensation at 

$5,890,000; Dizona valued the total damages at $7,022,000; 

and Giff valued the total damages at $2,601,600. Expert 

witness testimony is not binding on the triers of fact. Id. In 

condemnation cases, we generally do not set aside a jury 

award which has fallen within the range of conflicting sets 

of testimony. See In re Petition of Omaha Pub. Power Dist., 

268 Neb. 43, 680 N.W.2d 128 (2004). The jury award of 

$4,625,967 in total compensation was supported by sufficient 

competent evidence. We will not speculate as to how the jury 

reached the amount of its award. This assignment of error is 

without merit.

(d) Motion for New Trial

Elkhorn’s claim arising out of the denial of its motion for 

new trial is generally grounded in the question of whether 

Kroeger and Dizona testified to an improper measure of damages, particularly with respect to the remainder property. 

Because we have found the district court did not err when it 

admitted such testimony, it likewise did not abuse its discretion 

when it denied the motion for a new trial.
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

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3. Attorney Fees

There is no dispute in this case that Tribedo had a right to an 

award of attorney fees. See Neb. Rev. Stat. § 76‐720 (Reissue 

2018). Elkhorn claims that the amount of the fees was unreasonable. We recognize that the attorney fees are substantial, but 

we find no abuse of discretion.

[11,12] When an attorney fee is authorized, the amount of 

the fee is addressed to the trial court’s discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion. ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 

Neb. 818, 896 N.W.2d 156 (2017). An award of attorney fees 

involves consideration of such factors as the nature of the 

case, the services performed and results obtained, the length 

of time required for preparation and presentation of the case, 

the customary charges of the bar, and general equities of the 

case. Id.

In support of its fee application, Tribedo offered affidavits of three members of the Nebraska bar, who testified that 

they had reviewed the fees charged by Tribedo’s attorneys, 

received a detailed summary of the work provided by counsel, and stated that they found the requested fees reasonable. 

Following submission of evidence and briefing, the district 

court found:

The amount sought by Tribedo is extremely reasonable, 

particularly given the fact that the judgment exceeded the 

award by more than 75%, the judgment is believed to be 

one of the largest jury awards in a condemnation matter 

to be found in a reported court decision in this State, the 

litigation was fairly complex and, thus far, has persisted 

over a nearly 2 1⁄2 year period, complex appraisals had to 

be prepared by highly trained and experienced appraisers, the experience and professional training of Tribedo’s 

attorneys, the customary charges of the bar and the general equities of the case.

After reviewing the district court’s detailed explanation for 

its award of attorney fees, we agree that the above factors 
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DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC

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support the attorney fees awarded. The district court did not 

abuse its discretion when it awarded Tribedo $590,924.89 in 

attorney fees.

VI. CONCLUSION

For the reasons set forth above, we conclude that the district 

court did not err in its trial rulings nor in accepting the jury verdict for total compensation due Tribedo of $4,625,967. Further, 

the district court did not abuse its discretion when it awarded 

Tribedo $590,924.89 in attorney fees. All assignments of error 

have been considered and are without merit. Accordingly, we 

affirm the judgment of the district court.

Affirmed.

Papik, J., not participating.