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02/16/2024 08:09 AM CST
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
Sanitary and Improvement District No. 596 of
Douglas County, Nebraska, appellee, v.
THG Development, L.L.C., appellant.
Sanitary and Improvement District No. 596 of
Douglas County, Nebraska, et al., appellants
and cross-appellees, v. THG Development,
L.L.C., appellee and cross-appellant.
___ N.W.2d ___
Filed February 16, 2024. Nos. S-22-688, S-23-134.
1. 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.
2. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
3. Eminent Domain: Words and Phrases. Eminent domain is the inherent
power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.
4. Eminent Domain: Damages. In a condemnation action, there are two
elements of damage: (1) market value of the land taken or appropriated and (2) diminution in value of the land remaining, less special
benefits.
5. Special Assessments: Improvements: Words and Phrases. Special
assessments are charges imposed by law on land to defray the expense
of a local municipal improvement on the theory that the property has
received special benefits from the improvements in excess of the benefits accruing to property or people in general.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
6. Special Assessments: Improvements. The foundation for a local
assessment lies in the special benefits conferred by the improvement
upon the property assessed, and an assessment beyond the benefit so
conferred is a taking of property for public use without compensation
and, therefore, illegal.
7. Constitutional Law: Statutes. The constitutionality of statutes and
statutory interpretation present questions of law.
8. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
9. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. A party challenging the constitutionality of a statute must
strictly comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2023).
10. Constitutional Law: Rules of the Supreme Court: Statutes: Notice:
Appeal and Error. Neb. Ct. R. App. P. § 2-109(E) (rev. 2023) requires,
in part, that a party presenting a case involving the federal or state
constitutionality of a statute must file and serve notice thereof with
the Supreme Court Clerk by separate written notice or in a petition to
bypass at the time of filing such party’s brief.
11. Statutes: Legislature: Intent. In order for a court to inquire into a
statute’s legislative history, that statute in question must be open to
construction, and a statute is open to construction when its terms require
interpretation or may reasonably be considered ambiguous.
12. Statutes. A statute is ambiguous if it is susceptible of more than one reasonable interpretation, meaning that a court could reasonably interpret
the statute either way.
13. Statutes: Appeal and Error. When statutory interpretation is one of
first impression, the 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.
14. Statutes. If the language of a statute is clear, the words of such statute
are the end of any judicial inquiry regarding its meaning.
15. ____. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
16. Statutes: Appeal and Error. To give effect to all parts of a statute, an
appellate court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible, and will avoid rejecting as superfluous or meaningless any word, clause, or sentence.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
17. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
18. Statutes. Statutes pertaining to the same subject matter should be construed together; such statutes, being in pari materia, must be construed
as if they were one law, and effect must be given to every provision.
19. Statutes: Legislature: Intent. In construing a statute, the legislative
intention is to be determined from a general consideration of the whole
act with reference to the subject matter to which it applies and the
particular topic under which the language in question is found, and the
intent as deduced from the whole will prevail over that of a particular
part considered separately.
20. Statutes: Intent. A court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to be served,
and then place on the statute a reasonable construction which best
achieves the purpose of the statute, rather than a construction defeating
the statutory purpose.
21. Assessments: Property: Improvements: Words and Phrases. The
phrase “such exempt property” in Neb. Rev. Stat. § 31-752 (Reissue
2016) refers only to “property by law not assessable”; it does not refer
to “property not included within the district defined in the preliminary resolution.”
22. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
23. Trial: 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.
24. Jury Instructions: Appeal and Error. Jury instructions are subject
to the harmless error rule, and an erroneous jury instruction requires
reversal only if the error adversely affects the substantial rights of the
complaining party.
25. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
de novo whether the trial court applied the correct legal standards for
admitting an expert’s testimony, but a trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant will be
reversed only when there has been an abuse of discretion.
26. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
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315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
27. Trial: Expert Witnesses. Triers of fact are not required to take opinions
of experts as binding upon them, and determining the weight to be given
expert testimony is uniquely the province of the fact finder.
28. Motions for New Trial: Appeal and Error. A motion for new trial is
addressed to the discretion of the trial court, whose discretion will be
upheld in the absence of an abuse of that discretion.
29. Attorney Fees. Attorney fees and expenses may be recovered in a civil
action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of
attorney fees.
30. 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.
31. Actions: Attorney Fees: Words and Phrases. A frivolous action is
one in which a litigant asserts a legal position wholly without merit;
that is, the position is without rational argument based on law and evidence to support the litigant’s position. The term “frivolous” connotes
an improper motive or legal position so wholly without merit as to
be ridiculous.
32. Actions. Any doubt about whether a legal position is frivolous or taken
in bad faith should be resolved in favor of the one whose legal position
is in question.
Appeals from the District Court for Douglas County: Tressa
M. Alioth, Judge. Affirmed.
Jason M. Bruno and Thomas G. Schumacher, of Sherrets,
Bruno & Vogt, L.L.C., for THG Development, L.L.C.
Greg C. Scaglione and Michele E. Young, of Koley Jessen,
P.C., L.L.O., for Sanitary and Improvement District No. 596 of
Douglas County.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Two consolidated appeals involve a sanitary and improvement district (SID) and an owner of real estate adjoining the
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315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
SID but outside its boundaries. One appeal, from an action to
levy a special assessment under the SID statutes, 1 presents a
novel question: whether the clause of § 31-752 authorizing a
levy where “exempt property” has been “specially benefited”
applies only to “property by law not assessable” or also to
“property not included within the district.” Because we conclude that “exempt property” is synonymous with “property
by law not assessable” and that a cross-appeal lacks merit,
we affirm the judgment in that appeal. The other appeal,
from a condemnation of part of the adjoining property, pre
sents numerous issues lacking merit. Thus, we also affirm
that judgment.
II. BACKGROUND
The instant lawsuits were filed by SID No. 596 of Douglas
County, Nebraska (SID 596), against THG Development,
L.L.C. (THG). We refer to the first action chronologically,
docketed at case No. S-22-688, as the “condemnation case”
and the second action, docketed at case No. S-23-134, as the
“special benefits case.” Although the parties are not precisely
the same in both cases, we refer to SID 596 and related parties
joined in the special benefits case collectively as “SID 596.”
The records in both cases are voluminous. In this section,
we summarize the facts and procedural history to the extent
necessary to address the assignments of error raised on appeal.
1. General Background
SID 596 was formed by a company pursuing a new development near the outskirts of Omaha. The city of Omaha’s
approval of the development required SID 596 to construct
certain infrastructure, including the addition of a traffic signal,
expansion of a water main, paving of a street, and construction
of turning lanes off a highway. For convenience, we will refer
to the required infrastructure as “the improvements.”
1
See Neb. Rev. Stat. §§ 31-727 to 31-794 (Reissue 2016 & Cum. Supp.
2022).
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315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
THG owned land adjacent to the development but outside
SID 596’s boundaries. For illustrative purposes only, we provide an excerpt from a plat map received in evidence, showing
the affected areas:
The far left side of the map depicts 204th Street, which runs
north and south. The two areas near the top, labeled “Proposed
West Center Village,” depict the development and were included
within SID 596’s boundaries. SID 596’s southern boundary
did not extend past what is labeled “Proposed Vinton Street.”
THG’s property was located immediately south of “Proposed
Vinton Street.”
2. Condemnation Case
(a) SID 596’s Petition and Board
of Appraisers’ Award
In February 2019, SID 596 filed a petition in county court
to condemn ⅓ of an acre of THG’s property (the plat map’s
shaded area) and a temporary construction easement over 2
more acres. In March, the board of appraisers awarded THG
$56,390 for the taking. The award stated that the market
value of the “Fee Simple Taking” was $39,560 and that the
“Short-Term Damages” arising from the temporary construction
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
easement amounted to $16,830, subject to a reduction of
“$ - 0 -” for “Special Benefits.”
(b) THG’s Appeal to District Court
THG timely appealed the award to the district court. As relevant here, THG asserted that the award provided inadequate
compensation. SID 596 did not appeal from the award.
The condemnation case proceeded to a jury trial, where the
issues were the value of THG’s property that was taken or
appropriated and any diminution in value of the land remaining. Three aspects of trial are particularly relevant.
First, over THG’s objection, the court received evidence
and instructed the jury regarding special benefits purportedly
conferred on THG’s remaining property. In pertinent part, the
evidence included testimony from Drew Snyder, a board member of SID 596, who opined that THG’s property increased in
value by $5 million as a result of the condemnation.
Second, SID 596 adduced testimony from Cheri Rockwell,
a former assistant director of urban planning for the city
of Omaha. Rockwell generally opined that THG’s remaining property would be “non-conforming” if THG completed
repairs to cure alleged damages caused by the condemnation.
The court overruled THG’s motion to strike her testimony.
Finally, during closing argument, SID 596’s counsel suggested that THG was “[c]oncealing” evidence and vaguely
referred to a series of emails. THG immediately objected, and
the court sustained the objection.
(c) Jury Verdict and Motion
for New Trial
Following trial, the jury awarded THG a total of $56,390
for the condemnation. The verdict found the value of the
taking of ⅓ of an acre of land to be $39,560 and the value
of the taking of the temporary construction easement to be
$16,830. By a special verdict, it found that THG did not meet
its burden to show a decrease in the fair market value of the
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
remaining property caused by the taking, and therefore, the
jury did not reach the issue of special benefits—the amount
of which, under the court’s instructions, would have reduced a
severance damages award.
THG filed a timely motion for new trial on four grounds:
(1) irregularity in the proceedings, (2) orders and abuses
of discretion that prevented a fair trial, (3) misconduct of
SID 596, and (4) errors of law “excepted to by THG.”
Specifically, THG challenged the admission of SID 596’s
arguments and evidence regarding special benefits and costs
to restore access to THG’s property, the jury instructions
regarding special benefits, the allowance of SID 596’s expert
testimony, and the “inflammatory statement” made by SID
596 in closing argument.
Following a hearing, the court denied the motion for new
trial in its entirety. THG timely filed a notice of appeal to the
Nebraska Court of Appeals.
3. Special Benefits Case
(a) SID 596’s Complaint
and THG’s Response
In July 2020, while the condemnation case was pending
in the district court, SID 596 filed a separate action there
against THG. SID 596’s complaint sought a determination that
THG’s remaining property received enumerated “special benefits” by virtue of the improvements, such that SID 596 could
levy a special assessment on THG’s property. The complaint
expressly stated that THG’s property “is outside [SID 596’s]
corporate boundary.” It cited § 31-752 as the legal authority
for the assessment.
THG filed an answer, counterclaims, and a third-party complaint. In its answer, THG affirmatively alleged that to the
extent § 31-752 “permits or can be interpreted or applied to
permit” an SID to specially assess property outside its boundaries, it is unconstitutional. The answer further alleged that the
complaint was barred on other grounds.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
One of THG’s counterclaims is particularly relevant. In its
“Eleventh Cause of Action,” THG sought declaratory relief
regarding § 31-752—the purported basis for SID 596’s claim—
asserting that if interpreted to allow the assessment outside
of SID 596’s boundaries, the statute would be unconstitutional. The answer named the Attorney General as a third-party
defendant, but he was later dismissed by stipulation.
(b) Cross-Motions for
Summary Judgment
After the jury reached its verdict in the condemnation
case, THG filed a motion for summary judgment on SID
596’s complaint and “Count 11 of THG’s Counterclaim”—its
request for declaratory relief. SID 596 moved for summary
judgment on causes of action asserted by THG.
(c) District Court’s Rulings
The district court entered an order partially granting and
partially denying THG’s motion for summary judgment and
reserving ruling on SID 596’s motion for summary judgment.
In its order, the court granted THG’s motion for summary
judgment on SID 596’s complaint. It reasoned that the language in § 31-752 was ambiguous and then concluded, based
on its review of the legislative history, that “when the legislature added the amendment allowing assessment of specially
benefitted ‘exempt’ property, it meant ‘tax exempt property’
within the district.” The court also relied on cases involving
other types of improvement districts, 2 in which this court had
held that assessment outside an improvement district’s boundaries was not available.
In light of its interpretation of § 31-752, the court declined
to find the statute unconstitutional. The order did not address
THG’s other arguments that SID 596’s action was barred.
2
See, Besack v. City of Beatrice, 154 Neb. 142,
47 N.W.2d 356 (1951)
(sewer district); Drainage District No. 1 v. Village of Hershey, 139 Neb.
205,
296 N.W. 879 (1941) (drainage district); McCaffrey v. City of Omaha,
91 Neb. 184,
135 N.W. 552 (1912) (street improvement district).
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315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
In a subsequent judgment, styled as an order, the court
overruled THG’s motion for attorney fees and disposed of all
remaining issues as moot.
SID 596 filed a timely appeal, challenging the court’s interpretation of § 31-752. THG filed a cross-appeal, challenging
the denial of attorney fees.
4. Notice of Constitutional Question
One day after THG filed its appellate brief in the special
benefits case, it filed a notice of constitutional question in that
case. 3 SID 596 did not file a response. The record indicates
that THG served the Attorney General’s office with its appellate brief, but there was no response.
5. Case Movement and Consolidation
After THG filed its notice of constitutional question, we
moved the appeals to our docket pursuant to statutory author
ity. 4 On our own motion, we consolidated the appeals for purposes of oral argument and disposition.
III. ASSIGNMENTS OF ERROR
We first set forth SID 596’s assignments in the special benefits case. Then we turn to THG’s assignments in the condemnation case and in its cross-appeal in the special benefits case.
In the special benefits case, SID 596 assigns, rephrased,
that the district court erred in granting THG’s motion for
summary judgment and dismissing its complaint because, SID
596 asserts, (1) the court erred in determining that § 31-752
was ambiguous and concluding that it “does not authorize
SID 596 to seek to have a district court order an owner of
property outside of SID 596’s boundaries to pay for special
benefits conferred by the public improvements installed and
paid for by SID 596,” and (2) even if § 31-752 is ambiguous,
the court erred in reaching that conclusion.
3
See Neb. Ct. R. App. P. § 2-109(E) (rev. 2023).
4
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SID NO. 596 V. THG DEVELOPMENT
Cite as 315 Neb. 926
In the condemnation case, THG assigns, rephrased and
reordered, that the district court erred in (1) “allowing the
mention of, and instructing the jury, regarding ‘special benefits’” because, THG asserts, (a) the court lacked jurisdiction
over the issue due to SID 596’s failure to appeal from the
board of appraisers’ determination that THG received $0 in
“‘special benefits’” and (b) there was no basis for a claim of
“‘special benefits’” as defined under Nebraska law; (2) permitting Snyder to offer valuation testimony; (3) permitting,
and refusing to strike, Rockwell’s testimony; (4) failing to
grant a new trial because, THG asserts, SID 596 improperly
used excluded evidence during closing to represent to the jury
that THG was “‘concealing’” evidence; and (5) denying its
motion for new trial.
Finally, on cross-appeal in the special benefits case, THG
assigns that the district court erred in denying its motion for
attorney fees.
IV. STANDARD OF REVIEW
[1,2] We set forth two overarching standards of review. 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. 5 An appellate court affirms a lower court’s
grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from
the facts and that the moving party is entitled to judgment
as a matter of law. 6 Additional standards will be set forth at
appropriate points in the analysis.
V. ANALYSIS
We begin with a brief summary of the detailed analysis
that follows. In the next sections, we will first review basic
5
Douglas Cty. Sch. Dist. No. 10 v. Tribedo, LLC, 307 Neb. 716,
950 N.W.2d
599 (2020).
6
Rose v. American Family Ins. Co., ante p. 302,
995 N.W.2d 650 (2023).
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SID NO. 596 V. THG DEVELOPMENT
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principles of eminent domain and special assessments. We
then turn to the parties’ assignments of error. We will consider
SID 596’s claims first, followed by the arguments asserted
by THG.
1. Law on Eminent Domain and
Special Assessments
[3,4] Eminent domain is the inherent power of a governmental entity to take privately owned property, especially land, and
convert it to public use, subject to reasonable compensation for
the taking. 7 In a condemnation action, there are two elements
of damage: (1) market value of the land taken or appropriated
and (2) diminution in value of the land remaining, less special benefits. 8
[5,6] Special assessments are charges imposed by law on
land to defray the expense of a local municipal improvement on
the theory that the property has received special benefits from
the improvements in excess of the benefits accruing to property
or people in general. 9 The foundation for a local assessment
lies in the special benefits conferred by the improvement upon
the property assessed, and an assessment beyond the benefit
so conferred is a taking of property for public use without
compensation and, therefore, illegal. 10 With these principles in
mind, we turn to the parties’ claims.
2. SID 596’s Claims
Both of SID 596’s assignments of error challenge the
district court’s interpretation of the special assessment statute. SID 596 maintains that § 31-752 authorizes an SID
to levy special assessments on property located outside its
7
Hike v. State, 288 Neb. 60,
846 N.W.2d 205 (2014).
8
Id.
9
Johnson v. City of Kearney,
277 Neb. 481,
763 N.W.2d 103 (2009).
10
NEBCO, Inc. v. Board of Equal. of City of Lincoln,
250 Neb. 81,
547
N.W.2d 499 (1996).
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boundaries. THG generally responds that SID 596’s interpretation would render § 31-752 unconstitutional, and it presents
several other arguments that SID 596 was barred from asserting any claim of special benefits.
(a) Standard of Review
[7,8] The constitutionality of statutes and statutory interpretation present questions of law. 11 An appellate court independently reviews questions of law decided by a lower court. 12
(b) Notice of Constitutional Question
As a preliminary matter, we address THG’s notice of constitutional question. One day after THG filed its appellate
brief in the special benefits case, it filed a notice of constitutional question.
[9,10] A party challenging the constitutionality of a statute
must strictly comply with § 2-109(E). 13 Section 2-109(E)
requires, in part, that a party presenting a case involving the
federal or state constitutionality of a statute must file and
serve notice thereof with the Supreme Court Clerk by separate written notice or in a petition to bypass “at the time of
filing such party’s brief.” In the majority of our prior cases
insisting on “strict compliance,” a party entirely failed to file
the required notice. 14 But we have also applied strict compliance when the filing of a notice was untimely. 15
Here, although THG filed a notice, it did so the day after
filing its brief. We therefore conclude that THG did not
11
HBI, L.L.C. v. Barnette, 305 Neb. 457,
941 N.W.2d 158 (2020).
12
Noland v. Yost, ante p. 568,
998 N.W.2d 57 (2023).
13
See State v. Denton,
307 Neb. 400,
949 N.W.2d 344 (2020).
14
See, e.g.,
id., 307 Neb. at 404,
949 N.W.2d at 347. Accord, e.g., Smith v.
Wedekind,
302 Neb. 387,
923 N.W.2d 392 (2019); Parker v. State ex rel.
Bruning,
276 Neb. 359,
753 N.W.2d 843 (2008); State v. Feiling,
255 Neb.
427,
585 N.W.2d 456 (1998).
15
See State v. McDowell,
246 Neb. 692,
522 N.W.2d 738 (1994) (notice of
constitutional question filed at time of filing reply brief).
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strictly comply with § 2-109(E) and decline to address the
purported constitutional question.
(c) Interpretation of § 31-752
The crux of SID 596’s appeal is whether its attempt to specially assess THG’s remaining property—which was located
outside SID 596’s boundaries—exceeded its authority under
§ 31-752.
[11,12] Ordinarily, we look no further than the text of
the statute. In order for a court to inquire into a statute’s
legislative history, that statute in question must be open to
construction, and a statute is open to construction when its
terms require interpretation or may reasonably be considered
ambiguous. 16 A statute is ambiguous if it is susceptible of
more than one reasonable interpretation, meaning that a court
could reasonably interpret the statute either way. 17 Thus, we
begin with the text of the statute.
Section 31-752 provides in full:
The board of trustees or the administrator shall not
cause to be assessed for any of the improvements herein
provided, property by law not assessable, or property not
included within the district defined in the preliminary
resolution, and shall not assess property not benefited;
Provided, in cases when such exempt property has been
specially benefited by the improvements, the owner of
such property shall pay the district a sum equivalent
to the amount the property has been specially benefited, which amount may be recovered by the district
in an action against the property owner. If the parties
do not agree as to the amount of the special benefits,
the amount may be determined by the district court in
an action brought by the district for such purpose. The
16
Heist v. Nebraska Dept. of Corr. Servs., 312 Neb. 480,
979 N.W.2d 772
(2022).
17
Fisher v. PayFlex Systems USA,
285 Neb. 808,
829 N.W.2d 703 (2013).
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board of trustees or the administrator may find that any
part or all of such improvements made are of general
benefit to the district except that the board or administrator shall levy special assessments on all lots, parcels,
or pieces of real estate specially benefited to the extent
of the special benefits to such property. The cost of
such improvements shall be paid from the assessments
levied against all the property in the district, in the manner provided by section 31-755, or may be paid from
unappropriated money in its general fund. The cost of
the improvements shall draw interest at the rate of six
percent per annum from the date of acceptance thereof
by the board or administrator until warrants are issued in
payment of the contract price.
SID 596 makes several arguments based on the plain language of § 31-752. In its reading, the phrase “such exempt
property” refers to two categories of real estate that are exempt
from special assessments: “property by law not assessable,
or property not included within the district defined in the
preliminary resolution.” According to SID 596, when either
category of property “has been specially benefited by the
improvements,” it is subject to special assessment. SID 596
further contends that § 31-752 provides a procedure for special
assessment of “such exempt property,” which places the burden on the SID to affirmatively seek either an agreement with
the property owner or an order of the district court in order
to collect payment for special benefits. In support, SID 596
relies on an acquisition of property statute 18 and statutes from
other jurisdictions, 19 and it challenges the “purported legislative history.” 20
18
§ 31-736.
19
Fla. Stat. Ann. § 170.01 (West 2021);
Kan. Stat. Ann. § 12-6a19 (2022);
Wash. Rev. Code Ann. § 35.44.390 (West 2016).
20
Brief for appellants in case No. S-23-134 at 27.
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THG generally responds that a narrower interpretation of
§ 31-752 is necessary because SID 596’s interpretation would
render the statute unconstitutional. THG highlights the legislative history and case law cited by the district court, arguing
that they limit an SID’s authority to levy special assessments
to instances where real property is located within the district.
Although our reasoning differs, we agree that a narrower interpretation is warranted.
Familiar principles of statutory interpretation guide our
analysis. We discuss them in turn.
[13,14] First, when statutory interpretation is one of first
impression, the 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. 21 If the language of
a statute is clear, the words of such statute are the end of any
judicial inquiry regarding its meaning. 22
Generally speaking, the phrase “exempt property” means
property not subject to taxation. For example, Neb. Const.
art. VIII, § 2, empowers the Legislature to exempt from taxation certain classes of property. Pursuant to that power, the
Legislature has exempted from taxation “[p]roperty owned . . .
and used exclusively for educational, religious, charitable, or
cemetery purposes,” subject to certain exceptions. 23 Property
outside improvement district boundaries is not, in that sense,
“exempt property.” In other words, “exempt property” is synonymous with “property by law not assessable.”
21
Adams Land & Cattle v. Widdowson,
314 Neb. 358,
990 N.W.2d 542
(2023).
22
Id.
23
See
Neb. Rev. Stat. § 77-202(1)(d) (Cum. Supp. 2022). See, also, Lincoln
Woman’s Club v. City of Lincoln,
178 Neb. 357,
133 N.W.2d 455 (1965)
(observing Legislature used same language as appeared in Neb. Const.
art. VIII, § 2, in exempting from taxation property owned and used for
educational, religious, or charitable purposes).
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[15,16] Second, it is not within the province of a court to
read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute. 24 To give
effect to all parts of a statute, an appellate court will attempt to
reconcile different provisions so they are consistent, harmonious, and sensible, and will avoid rejecting as superfluous or
meaningless any word, clause, or sentence. 25
SID 596’s interpretation of § 31-752 would effectively
eliminate the sentence therein providing that there are two
sources of funds for improvements. That sentence states: “The
cost of such improvements shall be paid from the assessments
levied against all the property in the district, in the manner
provided by section 31-755, or may be paid from unappropriated money in its general fund.” (Emphasis supplied.) This
sentence identifies only two sources of payment and omits
property located outside the SID’s boundaries.
[17-19] Third, contrary to settled principles, SID 596’s
interpretation is premised upon the Legislature’s purported
intent as deduced from § 31-752 alone. The fundamental
objective of statutory interpretation is to ascertain and carry
out the Legislature’s intent. 26 But statutes pertaining to the
same subject matter should be construed together; such statutes, being in pari materia, must be construed as if they were
one law, and effect must be given to every provision. 27 In construing a statute, the legislative intention is to be determined
from a general consideration of the whole act with reference
to the subject matter to which it applies and the particular
24
Angel v. Nebraska Dept. of Nat. Resources,
314 Neb. 1,
988 N.W.2d 507
(2023).
25
Id.
26
In re Interest of T.W.,
314 Neb. 475,
991 N.W.2d 280 (2023).
27
See
id.
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topic under which the language in question is found, and the
intent as deduced from the whole will prevail over that of a
particular part considered separately. 28
On appeal, SID 596 appears to concede that the statutory
scheme revolves around assessments levied on real property
“in the district” to fund improvements installed by an SID.
It notes, “Indeed of the 31 times the legislature discussed
‘property’ in the statutes addressing [SIDs], the term was
further defined with ‘in the district’ or similar language 21
times.” 29 SID 596’s argument suggests that § 31-752 stands
alone—in this one instance, the Legislature intended to grant
an SID the power and authority to seek payment of special
benefits to property located outside the SID’s boundaries. We
are not persuaded.
Nothing in § 31-752 or Nebraska’s other SID statutes
explicitly states that an SID would have authority to specially
assess property outside its boundaries. The Legislature’s consistent terminology seems calculated to ensure that the cost
of improvements is borne by those having an interest in the
real property “in the district.” SID 596’s interpretation would
defeat that purpose.
[20,21] A court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose
to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute,
rather than a construction defeating the statutory purpose. 30
Accordingly, we hold that the phrase “such exempt property”
in § 31-752 refers only to “property by law not assessable”;
it does not refer to “property not included within the district
defined in the preliminary resolution.”
28
Id.
29
Brief for appellants in case No. S-23-134 at 28.
30
Angel v. Nebraska Dept. of Nat.
Resources, supra note 24.
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We do not rely upon the legislative history. However, we
cite it for interested readers. 31 But, as we have said, the statutory language is clear. SID 596’s assignments lack merit.
(d) Other Purported Bars to
Special Benefits Claim
[22] Our statutory interpretation disposes of SID 596’s
appeal. THG presents several other arguments that SID 596’s
special benefits claim was barred, but an appellate court is
not obligated to engage in an analysis that is not needed to
adjudicate the controversy before it. 32 The district court did
not err in entering summary judgment in favor of THG in the
special benefits case.
3. THG’s Claims
THG assigns error to multiple aspects of trial in the condemnation case and the denial of attorney fees in the special
benefits case. We address each claim.
(a) Admission of Evidence
and Jury Instruction
We read THG’s first assignment to challenge, broadly, the
court’s admission of evidence on special benefits and its
submission of that issue to the jury. THG asserts that SID
596’s failure to appeal from the board of appraisers’ award
effectively precluded any claim of special benefits. It also
argues that any alleged benefits flowing from the condemnation were “merely general benefits” 33 because, it asserts, the
31
See, 1967 Neb. Laws, L.B. 121; Floor Debate, L.B. 121, 77th Leg. 130
(Jan. 31, 1967); Standing Committee Report, L.B. 121, Urban Affairs
Committee, 77th Leg. (Jan. 26, 1967); Committee Statement, L.B. 121,
Urban Affairs Committee, 77th Leg. (Jan. 26, 1967); Urban Affairs
Committee Hearing, L.B. 121, 77th Leg. 11-12 (Jan. 25, 1967).
32
In re Estate of Walker, ante p. 510, 997 N.W.2d 595 (2023).
33
Brief for appellant in case No. S-22-688 at 23.
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improvements were designed to serve members of the general
public equally and did so.
(i) Standard of Review
[23,24] 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. 34 Jury instructions
are subject to the harmless error rule, and an erroneous jury
instruction requires reversal only if the error adversely affects
the substantial rights of the complaining party. 35
(ii) Discussion
We are not persuaded that the purported errors unfairly
prejudiced or adversely affected a substantial right of THG.
Although the jury considered evidence and was instructed on
special benefits, it ultimately did not reach that issue in its verdict. On this record, we find no reversible error.
(b) Expert Testimony
Two of THG’s assignments challenge the admission of SID
596’s expert testimony.
(i) Standard of Review
[25,26] An appellate court reviews de novo whether the
trial court applied the correct legal standards for admitting an
expert’s testimony, but a trial court’s ruling in receiving or
excluding an expert’s testimony which is otherwise relevant
will be reversed only when there has been an abuse of discretion. 36 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 37
34
In re Estate of Walker, supra note 32.
35
de Vries v. L & L Custom Builders, 310 Neb. 543,
968 N.W.2d 64 (2021).
36
McGill Restoration v. Lion Place Condo. Assn.,
309 Neb. 202,
959 N.W.2d
251 (2021).
37
Carson v. Steinke,
314 Neb. 140,
989 N.W.2d 401 (2023).
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(ii) Snyder
THG contends that Snyder was not an appraiser and did
not use any of Nebraska’s recognized methodologies to arrive
at his valuation of special benefits. SID 596 responds that
Snyder was qualified to testify as an expert and that his testimony was relevant. SID 596 further argues that the admission
of Snyder’s testimony was not prejudicial, because the jury
did not reach the issue of special benefits. We agree.
We have already concluded that there was no reversible
error in the admission of evidence on special benefits. It necessarily follows that there was no prejudice from the admission
of Snyder’s testimony.
(iii) Rockwell
THG claims that Rockwell’s testimony was not based upon
specialized or firsthand knowledge. THG further asserts that
the jury “presumably did not award” the compensation THG
sought, only because Rockwell “falsely represented” to the
jury a nonconforming use of its property. 38 SID 596 generally
responds that Rockwell had the requisite experience to offer
her opinion and that weighing the evidence was a matter for
the jury.
[27] As SID 596 points out, triers of fact are not required
to take opinions of experts as binding upon them, and determining the weight to be given expert testimony is uniquely
the province of the fact finder. 39 Here, the jury reasonably
could have given more weight to Rockwell’s testimony than
to evidence presented by THG. THG’s argument is speculation, and we see no abuse of discretion by the court.
(c) Motion for New Trial
THG’s two remaining assignments in the condemnation case
concern the overruling of its motion for new trial.
38
Brief for appellant in case No. S-22-688 at 30.
39
Lewison v. Renner, 298 Neb. 654,
905 N.W.2d 540 (2018).
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(i) Standard of Review
[28] A motion for new trial is addressed to the discretion of
the trial court, whose discretion will be upheld in the absence
of an abuse of that discretion. 40
(ii) Comment During
Closing Argument
THG’s arguments largely focus on one comment made by
SID 596’s counsel during closing argument. THG asserts that
SID 596 deprived it of a fair trial by “insinuating to the jury
that THG had ‘concealed’ emails that the District Court properly excluded from evidence.” 41 Relying on the principle that
“one cannot unring a bell,” 42 THG argues that counsel’s comment was so inflammatory that a mistrial was warranted.
SID 596 responds that even assuming the comment was
improper, it was “‘an isolated event which hardly permeated
the proceedings so as to prevent a fair verdict.’” 43 SID 596
also points out that the case upon which THG relies involved
a motion for mistrial, but THG did not move for mistrial here.
We disagree that the lone comment was so inflammatory that
it amounted to reversible error. The record shows that THG
immediately objected to counsel’s comment, and the court sustained the objection. Closing argument then continued, without
any similar comments. On these facts, we are not persuaded
that the trial court’s decision was based upon reasons that
were untenable or unreasonable or that its actions were clearly
against justice or conscience, reason, and evidence. 44
40
Marr v. West Corporation, 310 Neb. 21,
963 N.W.2d 520 (2021).
41
Brief for appellant in case No. S-22-688 at 33.
42
Id. at 34 (quoting State v. Archbold,
217 Neb. 345,
350 N.W.2d 500 (1984)
(internal quotation marks omitted)).
43
Brief for appellee in case No. S-22-688 at 25-26 (quoting Hike v. State,
supra note 7).
44
See Carson v.
Steinke, supra note 37.
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(iii) Other Alleged Grounds
THG’s other assignment is premised upon assignments that
we have already rejected. THG asserts that the “interjection”
of special benefits, SID 596’s expert testimony, and the comment during closing argument “each independently warranted
a new trial.” 45 For reasons we have discussed, this assignment
lacks merit.
(d) Attorney Fees
[29] Finally, on cross-appeal in the special benefits case,
THG asserts that the district court erred in overruling its
motion for attorney fees. As a general rule, attorney fees
and expenses may be recovered in a civil action only where
provided for by statute or when a recognized and accepted
uniform course of procedure has been to allow recovery of
attorney fees. 46 THG claims that attorney fees were appropriate
under multiple statutes.
(i) Standard of Review
[30] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. 47
(ii) Frivolousness or Bad Faith
[31,32] THG first argues that attorney fees were appropriate under Neb. Rev. Stat. § 25-824 (Reissue 2016). Section
25-824(2) allows a court to award reasonable attorney fees
and court costs “against any attorney or party who has
brought or defended a civil action that alleges a claim or
defense which a court determines is frivolous or made in bad
faith.” A frivolous action is one in which a litigant asserts
a legal position wholly without merit; that is, the position
is without rational argument based on law and evidence to
45
Brief for appellant in case No. S-22-688 at 34, 35.
46
Echo Group v. Tradesmen Internat.,
312 Neb. 729,
980 N.W.2d 869
(2022).
47
Id.
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support the litigant’s position. The term “frivolous” connotes
an improper motive or legal position so wholly without merit
as to be ridiculous. 48 Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in
favor of the one whose legal position is in question. 49
Resolving all doubts about SID 596’s legal positions in its
favor, we find that SID 596’s argument that it could specially
assess property outside its boundaries, although unavailing,
was not so unreasonable as to be deemed frivolous or taken
in bad faith. Prior to this case, the Nebraska appellate courts
had not examined the language in § 31-752 or the scope of an
SID’s authority to specially assess property within or without
its boundaries. The court did not abuse its discretion in denying attorney fees under § 25-824.
(iii) Eminent Domain Statutes
Alternatively, THG contends that Neb. Rev. Stat. §§ 76-720
and 76-726 (Reissue 2018)—found in the chapter of the
Nebraska Revised Statutes addressing eminent domain—permitted an award of attorney fees. We disagree.
The plain language of those statutes does not support
THG’s argument. Its argument captures a phrase—“in connection with”—from one of our prior decisions. 50 Using that
phrase, it argues that the eminent domain statutes applied
in the special benefits case because “SID 596 levied special
assessments in connection with a proceeding initiated by SID
596 seeking to acquire real property by condemnation.” 51 That
argument lacks merit.
Like the special benefits case here, the proceeding in our
prior decision was not a condemnation. We read our prior
48
City of Omaha v. Professional Firefighters Assn.,
309 Neb. 918,
963
N.W.2d 1 (2021).
49
Id.
50
Simon v. City of Omaha,
267 Neb. 718, 728,
677 N.W.2d 129, 137 (2004).
51
Brief for cross-appellant in case No. S-23-134 at 48 (emphasis supplied).
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decision to authorize fees only in a condemnation action. To
the extent that our prior decision 52 can be read more broadly,
we disapprove of that reading. We find no abuse of discretion by the court in declining to award attorney fees under
§§ 76-720 and 76-726.
VI. CONCLUSION
As a matter of first impression, we conclude that § 31-752
does not authorize an SID to levy a special assessment on
property located outside the SID’s boundaries. Finding no
merit in the parties’ assignments of error, we affirm the district
court’s judgments.
Affirmed.
Miller-Lerman, J., not participating.
52
See Simon v. City of Omaha, supra note 50.
