Summary
The Nebraska Supreme Court affirmed a condemnation judgment awarding Tribedo, LLC, compensation for property taken by Douglas County School District No. 10 and diminution in the value of the remainder. The court held that evidence of grading, fill, wetlands, and other factors was admissible to the extent those factors affected the remainder’s fair market value. It also upheld the jury instructions, damages award, and the district court’s award of attorney fees, expert fees, and interest.
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Practice areas
Questions Presented
- Whether the district court improperly admitted expert testimony concerning itemized costs and other factors allegedly affecting the diminished fair market value of the remainder.
- Whether the jury instructions adequately stated the law governing compensation for the condemned property and severance damages to the remainder.
- Whether the jury's $4,625,967 condemnation award was unsupported or excessive.
- Whether the district court abused its discretion by denying a new trial.
- Whether the district court abused its discretion in awarding Tribedo $590,924.89 in attorney fees.
Holdings
- Evidence of itemized costs and other consequences of a condemnation may be admitted when the evidence is offered as a factor affecting the remainder property's fair market value, rather than as an impermissible separate add-on to the damages award.
- Just compensation for a partial taking consists of the fair and reasonable market value of the property actually taken plus the difference between the fair and reasonable market value of the remainder before and after the taking. Severance damages may include all nonspeculative factors and inconveniences that would influence a purchaser, but only insofar as they affect the remainder's market value.
- A condemnation jury instruction is adequate when, viewed as a whole, it correctly states the law, is not misleading, and covers the issues submitted to the jury; refusal to give an additional instruction is not reversible error absent prejudice.
- The jury's condemnation award must be upheld when supported by competent evidence and not clearly wrong, and an authorized attorney-fee award will be upheld absent an abuse of discretion. The jury's $4,625,967 award and the district court's $590,924.89 attorney-fee award satisfied those standards.
Key quotations
“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.” (726-727)
“Ultimately, evidence of itemized damages may be considered only if such damages diminish the market value of the property.” (727)
“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.” (729)
Factual background
Tribedo acquired a 73.99-acre tract in Douglas County, Nebraska, intending to develop it as a mixed-use commercial and residential project. Elkhorn condemned 43.36 acres for a new high school site, leaving Tribedo with a 30.63-acre remainder. Tribedo's appraisers testified that the condemnation diminished the remainder's fair market value because of changes in development potential, grading and dirt-work requirements, wetlands mitigation, and other effects of dividing the tract. The jury awarded $3,295,967 for the land taken and $1,330,000 for the diminished value of the remainder.
Procedural history
Elkhorn condemned 43.36 acres of Tribedo's 73.99-acre tract for a new high school site. The board of appraisers awarded $2,601,600, but after trial the district court entered judgment on a jury verdict awarding $4,625,967 in total compensation, along with prejudgment interest, postjudgment interest, and $590,924.89 in attorney fees. The district court denied Elkhorn's motions to strike evidence, for judgment notwithstanding the verdict, and for a new trial. The Nebraska Supreme Court affirmed.