Walter C. Diers Partnership v. State

Furthermore, the evidence reveals that David began to search
for a more suitable program almost immediately after he termi-
nated his involvement with R-SAFE. Such behavior is not con-
sistent with someone who “did not believe that he needed sex
offender treatment, did not want to participate in the treatment,
and chose to delay compliance until it was too late.” Rather,
this evidence indicates that David was working to comply with
the court’s orders, to rehabilitate himself, and to be reunited
with Kenna.
While it is true that Kenna should not be made to wait
indefinitely for David to rehabilitate himself, it is important to
recognize the importance of granting a parent adequate oppor-
tunity to effectuate rehabilitation. David should be provided
with an adequate opportunity to comply with the court’s reha-
bilitation plan.
David was provided with approximately 3 months to com-
plete a treatment program. Evidence in the record revealed
that a sex offender treatment program can last up to 2 years.
David’s failure to complete his treatment during this brief time
period does not, without more, establish that termination of his
parental rights is in Kenna’s best interests.
Walter C. D iers PartnershiP, a nebraska PartnershiP,
aPPellee anD Cross -aPPellant, v. state of
nebraska , D ePartment of roaDs ,
aPPellant anD Cross -aPPellee .
767 N.W.2d 113
Filed May 5, 2009. 	No. A-08-274.
1. Trial: Expert Witnesses: Appeal and Error. The admission of expert testimony
is ordinarily within the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion.
2. 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.
3. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
WAlTER c. DiERS pARTNERShip v. STATE 	561
cite as 17 Neb. App. 561
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

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. ____: ____. in an eminent domain proceeding, damages are to be measured as of
the date of the taking.
6. Eminent Domain: Real Estate: Valuation. There are three generally accepted
approaches used for the purpose of valuing real property in eminent domain
cases: (1) the market data approach, or comparable sales method, which estab-
lishes value on the basis of recent comparable sales of similar properties; (2) the
income, or capitalization of income, approach, which establishes value on the
basis of what the property is producing or is capable of producing in income; and
(3) the replacement or reproduction cost method, which establishes value upon
what it would cost to acquire the land and erect equivalent structures, reduced by
depreciation. Each of these approaches is but a method of analyzing data to arrive
at the fair market value of the real property as a whole.
7. Eminent Domain: Damages. Ordinarily, the entire property involved in an emi-
nent domain proceeding is to be valued and damages to it assessed as a whole.
8. Rules of Evidence: Expert Witnesses. An expert’s opinion is ordinarily admis-
sible under Neb. Rev. Stat. § 27-702 (Reissue 2008) if the witness (1) qualifies
as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or
her opinion, and (4) is prepared to disclose the basis of that opinion on cross-
examination.
9. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
10. Eminent Domain: Damages. Where, in eminent domain proceedings, the prop-
erty is clearly divisible from the standpoint of use and adaptability, presenting
different factors and elements of damage, it definitely is not error to permit such
division. in determining whether the property is to be considered as a whole or
as units, usually unity of use is given greater emphasis, and has been called the
controlling and determining factor.
11. Eminent Domain: Evidence. Generally, evidence as to the sale of comparable
property is admissible as evidence of market value, provided there is adequate
foundation to show the evidence is material and relevant. The foundation evi-
dence should show the time of the sale, the similarity or dissimilarity of market
conditions, the circumstances surrounding the sale, and other relevant factors
affecting the market conditions at the time.
12. ____: ____. Whether properties, the subject of other sales, are sufficiently similar
to the property condemned to have some bearing on the value under consider-
ation, and to be of aid to the jury, must necessarily rest largely in the sound
discretion of the trial court.
13. Eminent Domain: Interest: Appeal and Error. Neb. Rev. Stat. § 76-711
(Reissue 2003) provides that if an appeal is taken from the award of the apprais-
ers by the condemnee and the condemnee obtains a greater amount than that
allowed by the appraisers, the condemnee shall be entitled to interest from the
date of the deposit at the rate provided in Neb. Rev. Stat. § 45-104.02 (Reissue
2004), as such rate may from time to time be adjusted, compounded annually,
562 	17 NEbRASKA AppEllATE REpORTS

on the amount finally allowed, less interest at the same rate on the amount with-
drawn or on the amount which the condemnor offers to stipulate for withdrawal
as provided by Neb. Rev. Stat. § 76-719.01 (Reissue 2003).
14. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
Appeal from the District court for Dodge county: John e.
samson, Judge. Affirmed and remanded with directions.
Jon 	bruning, 	Attorney 	General, 	bradley 	D. 	Thornton,
Jennifer A. huxoll, and Jeffery T. Schroeder for appellant.
Thomas b. Thomsen, of Sidner, Svoboda, Schilke, Thomsen,
holtorf, boggy & Nick, for appellee.
inboDy, chief Judge, and sievers and Cassel, Judges.
Cassel, Judge.
i. iNTRODUcTiON
The State of Nebraska, Department of Roads (the State),
condemned land in a rapidly evolving commercial develop-
ment owned by Walter c. Diers partnership (Diers) at the
intersection of U.S. highways 275 and 30 on the eastern edge
of Fremont, Nebraska. in the appeal to district court from the
county court’s award, the court entered judgment pursuant
to jury verdict for $1,043,079, without mentioning interest
on the award. We find no abuse of discretion in the court’s
evidentiary rulings admitting the expert testimony of Diers’
appraiser, excluding the State’s offer of an earlier appraisal
prepared for Diers for another purpose, and admitting the prop-
erty owner’s testimony regarding the sale price of other lots
within the development. because we conclude that Neb. Rev.
Stat. § 76-711 (Reissue 2003) mandated that Diers be awarded
interest on the judgment, we remand with directions to amend
the judgment.
ii. bAcKGROUND
The State acquired fee simple title to 4.12 acres of Diers’
land and a temporary easement to an additional 4.47 acres as of
September 28, 2004, for purposes of road construction. Diers
appealed to the district court from the assessment by the county
court’s board of appraisers. The district court conducted a jury
WAlTER c. DiERS pARTNERShip v. STATE 	563
cite as 17 Neb. App. 561

trial on December 11 to 14 and 18, 2007, for the sole purpose
of assessing the damages that resulted from the taking. At the
conclusion of the evidence, the jury awarded Diers $1,043,079.
The court entered judgment pursuant to the verdict but did not
explicitly award Diers any interest.
1. lanD
The land acquired by the State was originally part of a 195-
acre parcel owned exclusively by Diers and lies at the northeast
corner of Diers’ property. This corner adjoins the intersection
of highways 275 and 30 and is located on the eastern edge
of Fremont. in light of the location, the parties do not dispute
that the highest and best use of the property acquired was for
development purposes.
As of September 28, 2004, Diers had taken significant
measures to develop the northern 125 acres of the property,
which was separated from the southern 70 acres of the prop-
erty by a creek. charles h. Diers (charles), one of the part-
ners in Diers, began to contemplate developing the northern
125 acres in 1998, when he hired a development coordinator
to create site plans. Ultimately, Diers decided to develop the
land in stages, in order to avoid the prohibitive costs associ-
ated with developing the entire 125 acres at one time. These
costs would have included both the cost of improving the
land and the cost of paying increased real estate taxes on
lots after they had been platted but not yet sold, and a likely
loss associated with having created more lots than the market
then demanded.
in approximately 2002, Diers had a parkway constructed in
roughly the middle of the property, running from the northern
edge to the southern boundary of the property. Although the
city of Fremont actually constructed the parkway, Diers paid
for a large portion of the cost associated with its construction.
The parkway has two lanes on each side, a landscaped median,
and streetlights. The parkway also contained sewer, water,
and gas lines that would be connected to lots as they were
later developed.
Diers then platted four lots that were adjacent to the park-
way and located at the northern edge of the property. in order
564 	17 NEbRASKA AppEllATE REpORTS

to do so, Diers first developed a preliminary plat which showed
a development plan for the entire 125 acres. On April 30,
2002, the city council approved Diers’ preliminary plat, which
contained 27 proposed lots and was entitled “Diers Second
Addition.” The approval of the preliminary plat remained effec-
tive for 2 years. At the same time as the approval of the pre-
liminary plat, Diers received approval of a final plat of the
four lots adjacent to the parkway. This plat was also called
Diers Second Addition. As a result of the final platting, the
four lots were rezoned from agricultural to commercial and
became salable.
prior to the condemnation, Diers sold and fully developed
three of the four lots in the final plat of the second addition.
A chain restaurant purchased one lot for $300,000, or $4.47
per square foot. charles testified that he purposefully gave the
restaurant a significant discount because he wanted to “jump-
start” development. A local bank acquired two lots for a total
of $1,269,773, or $10.16 per square foot. To accomplish these
sales and the development of these properties, Diers had an
additional road constructed which ran parallel to highway 30
and along the southern edge of these lots.
in 2002, Diers also established the “Deer pointe” com-
mercial association and created restrictive covenants for the
commercial development which Diers had planned. prior
to the condemnation, Diers had also obtained a topographi-
cal map of the entire area and had a boundary survey con-
ducted. by the time the taking occurred, Diers had spent a
total of approximately $2.6 million to develop the northern
125 acres.
At trial, Diers adduced evidence that but for the taking, the
area of the taking would have already been developed, plat-
ted, and sold. Diers had created and circulated a pricelist to
market the lots that were proposed but not yet developed as
of the date of condemnation. Douglas halvorson, the site’s
development coordinator, and charles testified that they had
originally planned to next develop the lots on the corner of
highways 275 and 30 but discontinued these plans once they
became aware of the taking. Numerous witnesses testified
to the desirability of the location where the taking occurred.
WAlTER c. DiERS pARTNERShip v. STATE 	565
cite as 17 Neb. App. 561

primarily, the appeal of this particular location was that it was
in a high-traffic area, was highly visible, and would have been
easily accessible.
Diers 	also 	adduced 	evidence 	regarding 	the 	detrimental
effects of the taking on the remainder of the property. The
taking included the removal of an access which would have
allowed convenient entrance to the land remaining in the north-
east corner of the property. Richard See—Diers’ certified real
estate appraiser—testified that this land would now have to
be accessed via the parkway, which was 2,000 feet from the
proposed lots, whereas the access taken by the State would
have been 300 feet from the lots. Diers offered the testimony
of halvorson and two others who had worked on develop-
ing the property, all of whom testified that the taking of this
access made the property in this area less valuable to poten-
tial buyers.
2. valuation testimony
Diers offered See’s expert testimony regarding the damages
resulting from the taking. See concluded that the damages
totaled $2,158,158. See calculated the damages resulting from
the loss of land based on the assumption that but for the taking,
the northeast corner of Diers’ property would have otherwise
been sold as individual commercial lots as depicted in the
preliminary plat of Diers Second Addition. See used already-
developed lots as comparables to arrive at the condemned
property’s value by factoring in the costs associated with devel-
oping the condemned property. See then calculated damages
to the remainder of the land on the premise that removing the
access would transform corner lots—which have a higher value
due to easy access—into interior lots—which are less valuable
because access is more difficult.
charles testified regarding the sale price of the lots on the
portions of the property which were sold both before and after
the taking and which had been commercially developed.
The State offered the testimony of Gary hassebrook, a gen-
eral certified appraiser, and that of another appraiser regard-
ing the land’s value. At the request of Diers’ accountant,
hassebrook appraised the property for tax purposes and valued
566 	17 NEbRASKA AppEllATE REpORTS

the land at $25,000 per acre as of January 16, 2003. The district
court sustained Diers’ objection to the relevance of the testi-
mony, excluding the appraisal both because it was “too remote
in time” and because the court “didn’t hear anything linking
[hassebrook’s] appraisal from January of ’03 to September 28,
2004,” the date of the taking.
Although no error is assigned regarding the amount of the
jury verdict or the admissibility of the State’s evidence, for the
sake of completeness, we note that the State presented valua-
tion testimony of its expert, George Tesar, Jr., a general certi-
fied appraiser, who testified that the value of the property taken
by the State was $137,066 total.
The State timely appeals, and Diers cross-appeals.
iii. ASSiGNMENTS OF ERROR
The State alleges, as restated, that the district court erred
(1) in allowing valuation testimony from See which valued the
subject parcel using a “lot” or “subdivision” method of valua-
tion, including a hypothetical assumption that the property
acquired was fully developed as of the valuation date; (2) in
excluding hassebrook’s expert testimony regarding his January
16, 2003, appraisal of Diers’ property; and (3) in overruling the
State’s objection to charles’ testimony regarding the sale of
developed lots on the subject property.
On cross-appeal, Diers alleges that the district court erred in
failing to award interest pursuant to § 76-711 on the judgment.
iV. STANDARD OF REViEW
[1] The admission of expert testimony is ordinarily within
the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion. McNeel v. Union Pacific RR. Co., 276
Neb. 143, 753 N.W.2d 321 (2008).
[2] 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. Sturzenegger v. Father Flanagan’s Boys’ Home, 276
Neb. 327, 754 N.W.2d 406 (2008).
[3] An appellate court reviews questions of law indepen-
dently of the lower court’s conclusion. County of Hitchcock v.
Barger, 275 Neb. 872, 750 N.W.2d 357 (2008).
WAlTER c. DiERS pARTNERShip v. STATE 	567
cite as 17 Neb. App. 561

V. ANAlYSiS
1. the state’s aPPeal
All of the State’s assignments of error pertain to whether
particular evidence regarding the valuation of Diers’ damages
is relevant and admissible. For this reason, we first recall the
applicable rules for calculating damages in a condemnation
action and address the district court’s ruling regarding each
piece of disputed evidence.
[4,5] in a condemnation proceeding, the landowner whose
property is taken is entitled to compensation for the damages
caused to the landowner’s property. See Moyer v. Nebraska
City Airport Auth., 265 Neb. 201, 655 N.W.2d 855 (2003). in
a condemnation action, there are two elements of damage: (1)
market value of the land taken or appropriated and (2) diminu-
tion in value of the land remaining, less special benefits. Id.
Damages are to be measured as of the date of the taking. See
Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751
N.W.2d 608 (2008).
[6] There are three generally accepted approaches used for
the purpose of valuing real property in eminent domain cases:
(1) the market data approach, or comparable sales method,
which establishes value on the basis of recent comparable
sales of similar properties; (2) the income, or capitalization
of income, approach, which establishes value on the basis of
what the property is producing or is capable of producing in
income; and (3) the replacement or reproduction cost method,
which establishes value upon what it would cost to acquire the
land and erect equivalent structures, reduced by depreciation.
Id. Each of these approaches is but a method of analyzing
data to arrive at the fair market value of the real property as a
whole. Id.
in the present case, all valuation testimony was based upon
the comparable sales method and neither party argues that
either of the remaining methods of valuation was appropri-
ate—nor do we believe that this is a situation where either
would apply.
(a) See’s Expert Testimony
[7] The State alleges that See’s expert testimony violated the
“unit” rule and thus is not relevant to valuation. Ordinarily, the
568 	17 NEbRASKA AppEllATE REpORTS

entire property involved in an eminent domain proceeding is
to be valued and damages to it assessed as a whole. Y Motel,
Inc. v. State, 193 Neb. 526, 227 N.W.2d 869 (1975). The State
claims that See’s testimony violated the “unit” rule (1) by
valuing the condemned land as if it had been subdivided, (2)
by valuing the southern 70 acres on a different per-unit basis
from the northern 125 acres, and (3) by calculating severance
damages as the total of the damages to each affected tract. We
address each issue in turn.
[8] The admission of expert testimony is ordinarily within
the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion. McNeel v. Union Pacific RR. Co., 276
Neb. 143, 753 N.W.2d 321 (2008). An expert’s opinion is
ordinarily admissible under Neb. Rev. Stat. § 27-702 (Reissue
2008) if the witness (1) qualifies as an expert, (2) has an opin-
ion that will assist the trier of fact, (3) states his or her opinion,
and (4) is prepared to disclose the basis of that opinion on
cross-examination. Smith v. Colorado Organ Recovery Sys.,
269 Neb. 578, 694 N.W.2d 610 (2005). The State’s arguments
primarily pertain to whether See’s testimony is relevant and
thus of assistance to the trier of fact.
(i) Valuation Pursuant to Subdivision Method
The State insists that the particular land taken had to be val-
ued using comparables similar in size to Diers’ entire property
because the “unit” rule of valuation required that the land be
valued as a whole. The State alleges that See’s testimony is
inadmissible because he valued the land taken on the premise
that it would have otherwise been subdivided, developed, and
sold. in his appraisal, See assumed that the property taken
would have composed a portion of the proposed lots depicted
in the preliminary plat of the second addition. he then valued
these lots by using comparables similar in size but fully devel-
oped. See then accounted for the fact that the comparable lots
had been developed by accounting for the cost of developing
the property. in arriving at the proposed lots’ value, See also
accounted for the likely delay in selling the property and a
bulk sale. See determined a per-square-foot value for these
lots—which was the same for all of the lots. See then calcu-
lated the value of the condemned land by taking the number of
WAlTER c. DiERS pARTNERShip v. STATE 	569
cite as 17 Neb. App. 561

square feet condemned and multiplying it by the per-square-
foot value. in determining the total value of the land taken,
See added the full value of the land the State acquired in fee
simple to the rental value of the land to which the State took a
temporary easement.
Where land has not been developed at all, but has the
potential for development, the “unit” rule applies and the
land must be valued as one unit. See Rath v. Sanitary District
No. One, 156 Neb. 444, 56 N.W.2d 741 (1953). however, the
Nebraska Supreme court’s decision in Timmons v. School
Dist., 173 Neb. 574, 114 N.W.2d 386 (1962), provides an
alternative basis for valuation where land is in the process of
development. Diers maintains that the valuation method in
Timmons applies.
in Timmons, the Nebraska Supreme court upheld the trial
court’s decision to reject proposed jury instructions that would
have instructed the jury not to consider the condemned land’s
subdivided value. One such instruction stated that the property
could not be valued “‘as though it were platted and public
improvements installed by a computation of the aggregate
value of such prospective subdivision into lots deducting there-
from the estimated cost of such public improvements not yet
made and other expenses incident to the future developments
of the property.’” Id. at 583, 114 N.W.2d at 392. The land-
owner offered evidence of his property’s value according to
the method proscribed by this instruction. in upholding the
district court’s decision to reject this instruction, the Nebraska
Supreme court determined that the extent to which the owner
had already taken substantial steps to develop the condemned
property justified the use of the valuation method proscribed
by the instruction. in particular, the property owner had pur-
chased a large tract of property, had planned to develop it into
residential subdivisions in stages, had filed a preliminary plat
for the area taken, and had already fully developed the prop-
erty directly adjacent to the area of the taking. At the time of
the taking, the pavement and all utilities had been brought up
to the edge of the condemned area, the condemned area had
been graded, and a street had been cut and graded through
the condemned area in preparation for paving. The property
570 	17 NEbRASKA AppEllATE REpORTS

owner had spent a total of $28,000 to develop the land that
was condemned.
[9] considering all of the circumstances, we cannot say
that the district court abused its discretion in admitting See’s
expert testimony. When the Nebraska Evidence Rules commit
the evidentiary question at issue to the discretion of the trial
court, an appellate court reviews the admissibility of evidence
for an abuse of discretion. Japp v. Papio-Missouri River NRD,
273 Neb. 779, 733 N.W.2d 551 (2007). The relevant method
of valuation is determined by the facts, and See’s valuation
accounted for the facts in the record. in the instant case,
Diers put a significant amount of time and effort into devel-
oping the property, as did the property owner in Timmons.
both had created an overall development scheme for a large
tract of property, had spent significant sums to realize the
overall scheme, had fully developed other portions of the
property, and had preliminarily platted the area of the taking.
Although, in the instant case, the preliminary plat had expired
approximately 5 months before the taking, this difference
is of little significance. According to undisputed testimony,
it would have been a mere formality to obtain reapproval if
the taking had not intervened. The only notable difference
between the instant case and Timmons is that Diers had not
yet physically improved the property subject to the taking or
immediately adjacent thereto. however, we find that this is a
matter that goes to the weight of the evidence as opposed to
its admissibility.
The state of development of the overall tract in the instant
case made finding a precisely comparable tract of land diffi-
cult. The tracts of land utilized as comparable properties varied
from the subject land in their state of development. They were
either large, undeveloped tracts similar in size to Diers’ entire
tract or small, developed properties similar in size to the lots
Diers had preliminarily platted. The larger undeveloped proper-
ties were dissimilar because they had not yet been improved,
while Diers had already begun to improve the property and sell
it off in small developed tracts. The smaller developed proper-
ties were dissimilar because they had been finally platted and
improved, whereas this was not true for a significant portion
WAlTER c. DiERS pARTNERShip v. STATE 	571
cite as 17 Neb. App. 561

of Diers’ property. The record reflects that Diers’ tract was
somewhere in between the two types of comparables. in order
to obtain a valuation using comparables, See had to choose
one category of dissimilar property and make adjustments to
analogize it to Diers’ property as best he could. based upon the
record, the district court did not abuse its discretion in permit-
ting See to do so.
(ii) Valuation of Portions of Parcel
on Distinct Per-Unit Bases
The State next contends that the district court abused its dis-
cretion in overruling an objection to See’s testimony in which
he valued the southern 70 acres of the property separately from
the northern 125 acres for purposes of determining damages. in
his appraisal, See valued the 70 acres on a per-acre basis and at
a lesser per-unit value than the 125 acres. The State contends
that this testimony also violated the “unit” rule.
[10] As noted above, ordinarily, the entire property involved
in an eminent domain proceeding is to be valued and damages
to it assessed as a whole. Y Motel, Inc. v. State, 193 Neb. 526,
227 N.W.2d 869 (1975). See Walkenhorst v. State, 253 Neb.
986, 573 N.W.2d 474 (1998). Where, however, it is clearly
divisible from the standpoint of use and adaptability, present-
ing different factors and elements of damage, it definitely is
not error to permit such division. Y Motel, Inc. v. State, supra.
in determining whether the property is to be considered as a
whole or as units, usually unity of use is given greater empha-
sis, and has been called the controlling and determining factor.
Id. in Y Motel, Inc., the Nebraska Supreme court upheld the
district court’s decision to admit valuation testimony in which
a motel property was valued separately from adjoining property
that was unimproved, except for a barn.
Similarly, the record in the case before us reflects that the
northern 125 acres and the southern 70 acres were not adapt-
able for the same use. Diers had filed a preliminary plat for the
northern 125 acres and had begun to develop it for commercial
use. in contrast, Diers had not developed the southern 70 acres
of the property, had no plans to do so in the immediate future,
and, from the photographic evidence, appears to have used it
572 	17 NEbRASKA AppEllATE REpORTS

as farmland. Diers presented evidence that the southern portion
was better adapted to development for residential purposes.
Further, the northern 125 acres was separated from the south-
ern 70 acres by a creek, which served as a significant physical
boundary affecting the adaptability of the southern portion. in
addition, the northern 125 acres was bordered by highway 30
on the north, but there is no such busy road to the south of
the property. in light of the substantial differences between
the northern and southern portions of the overall tract, we find
no abuse of discretion in the district court’s ruling allowing
the testimony.
(iii) Calculation of Remainder Damages
Finally, the State contends that See violated the “unit” rule
when he calculated remainder damages as the sum of the dam-
age to three “corner” lots caused by the taking of an access
point. See calculated damages as the difference in value of
these lots with the access point and without the access point.
While damage to the remaining property as a “whole” is the
correct measure of remainder damages, damage to the “whole”
may result from an injury which affects only particular portions
of the property. The Nebraska Supreme court’s decision in
McGinley v. Platte Valley Public Power and Irrigation District,
133 Neb. 420, 275 N.W. 593 (1937), illustrates this point.
in McGinley, the condemnor acquired by eminent domain
78.13 acres of riparian land from the landowners’ cattle ranch,
which exceeded 46,000 acres in total size. The property own-
ers offered testimony that each of the remaining acres of
land would decrease by $1 in value, even though the record
reflected that the taking detrimentally affected only a portion
of the property and that the remainder of the property had not
been affected. The Nebraska Supreme court held that the trial
court erred in permitting the jury to assess damages on a per-
acre basis for the entire property where portions of the property
were not affected. The court reasoned that “[t]here must be a
limit to remote, unaffected lands that may be considered in
estimating depreciation in their value by condemnation of con-
tiguous lands taken for public purposes.” Id. at 426, 275 N.W.
at 596.
WAlTER c. DiERS pARTNERShip v. STATE 	573
cite as 17 Neb. App. 561

Thus, severance damages, although assessed to the “whole”
property, may result from the injury caused to only portions of
the property. Therefore, the district court did not abuse its dis-
cretion in admitting See’s expert testimony that only a portion
of the property was injured by the severance.
The State has cited Frank v. State, 176 Neb. 759, 127
N.W.2d 300 (1964), in support of its argument that damages
must be assessed to the whole. in Frank, the property owners
attempted to increase their award of severance damages by
requesting that the fact finder calculate severance damages
only as to two small strips of the property directly adjacent to
the area of the taking. These strips of land were not “platted,
marked, or naturally divided in any way,” and the remainder
damages claimed by the landowners appeared to stem only
from the fact that adjoining land was taken and not a loss of
available resources or access. Id. at 762, 127 N.W.2d at 302.
The property owners objected to the condemnor’s evidence
that the taking—used to build a highway—actually increased
the property’s value as a whole. The Nebraska Supreme court
held that the evidence regarding the overall benefit was rele-
vant and admissible.
We distinguish Frank because it is inapposite to the instant
case for two reasons. First, we have already determined that
evidence of damages calculated using the “subdivision” method
of valuation is admissible in the instant case and thus, unlike
Frank, a per-lot assessment of severance damages is admis-
sible. Second, neither party has claimed that anything other
than the loss of access—which affects only a portion of Diers’
property—impacts the value of the remaining property. clearly,
the loss of access does not affect those portions of the property
that did not rely upon the access taken by the State.
(b) hassebrook’s Valuation Testimony
The State argues that the district court erred in exclud-
ing hassebrook’s expert testimony regarding his January 16,
2003, appraisal of Diers’ property. hassebrook appraised 350
acres of Diers’ property, including the property at issue, on a
per-acre basis for tax purposes. in an offer of proof, the State
indicated that he would have valued Diers’ land at $25,000 per
574 	17 NEbRASKA AppEllATE REpORTS

acre. The trial court excluded hassebrook’s testimony based on
its determination that the testimony was not relevant, because
hassebrook could not link his appraisal to the value of Diers’
property as of the date of the taking and that it was “too remote
in time.” hassebrook had not updated his appraisal to reflect
sales that occurred after the appraisal.
Additionally, hassebrook did not know the status of Diers’
plans to develop the property. hassebrook admitted that he had
no information regarding development plans and that had he
been aware of “real detailed plans ready for development” or
“information that [the property is] ready to develop,” he would
have valued the property using a different method.
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. Sturzenegger v. Father Flanagan’s Boys’
Home, 276 Neb. 327, 754 N.W.2d 406 (2008). Under these
circumstances, the trial court did not abuse its discretion in
determining that hassebrook’s appraisal was not relevant. The
appraisal failed to account for factors relevant to property
value. After hassebrook finished his appraisal, the surround-
ing property continued to develop and change, and hassebrook
did not purport to account for these changes. Also, hassebrook
failed to account for the fact that Diers was in fact developing
the property.
(c) charles’ Valuation Testimony
The State argues that the district court abused its discretion
in overruling its foundation objections to charles’ testimony on
the sale prices of developed lots on the northern 125 acres of
Diers’ property. The sales to which charles testified occurred
both before and after September 28, 2004—the most recent of
which was pending at the time of trial.
[11,12] Generally, evidence as to the sale of comparable
property is admissible as evidence of market value, provided
there is adequate foundation to show the evidence is material
and relevant. Liberty Dev. Corp. v. Metropolitan Util. Dist.,
276 Neb. 23, 751 N.W.2d 608 (2008). The foundation evidence
should show the time of the sale, the similarity or dissimilarity
WAlTER c. DiERS pARTNERShip v. STATE 	575
cite as 17 Neb. App. 561

of market conditions, the circumstances surrounding the sale,
and other relevant factors affecting the market conditions at
the time. Id. Whether properties, the subject of other sales, are
sufficiently similar to the property condemned to have some
bearing on the value under consideration, and to be of aid to
the jury, must necessarily rest largely in the sound discretion of
the trial court. Id.
We have reviewed the record and determined that the foun-
dational requirements were fulfilled. charles personally testi-
fied to the time of the sale, the location of the property, and
any conditions that affected the sale price. charles and other
witnesses testified to the condition of the market—that dur-
ing the entire time period, the land in this area was selling
well because the area was being commercially developed.
because the foundational requirements were fulfilled, we find
that the district court did not abuse its discretion in allowing
charles to testify to the sale price of other lots in the northern
125 acres.
2. D iers’ C ross -aPPeal
[13] in its cross-appeal, Diers assigns that the district court
erred in failing to award Diers interest on the judgment as
required by § 76-711. Section 76-711 provides that the con-
demnee is to receive interest as follows:
if an appeal is taken from the award of the appraisers
by the condemnee and the condemnee obtains a greater
amount than that allowed by the appraisers, the con-
demnee shall be entitled to interest from the date of the
deposit at the rate provided in section 45-104.02, as such
rate may from time to time be adjusted, compounded
annually, on the amount finally allowed, less interest at
the same rate on the amount withdrawn or on the amount
which the condemner offers to stipulate for withdrawal as
provided by section 76-719.01.
pursuant to this section, if a property owner appeals the county
court’s award to the district court, interest begins to accrue
when the condemnor deposits the amount of the award.
[14] We first address the State’s argument that Diers failed
to preserve this issue for appellate review. Ordinarily, an
576 	17 NEbRASKA AppEllATE REpORTS

appellate court will not consider an issue on appeal that was
not presented to or passed upon by the trial court. Walsh v.
State, 276 Neb. 1034, 759 N.W.2d 100 (2009). however, in
the instant case, Diers had no opportunity to raise this issue
prior to entry of the final judgment. The omission occurred
in the entry of the judgment itself. While Diers may have had
another remedy in the form of a motion to alter or amend
the judgment pursuant to Neb. Rev. Stat. § 25-1329 (Reissue
2008), the State has provided no authority for the proposition
that the failure to file such a motion precludes raising the
omission on appeal. We reject the State’s argument and, thus,
address the cross-appeal.
We note that Diers did not request interest in the prayer
of its petition filed with the district court. however, pursu-
ant to Thacker v. State, 193 Neb. 817, 821, 229 N.W.2d 197,
201 (1975), whether Diers is entitled to interest “rests upon
[§] 76-711 . . . and not upon the prayer of the petition.”
pursuant to § 76-711, Diers is entitled to interest in the pre-
scribed amount, because it received a larger judgment in dis-
trict court than was awarded by the appraisers in county court
and we find merit in Diers’ cross-appeal. We therefore remand
to the district court with directions to modify the judgment to
include the interest required by § 76-711.
We recognize that in some circumstances, judgments are
deemed to include statutorily mandated interest even though
the judgment does not explicitly mention interest. See, Sherard
v. State, 244 Neb. 743, 509 N.W.2d 194 (1993); Stuart v.
Burcham, 62 Neb. 84, 86 N.W. 898 (1901). however, we
believe that the better practice is for the district court to include
an explicit award of interest where the statute mandates interest
as part of the relief to be granted. This ensures that parties can
fulfill the obligations of a judgment without the necessity of
further proceedings.
Vi. cONclUSiON
because we find that the district court did not abuse its dis-
cretion in admitting See’s or charles’ valuation testimony, or in
excluding hassebrook’s prior appraisal, we find no merit in the
State’s assignments of error on appeal. On Diers’ cross-appeal,
WAlTER c. DiERS pARTNERShip v. STATE 	577
cite as 17 Neb. App. 561

we conclude that Diers was entitled to interest pursuant to
§ 76-711. We therefore affirm the judgment of the district court
and remand with directions to modify the judgment to expressly
award Diers interest pursuant to § 76-711.
affirmeD anD remanDeD With DireCtions.
elkhorn riDge golf PartnershiP, a nebraska general
PartnershiP, et al ., aPPellants anD Cross -aPPellees ,
v. miC-Car , inC., a nebraska CorPoration,
anD Carville buttner , aPPellees
anD Cross -aPPellants.
767 N.W.2d 518
Filed May 5, 2009. 	No. A-08-1076.
1. Actions: Restrictive Covenants: Equity. An action to enjoin a breach of restric-
tive use covenants is equitable in nature.
2. Equity: Appeal and Error. in an appeal of an equitable action, an appellate
court tries factual questions de novo on the record and reaches a conclusion
independent of the findings of the trial court, provided, where credible evidence
is in conflict on a material issue of fact, the appellate court considers and may
give weight to the fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.
3. Rules of Evidence: Appeal and Error. in proceedings where the Nebraska
Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make such
discretion a factor in determining admissibility. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the trial court,
the admissibility of evidence is reviewed for an abuse of discretion.
4. 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.
5. Restrictive Covenants: Injunction: Proof. Where there has been a breach of a
restrictive covenant, it is not necessary to prove that the injury will be irreparable
in order to obtain injunctive relief.
6. Restrictive Covenants: Injunction: Damages. it is a well-defined exception to
the general rule requiring a showing of actual and substantial injury as a basis for
entitlement to injunctive relief, that, where one who has entered into a restrictive
covenant as to the use of the land commits a distinct breach thereof, he may be
enjoined irrespective of the amount of damage caused by his breach, and even if
there appears to be no substantial monetary damage.
7. Restrictive Covenants. A restrictive covenant is to be construed in connection
with the surrounding circumstances, which the parties are supposed to have had
578 	17 NEbRASKA AppEllATE REpORTS