State v. Epting

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.
Wear v. State of Nebraska, supra, citing Langfeld v. Department
of Roads, 23 neb. 5, 328 n.W.2d 452 (982).
okoruwa’s opinions lacked sufficient foundation, and the
district court abused its discretion in admitting okoruwa’s
testimony. except for Lot , which had an additional 50-foot
easement, the permanent easements were 20 to 25 feet in width
on each lot and totaled .486 acres. the temporary construc-
tion easements were 20 to 30 feet in width and totaled an
additional .654 acres. okoruwa’s conclusion that the ease-
ments changed the highest and best use of the property from
residential to recreational was without sufficient foundation.
his testimony as to Liberty’s damages was therefore specula-
tive and conjectural.
Vii. concLusion
the order of the court of appeals that dismissed the appeal is
reversed. the trial court erred in admitting okoruwa’s testimony.
We therefore reverse the judgment and remand the cause for a
new trial. Liberty’s motion for attorney fees is denied, and its
cross-appeal is dismissed.
reverSeD aND reMaNDeD for a New trIal .
S tate of N ebraSka , appellee aND CroSS- appellaNt , v .
J ohN C. eptINg , S r ., appellaNt aND CroSS- appellee .
75 n.W.2d 66
filed July 3, 2008. 	no. s-07-886.
. Statutes: Appeal and Error. statutory interpretation presents a question of
law, and an appellate court resolves such issues independently of the lower
court’s conclusions.
appeal 	from 	the 	district 	court 	for 	Lincoln 	county:
J ohN p. M urphy, Judge. reversed and remanded for further
proceedings.
state v. eptinG 	37
cite as 276 neb. 37
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

patrick 	b. 	hays, 	Lincoln 	county 	public 	defender, 	for
appellant.
Jon bruning, attorney General, and George r. Love for
appellee.
heavICaN, 	C.J., 	wrIght , 	C oNNolly , 	gerrarD, 	S tephaN,
MCC orMaCk , and MIller -lerMaN, JJ.
wrIght , J.
nature of case
this case is before the court styled as a new direct appeal
arising from a motion for postconviction relief. Without con-
ducting an evidentiary hearing, the district court for Lincoln
county entered an order granting John c. epting, sr., a new
direct appeal. We conclude that the district court erred in order-
ing postconviction relief.
scope of reVieW
[] the dispositive procedural issues presented by the state’s
cross-appeal arise under the nebraska postconviction act, neb.
rev. stat. §§ 29-300 to 29-3004 (reissue 995). statutory
interpretation presents a question of law, and an appellate court
resolves such issues independently of the lower court’s conclu-
sions. State v. Jim, 275 neb. 48, 747 n.W.2d 40 (2008).
facts
on december 9, 2005, an information was filed in the
district court for Lincoln county, charging epting with second
degree murder and use of a deadly weapon to commit a felony.
epting subsequently entered a plea of no contest to an amended
information charging him with manslaughter and first degree
assault. the court sentenced epting to a term of imprisonment
of 5 to 20 years for his manslaughter conviction and a term of
0 to 20 years for his first degree assault conviction.
epting, acting pro se, filed a verified motion for postconvic-
tion relief, alleging that his “trial counsel did not file a notice
of appeal nor advise his client that an appeal could be taken
form [sic] the pleading proceeding and conviction.” on July
7, 2007, the district court, without conducting an evidentiary
38 	276 nebraska reports

hearing, entered an order finding that “based on the allegations
contained in the motion[,] there may have been a denial of the
right to counsel on a direct appeal.” it granted epting relief in
the form of a new direct appeal. epting subsequently filed this
appeal on august 5.
the state filed a praecipe for a bill of exceptions and a tran-
script for any proceedings or filings on or after July 9, 2007,
the date epting filed his motion for postconviction relief. the
court reporter certified that no record of any proceedings or fil-
ings was made on the dates specified, other than epting’s July 9
motion and the district court’s July 7 order.
assiGnments of error
epting proceeds as if he were before this court on a direct
appeal. on cross-appeal, the state claims the district court erred
in granting postconviction relief without first conducting an
evidentiary hearing and making findings of fact and conclusions
of law.
anaLYsis
the issue is whether a district court may grant postconviction
relief without first conducting a hearing. We have previously
determined this issue in State v. Jim, supra, where we set forth
the procedural requirements that the parties and the court must
follow under the nebraska postconviction act. “unless the
motion and the files and records of the case show . . . that the
prisoner is entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues[,] and make findings of
fact and conclusions of law with respect thereto.” § 29-300. see
State v. Jim, supra.
the record includes the bill of exceptions from epting’s
trial but none from an evidentiary hearing before the district
court regarding postconviction. We have only epting’s verified
motion for postconviction relief and the district court’s order in
the postconviction record granting a new direct appeal. because
there was no evidentiary hearing as required, we cannot conduct
a meaningful review of the postconviction proceedings before
the district court.
if the district court grants an evidentiary hearing in a post-
conviction proceeding, it is obligated to determine the issues
state v. eptinG 	39
cite as 276 neb. 37

and make findings of fact and conclusions of law with respect
thereto. State v. Jim, 275 neb. 48, 747 n.W.2d 40 (2008).
concLusion
the district court erred in granting epting a new direct appeal
without holding an evidentiary hearing. this is not permitted by
the nebraska postconviction act and constitutes reversible error.
thus, we reverse the judgment of the district court and remand
the cause for further proceedings.
reverSeD aND reMaNDeD for
further proCeeDINgS.
D aNIel J. NIeMoller , appellaNt , v .
CIty of papIllIoN, appellee .
752 n.W.2d 32
filed July 3, 2008. 	no. s-07-893.
. Statutes: Appeal and Error. statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
2. Statutes. statutory language is to be given its plain and ordinary meaning.
3. Statutes: Appeal and Error. an appellate court will not resort to interpre-
tation to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
4. Statutes. a court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
5. Constitutional Law: Appeal and Error. a constitutional issue not presented to or
passed upon by the trial court is not appropriate for consideration on appeal.
appeal from the district court for sarpy county: wIllIaM b.
zaStera, Judge. affirmed.
Leanne a. Gifford, of scheldrup, blades, schrock, sand &
aranza, p.c., for appellant.
michaelle L. baumert and monica k. hoppe, of husch,
blackwell & sanders, L.L.p., for appellee.
heavICaN, 	c.J., 	wrIght, 	C oNNolly, 	gerrarD, 	S tephaN,
MCC orMaCk, and MIller -lerMaN, JJ.
40 	276 nebraska reports