American Central City v. Joint Antelope Valley Auth.

A mericAn centrAl city, inc., A nebrAskA corporAtion,
AppellAnt, v. Joint A ntelope vAlley Authority
(JAvA), A Joint AdministrAtive entity, And
city of lincoln, nebrAskA, A municipAl
corporAtion, Appellees.
A mericAn centrAl city, inc., A nebrAskA corporAtion,
AppellAnt, v. Joint A ntelope vAlley Authority
(JAvA), A Joint AdministrAtive entity, Appellee .
807 N.W.2d 170
Filed June 17, 2011. 	Nos. S-10-646, S-10-647.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting 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 those facts and that the moving party is
entitled to judgment as a matter of law.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
3. Rules of Evidence. 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 discretion a factor in determin-
ing admissibility.
4. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
5. Zoning. The mere issuance of a permit to use land gives no vested rights to the
permittee, nor does he or she acquire a property right in the permit.
6. Contracts: Specific Performance: Fraud. An oral contract to buy land falls
under the statute of frauds. Despite the statute of frauds, an oral contract may be
specifically enforced in cases of part performance.
7. Contracts: Specific Performance: Real Estate: Proof. A party seeking specific
performance of an oral contract for the sale of real estate upon the basis of part
performance must prove an oral contract, the terms of which are clear, satisfac-
tory, and unequivocal, and that the acts done in part performance were referable
solely to the contract sought to be enforced, and not such as might be referable
to some other or different contract, and further that nonperformance by the other
party would amount to a fraud upon the party seeking specific performance.
8. Trial: Expert Witnesses. It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to give his or her
opinion about an issue in question.
742 	281 NEbRASkA REpoRTS
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www.nebraska.gov/apps-courts-epub/
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9. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving
or excluding an expert’s opinion which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
10. Eminent Domain: Witnesses. An owner who is shown to be familiar with the
value of his or her land shall be qualified to estimate the value of such land for
the use to which it is then being put, without additional foundation. Such owner
is not qualified by virtue of ownership alone to testify as to its value for other
purposes unless such owner possesses, as must any other witness as to value, an
acquaintance with the property and is informed as to the state of the market.
11. Damages: Proof. A plaintiff’s burden to prove the nature and amount of its dam-
ages cannot be sustained by evidence which is speculative and conjectural.
12. 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.
13. Eminent Domain: Evidence: Damages. Evidence of the price at which other
lands have been sold is admissible in evidence in condemnation proceedings on
the question of damages where such evidence is predicated upon sufficient foun-
dation to furnish a criterion for market or going value of the land condemned.
Such land must be similar or similarly situated to the land condemned and to
have been sold at about the same time as the taking in the condemnation action,
especially when the price paid depends upon the market or going value rather
than other considerations.
14. Trial: Evidence: Appeal and Error. The admission of demonstrative evidence
is within the discretion of the trial court, and a judgment will not be reversed on
account of the admission or rejection of such evidence unless there has been a
clear abuse of discretion.
15. Constitutional Law: Due Process: Property. Under Neb. Const. art. I, § 3, the
state cannot deprive any person of life, liberty, or property without due process
of law. The protections of this procedural due process right attach when there has
been a deprivation of a significant property interest.
16. Constitutional Law: Due Process: Property: Notice. If a significant property
interest is shown, due process requires notice and an opportunity to be heard that
is appropriate to the case.
17. Motions to Dismiss: Directed Verdict. A motion to dismiss at the close of all the
evidence has the same legal effect as a motion for directed verdict.
18. Motions to Dismiss. A party against whom a motion to dismiss is directed is
entitled to have all relevant evidence accepted or treated as true, every con-
troverted fact as favorably resolved, and every beneficial inference reasonably
deducible from the evidence.
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	743
Cite as 281 Neb. 742

19. Trial: Evidence: Directed Verdict: Motions to Dismiss: Words and Phrases.
A “prima facie case” means that evidence sufficiently establishes elements of a
cause of action and, notwithstanding a motion for a directed verdict in a jury trial
or a motion to dismiss in a nonjury trial, allows submission of the case to the fact
finder for disposition.
Appeals from the District Court for lancaster County:
robert r. otte, Judge. Affirmed.
barbara J. morley for appellant.
Rodney Confer, lincoln City Attorney, and Christoper J.
Connolly for appellees.
heAvicAn, c.J., connolly, G errArd, stephAn, mccormAck,
and miller-lermAn, JJ.
heAvicAn, C.J.
I. INTRoDUCTIoN
American Central City, Inc. (ACC), appeals from two sepa-
rate decisions of the lancaster County District Court. The
cases were consolidated before this court for oral argument
and disposition, and both cases involve complaints regard-
ing the condemnation of three properties located in lincoln,
Nebraska. In case No. S-10-646, a civil suit for damages apart
from the condemnation award, ACC claims that it had com-
pensable property interests for which it was not paid when
the Joint Antelope valley Authority (JAvA) and the City of
lincoln (the City) took its land through condemnation. In
case No. S-10-647, an appeal from the condemnation award,
ACC alleges that it did not receive adequate compensation for
its land. We affirm the decision of the district court granting
JAvA’s motion for summary judgment in the civil suit and
granting JAvA’s motion to dismiss in ACC’s appeal from the
condemnation award.
II. FACTS
Edward h. patterson is the owner and sole shareholder of
ACC, and for simplicity, we will hereinafter refer to the appel-
lant as “patterson” rather than “ACC.” The current cases involve
three properties in lincoln owned by patterson: 2041 and 2047
S Street and 2100 Q Street. In addition, patterson claims that
744 	281 NEbRASkA REpoRTS

he held a compensable property interest in properties owned by
Edward and Dorothy Schwartzkopf (Schwartzkopf properties),
which properties were located in the same neighborhood. The
properties on Q and S Streets and the Schwartzkopf properties
are all near the city campus of the University of Nebraska-
lincoln (UNl), between 19th and 22d Streets east and west,
and between Q and S Streets north and south. patterson’s
properties and the Schwartzkopf properties were eventually
condemned as part of the Antelope valley project. The project
was designed and implemented to provide lincoln with flood
control, transportation improvement, and community revitaliza-
tion. The two cases before us originally involved three separate
cases filed in the district court, the first of which we discuss
only briefly to give the reader a complete procedural history of
the proceedings in the district court.
1. cAse no. ci04-4604: inJunction
patterson and other parties filed an action for an injunc-
tion in the lancaster County District Court under case No.
CI04-4604 in December 2004. They requested an injunction
against JAvA and the City to prevent the condemnation of their
properties, but it was denied. In that same case, the parties
also claimed that their properties were taken for an improper
nonpublic purpose and that there was no proper neighborhood
redevelopment plan. This action was earlier consolidated with
the two cases currently on appeal, but it has not been appealed
and is not now before us.
2. cAse no. ci05-3468: condemnAtion
AwArd Action
After the injunction was denied, JAvA filed a condemnation
petition with the lancaster County Court seeking to acquire
patterson’s properties on Q and S Streets. The lancaster
County board of Appraisers returned to patterson an award
totaling $128,750 for all the properties. patterson appealed to
the district court from that award, claiming inaccurate valu-
ation, failure to negotiate in good faith on the part of JAvA,
excessive taking, and taking for an improper purpose. patterson
claimed damages of $350,000. All but two claims in this
action were disposed of through an “order on partial Summary
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	745
Cite as 281 Neb. 742

Judgment” filed November 30, 2009. A trial was held on the
remaining claims. At the close of patterson’s case, JAvA made
a motion to dismiss, which the district court subsequently
granted. patterson appealed, and this case is before us now as
case No. S-10-647.
3. cAse no. ci08-1164: civil
suit for dAmAGes
In march 2008, patterson also filed a third action to recover
damages arising out of the condemnation proceedings. patterson
made claims against JAvA and the City for “inverse condemna-
tion,” violation of substantive due process rights, and recoup-
ment of costs associated with the renovation of patterson’s
properties on Q and S Streets. In the same suit, patterson also
claimed a property interest in the Schwartzkopf properties and
in a building permit he claims was denied. JAvA filed a motion
for summary judgment, which was granted. patterson appealed,
and this case is before us now as case No. S-10-646.
4. further proceedinGs And A ppeAls
All three cases were consolidated after the civil suit was
filed. The district court’s “order on partial Summary Judgment”
was entered on November 30, 2009, disposing of all claims in
the injunction action, all claims in the civil suit, and all but two
claims in the condemnation award action.
A bench trial was held on the remaining issues in the con-
demnation award action on march 18 and 19, 2010. After
patterson rested his case, JAvA made a motion to dismiss. The
district court later granted that motion and found for JAvA.
patterson appealed. other facts pertaining to the two cases will
be discussed as needed in the analysis section.
III. ASSIGNmENTS oF ERRoR
In the civil suit for damages, patterson assigns, consolidated
and restated, that the district court erred in (1) granting JAvA’s
motion for summary judgment, (2) finding that patterson did
not have a compensable property interest in a building permit,
(3) finding that patterson did not have a property interest in his
contract with the Schwartzkopfs, and (4) finding that there was
no “inverse condemnation” or condemnation blight.
746 	281 NEbRASkA REpoRTS

In the condemnation award action, patterson assigns that
the district court erred in (1) not granting patterson the right
to a full trial, (2) not permitting patterson to testify to the
“highest and best Use” of the properties taken, (3) not allow-
ing patterson to value his land using comparable sales of prop-
erties, (4) not allowing patterson to use the City Web site to
show aerial photographs, (5) not allowing patterson to value
the removable structures on the condemned land as an element
of fair market value, and (6) not permitting patterson to proffer
evidence of “value-depressing actions” by JAvA and the City
to decrease the true market value of his land.
Iv. STANDARD oF REvIEW
[1] An appellate court will affirm a lower court’s granting
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 those
facts and that the moving party is entitled to judgment as a
matter of law.1
[2] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.2
[3] 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 discretion a factor in determining admissibility.3
v. ANAlySIS
1. cAse no. s-10-646: civil
suit for dAmAGes
In the appeal from the dismissal of his civil suit, patterson
assigns that he had a property interest in a building permit that
the City denied, that he had a property interest in the contract
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
2 Sinsel v. Olsen, 279 Neb. 38, 777 N.W.2d 54 (2009).
3 Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	747
Cite as 281 Neb. 742

to buy the Schwartzkopf properties, and that JAvA engaged in
“inverse condemnation.”
(a) patterson Did Not have property Interest
in building permit
patterson first argues that he had a property interest in a
building permit he sought to obtain. he claims that he spent
considerable time and money designing a building that would
sit on the land he owned as well as on the Schwartzkopf prop-
erties. patterson also claims that city officials informed him
he could not build underground parking or place underground
telecommunications in a flood plain and that hence, it would
be futile to apply for a building permit for the Schwartzkopf
properties. patterson argues that because city officials told him
it would be futile to apply for a building permit, his substantive
due process rights were affected. he also argues that because
of the allegedly false statement city officials made regarding
building underground parking, he could not fulfill the contract
with the Schwartzkopfs, and that he was prevented from going
forward with his plans. patterson also claims that if a build-
ing plan is code compliant, the City cannot refuse to issue
a permit.
[4] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence.4 The record establishes that patterson had a building
design that both patterson and his architect believed met the
building codes. patterson spoke to city officials who informed
him that he could not build underground parking or place tele-
communications in a flood plain, but according to patterson,
that information was in error. Without a building permit,
patterson could not continue with his plans to acquire the
Schwartzkopf properties.
[5] The record is devoid of any evidence that patterson ever
applied for a building permit, however. We have stated before
that “[t]he mere issuance of a permit gives no vested rights to
4 Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 745 N.W.2d 291
(2008).
748 	281 NEbRASkA REpoRTS

the permittee nor does he [or she] acquire a property right in
the permit.”5 If a person has no property interest in a building
permit that has been granted, he or she cannot claim a property
interest in a permit that was never granted and for which he
or she never applied. patterson’s first assignment of error is
without merit.
(b) patterson Did Not have property Interest
in Schwartzkopf properties
patterson also claims that he had a compensable property
interest in the contract he had with the Schwartzkopfs to buy
their properties. The record reflects that patterson entered
into a contract to purchase the Schwartzkopf properties in
may 1995, contingent upon patterson’s obtaining a building
permit. After patterson failed to obtain a permit, all parties
signed a release excusing them from performance on the con-
tract. In 2004, the Schwartzkopf properties were sold to JAvA.
patterson claimed that he had a continuing oral agreement to
buy the Schwartzkopf properties after the release was signed
in 1995.
The district court found that there was no compensable
interest in the contract because it would not be enforceable
in a court of law. Neb. Rev. Stat. § 36-103 (Reissue 2008),
Nebraska’s statute of frauds applicable to the sale of an interest
in land, provides:
No estate or interest in land, other than leases for a
term of one year from the making thereof, nor any trust or
power over or concerning lands, or in any manner relat-
ing thereto, shall hereafter be created, granted, assigned,
surrendered, or declared, unless by operation of law, or
by deed of conveyance in writing, subscribed by the party
creating, granting, assigning, surrendering or declaring
the same.
[6,7] An oral contract to buy land falls under the statute of
frauds. Despite the statute of frauds, however, an oral contract
may be specifically enforced in cases of part performance.6
5 County of Saunders v. Moore, 182 Neb. 377, 383, 155 N.W.2d 317, 321
(1967).
6 Sayer v. Bowley, 243 Neb. 801, 503 N.W.2d 166 (1993).
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	749
Cite as 281 Neb. 742

A party seeking specific performance of an oral contract for
the sale of real estate upon the basis of part performance
must prove an oral contract, the terms of which are clear,
satisfactory, and unequivocal, and that the acts done in part
performance were referable solely to the contract sought to
be enforced, and not such as might be referable to some other
or different contract, and further that nonperformance by the
other party would amount to a fraud upon the party seeking
specific performance.7
by patterson’s account, he invested considerable time and
expense in designing the structure that he wanted to build on
the Schwartzkopf properties. he argues that this expense con-
stituted part performance on the contract and that therefore,
the oral contract falls within the exception to the statute of
frauds.8 patterson’s written contract to buy the Schwartzkopf
properties was contingent upon obtaining the building permit,
but that written contract ended when both parties signed the
release excusing performance. patterson’s alleged oral contract
gave him the right to buy the properties if he could procure a
building permit. but, as the party who was to benefit from the
contractual right to buy the Schwartzkopf properties, patterson
cannot exercise that right against JAvA or the City.9 Any con-
tractual right patterson may have had would be against the
Schwartzkopfs. Even assuming that patterson had a suit in
equity for specific enforcement against the Schwartzkopfs, he
cannot claim a property interest against JAvA and the City for
properties he did not own. patterson’s second assignment of
error in this case is without merit.
(c) There Was No Evidence of
Inverse Condemnation
patterson’s final assignment of error in this case is that JAvA
engaged in inverse condemnation. “Inverse condemnation” is
7 Reifenrath v. Hansen, 190 Neb. 58, 206 N.W.2d 42 (1973).
8 See Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593
(1938).
9 See Burnison v. Johnston, 277 Neb. 622, 764 N.W.2d 96 (2009).
750 	281 NEbRASkA REpoRTS

shorthand for a governmental taking of a landowner’s property
without the benefit of condemnation proceedings.10 patterson’s
claim rests partially on the recognition that he had a property
interest in the Schwartzkopf properties and in a building per-
mit. As noted above, however, patterson has failed to state a
claim in those respects.
patterson also claims that JAvA prevented him from putting
his S Street properties to their “highest and best use” between
the time he purchased them in 1995 and when they were con-
demned.11 he claims that that activity also constituted inverse
condemnation. patterson makes the allegation that JAvA, the
City, and UNl actively prevented him from developing the
three properties on Q and S Streets. patterson’s claim rests
on his assertions that JAvA and the City acted in concert to
prevent him from obtaining a building permit, thus preventing
him from purchasing the Schwartzkopf properties, which in
turn prevented him from developing his properties on Q and
S Streets.
In support of this argument, patterson presented the “Radial
Reuse malone Study Area Redevelopment plan,” which he
claims demonstrates that UNl had plans to use that area for
its own expansion and development. The redevelopment plan
is dated 1989, and the plan covers the “sixteen blocks in the
western portion of the malone Neighborhood, bounded by 19th
Street on the west, 23rd Street on the east, vine Street on the
north, and Q Street on the south.” patterson claims the map
attached to the redevelopment study showed that his land had
been “de facto deeded over to UNl.”12 The record is devoid of
any evidence that UNl exercised control over these properties,
however, or that UNl put these properties to use. patterson
has not alleged sufficient facts to establish a genuine issue of
material fact as to whether JAvA and the City prevented him
from developing the land. patterson’s final assignment of error
is without merit.
10 Strom v. City of Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998).
11 brief for appellant in case No. S-10-646 at 19.
12 Id. at 20.
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	751
Cite as 281 Neb. 742

2. cAse no. s-10-647: condemnAtion
AwArd Action
In his second appeal, patterson alleges six assignments of
error. Generally speaking, patterson argues that the three lots
were inaccurately valued and that he was prevented from offer-
ing evidence to demonstrate that fact. patterson also claims
that he was not given a “full trial,” but in fact the trial court
granted JAvA’s motion to dismiss at the close of patterson’s
case. JAvA claims that by not assigning as error the district
court’s decision to grant the motion to dismiss, patterson has
admitted that he did not establish a prima facie case. however,
we read patterson’s claim broadly enough to encompass an
argument that the district court erred in granting the motion
to dismiss.
(a) Trial Court Did Not Err When It Excluded
patterson’s Testimony as to highest
and best Use of his land
We first address patterson’s claim that the trial court erred
by not allowing him to testify as an expert as to the highest
and best use of his properties. Essentially, patterson argues
that he was an expert by virtue of his experience and educa-
tion and that he had originally purchased the land with the
intention of developing it. patterson argues that he should have
been allowed to give expert testimony that the highest and best
use of his properties was for development purposes and that
the land should be considered as a whole rather than as indi-
vidual parcels.
[8,9] It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness
to give his or her opinion about an issue in question.13 A trial
court’s ruling in receiving or excluding an expert’s opinion
which is otherwise relevant will be reversed only when there
has been an abuse of discretion.14
13 Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751 N.W.2d
608 (2008).
14 Id.
752 	281 NEbRASkA REpoRTS

[10] An owner who is shown to be familiar with the value
of his or her land shall be qualified to estimate the value of
such land for the use to which it is then being put, without
additional foundation.15 Such owner is not qualified by virtue
of ownership alone to testify as to its value for other purposes
unless such owner possesses, as must any other witness as to
value, an acquaintance with the property and is informed as to
the state of the market.16
The record demonstrates that the trial court allowed patterson
to testify extensively as to his intentions for the properties,
and there is no question that patterson had hoped to assemble
land for development purposes. The trial court also allowed
patterson to testify extensively as to the remodeling and resto-
ration he had done. but the trial court determined that patterson
was testifying as an owner, not as an expert.
Although patterson did have some experience in buying
and developing land, he did not establish sufficient foundation
to testify as an expert. patterson stated that he had a master’s
degree in finance and that he had served with various neigh-
borhood improvement organizations. patterson further testified
that he had spent a lot of time reading case law, but that he was
not a licensed real estate broker or appraiser.
The trial court did not abuse its discretion by allowing
patterson to testify as an owner but not as an expert. patterson
did not offer any evidence other than his own plans for the
properties to support his contention that the properties should
be considered as a whole rather than as individual parcels.
patterson’s first assignment of error is without merit.
(b) Trial Court Did Not Err by Not Allowing
patterson to value his land Using
Comparable Sales of properties
patterson also argues that the trial court erred when it
refused to allow him to present testimony as to comparable
15 See Langfeld v. Department of Roads, 213 Neb. 15, 328 N.W.2d 452
(1982).
16 See id.
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	753
Cite as 281 Neb. 742

sales in the area. During the trial, patterson introduced an
exhibit entitled “liberty village land Assembly” in order to
testify that the highest and best use would be comparable to an
earlier neighborhood redevelopment project. JAvA objected on
the basis of foundation. patterson testified that he was familiar
with liberty village because he lived across the street from it
and that he had estimated the demolition and construction costs
for liberty village. other than his estimates and speculation as
to the worth of liberty village, patterson could offer no other
evidence of comparable sales.
[11,12] It is fundamental that a plaintiff’s burden to prove
the nature and amount of its damages cannot be sustained by
evidence which is speculative and conjectural.17 There are three
generally accepted approaches used for the purpose of valu-
ing 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. 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.18
[13] When using the comparable sales method, it is well set-
tled that evidence of the price at which other lands have been
sold is admissible in evidence in condemnation proceedings
on the question of damages where such evidence is predicated
upon sufficient foundation to furnish a criterion for market
or going value of the land condemned. however, it is equally
clear that such land must be similar or similarly situated to the
land condemned and to have been sold at about the same time
as the taking in the condemnation action, especially when the
17 Liberty Dev. Corp., supra note 13.
18 Id.
754 	281 NEbRASkA REpoRTS

price paid depends upon the market or going value rather than
other considerations.19
We dealt with this issue in Patterson v. City of Lincoln,20
which involved the condemnation of other properties owned by
patterson. We addressed patterson’s argument that an alternate
means of valuation should be used. In that case, we said:
We have stated that in eminent domain proceedings,
where the sales prices of other tracts are offered as evi-
dence of market value of the tract taken, a wide discretion
must be granted the trial judge in determining the admis-
sibility of the evidence of the other sales. The evidence
should not be admitted where there is a marked difference
in the situations of the properties. [Citations omitted.]
Whether the properties the subject of other sales are suf-
ficiently similar to the property condemned to have some
bearing on the value under consideration, and to be of any
aid to the jury, must necessarily rest largely in the discre-
tion of the trial court, which will not be interfered with
unless abused. The exact limits, either of similarity or
difference, or of nearness or remoteness in point of time,
depend upon the location and character of the properties
and the circumstances of the case.21
patterson did not offer any evidence of comparable land
sales, other than his speculations as to the liberty village
redevelopment project. And, as the district court noted, liberty
village 	was 	a 	multifamily, 	multibuilding 	complex, 	while
patterson’s properties were individual parcels suited for single-
family use.
The district court also noted that patterson testified exten-
sively as to what he had spent in restoration and remodeling.
The district court noted that an estimation of expenses for
renovations is not one of the accepted methods of valuation in
condemnation proceedings. moreover, other than patterson’s
testimony wherein he speculated as to how much he had spent
19 See Langfeld, supra note 15.
20 Patterson v. City of Lincoln, 250 Neb. 382, 550 N.W.2d 650 (1996).
21 Id. at 387-88, 550 N.W.2d at 654.
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Cite as 281 Neb. 742

in restoration, he presented no evidence as to how much had
actually been spent. This assignment of error is also with-
out merit.
(c) Trial Court Did Not Err When It Refused
to Admit Aerial photographs
[14] patterson next claims that the district court erred when
it refused to admit aerial photographs from the “interactive
GIS property database website maintained by the [C]ity.”22
During the trial, patterson attempted to use a “GIS map” to
demonstrate the location of the S Street properties, apparently
to demonstrate the relative location of liberty village and the
superior location of patterson’s properties. The admission of
demonstrative evidence is within the discretion of the trial
court, and a judgment will not be reversed on account of the
admission or rejection of such evidence unless there has been a
clear abuse of discretion.23
The trial court refused to admit the “GIS map” because it
could not be printed from the Internet and copies could not
be created and preserved for the purposes of appeal. patterson
did not present copies of the images at trial, nor did he lay
foundation for when the photographs were taken. JAvA points
out that the “GIS map” does not meet the requirements for a
self-authenticating document under Neb. Rev. Stat. § 27-902
(Reissue 2008). The trial court did not abuse its discretion by
refusing to admit the maps. This assignment of error is also
without merit.
(d) Trial Court Did Not Err When It Refused
to Allow patterson to value Removable
Structures on Condemned land as
Element of Fair market value
patterson’s fourth assignment of error alleges that the trial
court erred in excluding his testimony as an expert of the
value of the structures that he claimed were removable. As
discussed above, patterson was allowed to testify as an owner,
but not as an expert, and patterson introduced no evidence of
22 brief for appellant in case No. S-10-647 at 30.
23 Benzel v. Keller Indus., 253 Neb. 20, 567 N.W.2d 552 (1997).
756 	281 NEbRASkA REpoRTS

the costs of restoration and remodeling, other than his estimate
as to the money spent on materials. The district court noted
that patterson
offer[ed] no other method by which the court could derive
at the value of the real estate (whether as raw ground
or as improved property). Certainly the lots at 2041 ‘S’
Street and 2047 ‘S’ Street had value and certainly there
had been significant improvement to those properties but
the court has no evidence that would lead it to any sort of
formulation allowed under the law. [patterson] offered no
expert opinion as to value.
patterson did not present evidence as to what the value of
those structures would be, had he removed them. And, other
than estimates as to the cost of the materials used in renova-
tion, patterson offered no evidence as to what intrinsic value
the structures might have. This assignment of error is also
without merit.
(e) Trial Court Did Not Err When It Refused
to Allow patterson to proffer Evidence
of value-Depressing Actions by JAvA
and the City to Decrease True
market value of his land
patterson next argues that JAvA and the City engaged in
value-depressing actions that resulted in decreased value for his
properties. he argues that those value-depressing actions should
be considered as an element of damages as well as a factor in
determining the date of the taking. patterson argues that there
was a significant amount of delay between the announcement
of the Antelope valley project and the condemnation of his
land and that this delay resulted in his being unable to put his
land to its highest and best use.
other than his general allegations of a conspiracy on the part
of JAvA, the City, and UNl, patterson produced no evidence
of value-depressing actions. he called no witnesses from JAvA
or the City to testify as to when the final plan for the Antelope
valley project was put into place, and patterson himself testi-
fied that he was aware that the plans had changed many times.
patterson made no offer of proof as to what exactly those
“value-depressing actions” might be. Even accepting the truth
AmERICAN CENTRAl CITy v. JoINT ANTElopE vAllEy AUTh. 	757
Cite as 281 Neb. 742

of all relevant evidence and construing the evidence in a light
most favorable to patterson, he still failed to establish a prima
facie case that his properties were undervalued or that JAvA
engaged in value-depressing actions. patterson’s final assign-
ment of error is therefore without merit.
(f) patterson Was Not Deprived of his
Due process Right to Full Trial
patterson finally argues that by sustaining JAvA’s motion
to dismiss, the district court denied him “the opportunity to
hear and cross examine JAvA’s appraiser or offer rebuttal
testimony.”24 patterson claims that this is a denial of his due
process right to a full trial. patterson seems to be arguing that
once he had presented his case, JAvA was required to go for-
ward and present its case; but he presented no legal authority
for this claim.
[15,16] Under Neb. Const. art. I, § 3, the state cannot
deprive any person of life, liberty, or property without due
process of law. The protections of this procedural due process
right attach when there has been a deprivation of a significant
property interest.25 If a significant property interest is shown,
due process requires notice and an opportunity to be heard
that is appropriate to the case.26 patterson received notice and
an opportunity to be heard, but he failed to present sufficient
evidence to overcome JAvA’s motion to dismiss.
[17-19] A motion to dismiss at the close of all the evidence
has the same legal effect as a motion for directed verdict.27 A
party against whom a motion to dismiss is directed is entitled
to have all relevant evidence accepted or treated as true, every
controverted fact as favorably resolved, and every beneficial
inference reasonably deducible from the evidence.28 A “prima
24 brief for appellant in case No. S-10-647 at 18-19.
25 Prime Realty Dev. v. City of Omaha, 258 Neb. 72, 602 N.W.2d 13 (1999).
26 Id.
27 See Brown v. Slack, 159 Neb. 142, 65 N.W.2d 382 (1954).
28 See Dale v. Thomas Funeral Home, 237 Neb. 528, 466 N.W.2d 805
(1991).
758 	281 NEbRASkA REpoRTS

facie case” means that evidence sufficiently establishes ele-
ments of a cause of action and, notwithstanding a motion for
a directed verdict in a jury trial or a motion to dismiss in a
nonjury trial, allows submission of the case to the fact finder
for disposition.29
As discussed above, patterson’s evidence consisted mostly
of speculation and accusations that JAvA and the City had
conspired against him. The only evidence adduced at trial was
patterson’s testimony that he had been remodeling the proper-
ties. patterson did not offer any other evidence that he had
developed the land, nor did he present testimony from another
appraiser. Therefore, he could not establish a prima facie case
that his land had been undervalued in the condemnation award.
Since patterson did not present sufficient evidence to establish
a prima facie case, JAvA had no obligation to go forward and
present evidence. The district court did not err in granting
JAvA’s motion to dismiss.
vI. CoNClUSIoN
In his appeal of the civil suit for damages, patterson did not
present sufficient evidence to present a genuine issue of mate-
rial fact. In the appeal from the condemnation award, patterson
did not offer sufficient evidence to establish a prima facie case.
The district court did not err in granting a summary judgment
in the civil suit or the motion to dismiss in the condemnation
award action. We therefore affirm the decision of the dis-
trict court.
A ffirmed.
wriGht, J., not participating.
29 Id.
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Cite as 281 Neb. 742