City of Waverly v. Hedrick

Finally, concerning the appellees’ cross-appeal, we conclude
that the court did not err when it denied the appellees’ request
for prejudgment interest, and we affirm such denial.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
gerrArd, J., not participating in the decision.
Wright, J., not participating.
city of WAverly, nebrAskA, Appellee , v.
richArd m. hedrick , AppellAnt.
810 N.W.2d 706
Filed March 9, 2012. 	No. S-11-333.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. Jurisdiction: Judgments: Appeal and Error. Determination of a jurisdictional
issue which does not involve a factual dispute is a matter of law which requires
an appellate court to reach its conclusions independent from a trial court.
3. Courts: Eminent Domain. The powers conferred upon the county court judge by
the condemnation statutes are not judicial powers or duties, but are instead purely
ministerial in character.
4. Eminent Domain: Words and Phrases: Appeal and Error. Only when the
appraiser’s report is appealed to the district court do condemnation proceedings
become judicial.
5. Eminent Domain: Pleadings: Statutes. The statutes relating to condemna-
tion proceedings contemplate the filing of pleadings and the framing of any
issues—other than damages to the condemnee—for the first time in the judicial
proceeding in district court.
6. Judgments: Evidence. Determination of questions of fact upon evidence, or the
exercise of discretion in ascertaining or fixing an amount to be allowed, generally
involves judicial rather than ministerial acts.
7. Eminent Domain: Liens: Interest. The existence and amount of a lien, the
amount of accrued interest, and whether there should be a setoff from the con-
demnation award involve judicial, rather than ministerial, determinations.
8. Eminent Domain: Courts: Jurisdiction. Because the eminent domain statutes
do not confer upon county courts the power to hear motions for setoff, they lack
jurisdiction to do so.
9. Eminent Domain: Courts: Jurisdiction: Appeal and Error. In condemnation
proceedings, the district court has original as well as appellate jurisdiction over
464 	283 NeBraSka repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

the subject matter and can determine matters beyond the question of the valuation
of the land or interests taken.
10. Courts: Equity: Judgments. District courts have the inherent power in the
administration of justice and, governed by the principles of equity, to order setoff
from an award or judgment.
11. Eminent Domain. The general eminent domain statutes prescribe the manner and
method by which condemnors may exercise the power of eminent domain.
12. Eminent Domain: Parties. It is generally true that failure to designate in the
petition and to make a party respondent the owner of any interest in the land
taken whose title appears of record or is otherwise ascertainable on reasonable
inquiry renders the proceedings ineffectual to transfer such interest to the con-
demning party.
13. Eminent Domain. a condemnor cannot condemn its own property interest.
14. Eminent Domain: Liens. Condemnation money stands in place of the land, and
belongs to a lienholder, to the extent of the value of the lien.
appeal 	from 	the 	District 	Court 	for 	Lancaster 	County,
robert r. otte, Judge, on appeal thereto from the County
Court for Lancaster County, susAn i. strong, Judge. Judgment
vacated in part and in part reversed, and cause remanded
with directions.
Donald J. pepperl, p.C., L.L.O., for appellant.
Mark a. Fahleson and David J.a. Bargen, of rembolt
Ludtke, L.L.p., for appellee.
heAvicAn, c.J., Wright, connolly, stephAn, mccormAck ,
and miller-lermAn, JJ.
mccormAck , J.
NaTUre OF CaSe
This case concerns a city’s preexisting lien on land even-
tually condemned and whether the city can file a motion in
either county or district court for setoff of the lien amount
from the condemnation award. The landowner argues that the
city must condemn the lien, as well as the subject property,
in order to claim the land in condemnation proceedings. The
landowner also argues that it was error for the county court
in this case to grant such a setoff, because county courts lack
jurisdiction to make judicial determinations in condemna-
tion proceedings.
CITy OF WaverLy v. heDrICk 	465
Cite as 283 Neb. 464

BaCkGrOUND
The City of Waverly, Nebraska (City), as condemnor, filed
a petition in the Lancaster County Court for appointment of
appraisers to assess damages that the condemnee, richard M.
hedrick, would sustain when the City condemned a fee simple
interest in 5.504 acres of hedrick’s land. The petition stated that
the site was selected for construction of a park, public grounds,
public emergency services buildings, a municipal maintenance
shop, and other public buildings near several recently approved
residential developments. The petition stated that the City was
unable to reach an agreement with hedrick concerning acquisi-
tion of the property. The City sent notice to hedrick, and the
county court issued an order appointing three appraisers.
On December 14, 2005, the appraisers returned a “fee tak-
ing” valuation of $86,000. This valuation was filed in county
court as a “return of appraisers” and signed by a county court
judge. In its assessment of damages, the return did not consider
any outstanding liens on the property.
On December 21, 2005, the City filed a motion in the county
court requesting that the county court deduct a preexisting
statutory lien against the property from the appraisers’ return.
according to the motion, the City had a lien which was filed
with the Lancaster County register of deeds in 2004. The lien
was in the amount of $8,500 and represented the cost the
City incurred abating a nuisance on hedrick’s property as of
March 27, 1997. hedrick never paid the lien, and it incurred
interest at the rate of 14 percent per annum, pursuant to Neb.
rev. Stat. § 45-104.01 (reissue 2010). The City alleged that
as of December 14, 2005, the lien amount, including interest,
was $18,874.12.
The county court had not yet ruled on the City’s December
21, 2005, setoff motion when, on December 29, hedrick filed
a notice of appeal to the district court on the ground that
the $86,000 valuation was inadequate. The City filed another
motion in district court to set off the statutory lien, and hedrick
filed a motion to deny the setoff.
On March 26, 2010, the district court ordered that any setoff
would be made by the county court following a jury trial in the
district court to determine the proper valuation of hedrick’s
466 	283 NeBraSka repOrTS

land. The district court explained that the county court would
address the City’s setoff motion in the course of disbursing the
condemnation proceeds. The district court accordingly found
that hedrick’s motion to deny the setoff was moot.
The jury valued the taking at $117,400, and the district court
entered judgment in favor of hedrick in that amount. On May
4, 2010, the district court further awarded hedrick interest on
the condemnation award in the amount of $37,092.07. The
district court then remanded the matter to the county court to
determine what amount of the condemnation award, if any,
should be reduced to account for the City’s lien interest.
at hearings before the county court, the City introduced an
affidavit of the city administrator, who testified as to the events
leading up to the City’s lien against hedrick. The administra-
tor further testified that as of June 4, 2010, the amount of the
lien plus interest equaled $48,029.87. The lien, as recorded,
was attached to the affidavit. The City entered into evidence
numerous additional exhibits pertaining to the validity of the
1997 lien.
hedrick argued that Nebraska law did not allow setoff.
hedrick pointed out that under Neb. rev. Stat. § 77-209
(reissue 2009), a lien is on the real estate and is not a personal
liability. according to hedrick, the City should have listed
itself as a condemnee in order to condemn the lien and make
it part of the appraisers’ valuation. Otherwise, the City’s only
remedy was to bring a separate foreclosure action on the lien.
The City responded that condemnation money stands in place
of the land and belongs to the lienholder to the extent of the
value of the lien. The City also pointed out that any right to
foreclose after condemnation was illusory because it could not
foreclose against itself as the owner of both the property and
the lien.
On September 20, 2010, the county court granted the City’s
motion for setoff. The court concluded that the City did not
have to name itself as a party condemnee in order to have its
interest in the lien on the condemned property ascertained.
The court set off the condemnation award by $24,547.07. That
amount represented the original $8,500 lien plus $16,047.07 in
interest pursuant to § 45-104.01.
CITy OF WaverLy v. heDrICk 	467
Cite as 283 Neb. 464

hedrick appealed the September 20, 2010, setoff order to the
district court. In addition to the arguments hedrick presented
in county court, hedrick asserted that the county court lacked
jurisdiction to grant the City’s setoff motion because a county
court has no jurisdictional authority to hear motions or enter
orders. The district court rejected hedrick’s arguments and
affirmed the order of the county court.
aSSIGNMeNTS OF errOr
hedrick asserts, summarized and restated, that the district
court erred in failing to conclude that (1) the county court
lacked subject matter jurisdiction to hear the City’s motion
for setoff and (2) the City waived recovery of its lien inter-
est by failing to condemn the lien as part of the condemna-
tion proceedings.
STaNDarD OF revIeW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.1
[2] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court.2
aNaLySIS
hedrick makes two arguments as to why we must reverse
the judgment below. First, he asserts that the county court,
being a court of limited jurisdiction, lacked the power to
determine a setoff. Second, hedrick asserts that the City
is procedurally barred from obtaining compensation for its
interest in the land, because the City failed to name itself as
condemnee in the petition for appointment of appraisers. We
agree that the county court did not have subject matter juris-
diction to determine the setoff, but we disagree that the City
1 Armstrong v. County of Dixon, 282 Neb. 623, 808 N.W.2d 37 (2011).
2 Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 281 Neb. 455, 797
N.W.2d 748 (2011).
468 	283 NeBraSka repOrTS

was procedurally barred from obtaining a setoff in district
court. accordingly, we remand the matter of the setoff for
determination in district court.
Jurisdiction
[3] We have explained that the powers conferred upon the
county court judge by the condemnation statutes are not judi-
cial powers or duties, but are instead purely ministerial in char-
acter.3 No trial is conducted before a judge who pronounces a
judgment.4 No evidence is received, and no record is made.5
Instead, the court appoints the appraisers, which appointment
is a ministerial act.6 and the hearing is before the appraisers,
not the county court.7 The issues in county court are limited
to the amount of the damages.8 In addition, Neb. rev. Stat.
§ 76-726 (reissue 2009) confers upon the county court juris-
diction to award costs and fees incurred by a party resisting
a condemnation.
[4,5] “There can be no variance in the issues because no
pleading, except the petition of the condemner, is contemplated
in the administrative proceeding [before the county court].”9
Only when the appraiser’s report is appealed to the district
court do the proceedings become “judicial.”10 The statutes
3 See, e.g., Weiner v. State, 179 Neb. 297, 137 N.W.2d 852 (1965); Lane
v. Burt County Rural Public Power Dist., 163 Neb. 1, 77 N.W.2d 773
(1956).
4 See, Estate of Tetherow v. State, 193 Neb. 150, 226 N.W.2d 116 (1975);
Lane v. Burt County Rural Public Power Dist., supra note 3.
5 Estate of Tetherow v. State, supra note 4.
6 See Scheer v. Kansas-Nebraska Natural Gas Co., 158 Neb. 668, 64
N.W.2d 333 (1954).
7 Id.
8 See id.
9 Id. at 675, 64 N.W.2d at 337.
10 See, e.g., Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010);
Lane v. Burt County Rural Public Power Dist., supra note 3; Higgins v.
Loup River Public Power Dist., 157 Neb. 652, 61 N.W.2d 213 (1953);
Ditter v. Nebraska Bd. of Parole, 11 Neb. app. 473, 655 N.W.2d 43
(2002).
CITy OF WaverLy v. heDrICk 	469
Cite as 283 Neb. 464

relating to condemnation proceedings contemplate the filing of
pleadings and the framing of any issues—other than damages
to the condemnee—for the first time in the judicial proceeding
in district court.11
Thus, in Higgins v. Loup River Public Power Dist.,12 we
explained that the issue of whether a condemnor had attempted
to negotiate a sale prior to commencing condemnation pro-
ceedings, as required by law, was a judicial question which
the county court lacked the power to decide. Similarly, in
Scheer v. Kansas-Nebraska Natural Gas Co.,13 we indicated
that the question of whether a gas company took more land
than described in the description of an easement in a con-
demnation petition was a judicial matter outside the county
court’s jurisdiction.
[6-8] Determination of questions of fact upon evidence, or
the exercise of discretion in ascertaining or fixing an amount
to be allowed, generally involves judicial rather than ministe-
rial acts.14 The existence and amount of a lien, the amount of
accrued interest, and whether there should be a setoff from the
condemnation award involve judicial, rather than ministerial,
determinations. Because the eminent domain statutes do not
confer upon county courts the power to hear motions for setoff,
they lack jurisdiction to do so.
[9,10] But the district court has original as well as appellate
jurisdiction over the subject matter and can determine matters
beyond the question of the valuation of the land or interests
taken.15 The Nebraska Constitution, article v, § 9, confers
upon the district courts general powers in both law and equity
11 See, Armstrong v. County of Dixon, supra note 1; Estate of Tetherow v.
State, supra note 4; Jensen v. Omaha Public Power Dist., 159 Neb. 277,
66 N.W.2d 591 (1954); Scheer v. Kansas-Nebraska Natural Gas Co., supra
note 6.
12 Higgins v. Loup River Public Power Dist., supra note 10.
13 Scheer v. Kansas-Nebraska Natural Gas Co., supra note 6.
14 See Allen v. Miller, 142 Neb. 469, 6 N.W.2d 594 (1942).
15 See, Armstrong v. County of Dixon, supra note 1; Estate of Tetherow v.
State, supra note 4; Jensen v. Omaha Public Power Dist., supra note 11;
Scheer v. Kansas-Nebraska Natural Gas Co., supra note 6.
470 	283 NeBraSka repOrTS

to make judicial determinations.16 and district courts have the
inherent power in the administration of justice and, governed
by the principles of equity, to order setoff from an award or
judgment.17 The district court had the jurisdictional power to
order a setoff from the condemnation award.
procedure
[11] hedrick points out, however, that the general eminent
domain statutes prescribe the manner and method by which
condemnors may exercise the power of eminent domain.18 and
hedrick asserts that the condemnation statutes do not con-
template setoff. rather, the statutes require lienholders to be
named as condemnees and have their interests determined by
the appraisers. hedrick argues that courts cannot derogate from
prescribed procedure. he also argues that because the City did
not name itself as condemnee and obtain valuation of its inter-
est before the valuation of the condemnation award became
final, the City is now procedurally barred from obtaining relief
in these eminent domain proceedings.
[12] It is generally true that failure to designate in the peti-
tion and to make a party respondent the owner of any interest
in the land taken whose title appears of record or is other-
wise ascertainable on reasonable inquiry renders the proceed-
ings ineffectual to transfer such interest to the condemning
party.19 But there is no need to transfer to the City some-
thing it already owns. Indeed, Neb. rev. Stat. § 76-704.01
(reissue 2009) provides that the petition in eminent domain
shall include the title, right, or interest in the property “to
be acquired.”
16 See, also, K N Energy, Inc. v. City of Scottsbluff, 233 Neb. 644, 447
N.W.2d 227 (1989); Miller v. Janecek, 210 Neb. 316, 314 N.W.2d 250
(1982).
17 See, Sherwood v. Salisbury, 139 Neb. 838, 299 N.W. 185 (1941); Dalton
State Bank v. Eckert, 135 Neb. 500, 282 N.W. 490 (1938).
18 Burlington Northern Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235, 631
N.W.2d 131 (2001).
19 See Papio-Missouri River NRD v. Willie Arp Farms, 15 Neb. app. 984, 739
N.W.2d 776 (2007).
CITy OF WaverLy v. heDrICk 	471
Cite as 283 Neb. 464

The parties focus on whether the City is a “[c]ondemnee”
as defined by Neb. rev. Stat. § 76-701(2) (reissue 2003). The
City claims that it cannot be a “person, partnership, limited
liability company, corporation, or association” as described by
§ 76-701(2). This is incorrect. The law in Nebraska is clear that
a public entity may be considered a “condemnee” under the
eminent domain statutes.20
[13] Nevertheless, we agree with the City that it cannot
condemn its own property interest. While all parties having
an interest in the land may be “owners” within the meaning
of the condemnation statutes,21 the City is not a condemnee as
that term is defined by § 76-701(2). Condemnee “means any
person, partnership, limited liability company, corporation, or
association owning or having an encumbrance on any inter-
est in property that is sought to be acquired by a condemner
or in possession of or occupying any such property.”22 as
already stated, the City’s interest is not one that “is sought to
be acquired by a condemner.”23 One cannot “acquire” some-
thing one already has. We have been unable to find any cases
in our long history of eminent domain jurisprudence in which
the condemnor has also been the condemnee of its own prop-
erty interest.
To the contrary, in State v. Missouri P. R. Co.,24 we implic-
itly accepted the argument that it would be inconsistent for the
State to condemn its own tax lien. The State in Missouri P. R.
Co. had sued a railroad company to recover under a statutory
tax lien on property acquired by the railroad company through
condemnation proceedings. The railroad company argued that
the condemnation had extinguished the lien. We disagreed and
said that if the railroad company had wished to extinguish the
tax lien upon condemnation, it should have joined the State
20 See State v. Missouri P. R. Co., 75 Neb. 4, 105 N.W. 983 (1905).
21 See Ehlers v. Chicago, B. & Q. R. Co., 118 Neb. 477, 225 N.W. 468
(1929).
22 § 76-701(2) (emphasis supplied).
23 Id.
24 State v. Missouri P. R. Co., supra note 20.
472 	283 NeBraSka repOrTS

in the condemnation action. In so concluding, we rejected the
railroad’s argument that it would have been inconsistent for
the railroad, as a representative of the State, to condemn its
“own” lien. We held that the railroad company did not act as
an agent of the State when condemning the property and that
the profit resulting from the condemnation did not “inure to
the treasury of the state.”25 The property condemned remained
“private property the same as before.”26 “There is therefore
no inconsistency in bestowing the power of eminent domain
upon railway companies without at the same time giving to the
railway company the power to annul . . . all tax liens upon the
property it may desire to so take.”27
[14] The eminent domain statutes do not explicitly con-
template a scenario where the condemnor has a lien interest
in the land acquired. But we conclude that it is appropriate
for a district court to consider the question of a setoff in such
instances—upon a timely motion by the condemnor. It is well
established that the condemnation money stands in place of the
land, and belongs to the lienholder, to the extent of the value
of the lien.28
hedrick argues that allowing setoff falls afoul of the propo-
sition that statutes prescribing proceedings for condemnation
of property and the assessment of compensation must be
strictly construed against the condemnor and in favor of the
landowner.29 We disagree. We find no reason to construe the
statutes so as to bestow a windfall upon a condemnee. If the
district court does not account for the City’s preexisting lien
on the property, the City’s security for the debt hedrick has
refused to pay will be forever lost. as the City points out, it
cannot foreclose against itself any more than it can condemn
its own property.
25 Id. at 7, 105 N.W. at 984.
26 Id. at 6, 105 N.W. at 984.
27 Id. at 7, 105 N.W. at 984.
28 See, e.g., Omaha Bridge & Terminal R. Co. v. Reed, 69 Neb. 514, 96 N.W.
276 (1903).
29 See Webber v. City of Scottsbluff, 155 Neb. 48, 50 N.W.2d 533 (1951).
CITy OF WaverLy v. heDrICk 	473
Cite as 283 Neb. 464

CONCLUSION
The district court erred in remanding the matter of the setoff
to the county court. Determining the City’s lien and whether
and to what amount it should be deducted from the condemna-
tion award was a judicial matter within the jurisdiction of the
district court. It was properly presented to the district court
through a timely motion by the City. We vacate the county
court’s order of setoff. We reverse, and remand to the district
court to determine the extent to which the proceeds from the
award should be given to the City in payment of its lien on the
condemned property.
vAcAted in pArt, And in pArt reversed
And remAnded With directions.
stAte of nebrAskA ex rel . counsel for discipline
of the nebrAskA supreme court, relAtor , v.
dAvid m. WAlochA, respondent.
811 N.W.2d 174
Filed March 9, 2012. 	No. S-11-422.
1. Disciplinary Proceedings. a proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The basic issues in a disciplinary proceeding against an attorney are
whether the Nebraska Supreme Court should impose discipline and, if so, the
appropriate discipline under the circumstances.
3. ____. To determine whether and to what extent discipline should be imposed in
an attorney discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
4. ____. In imposing attorney discipline, the Nebraska Supreme Court evaluates
each case in light of its particular facts and circumstances.
5. ____. In imposing attorney discipline, the Nebraska Supreme Court considers the
discipline that it has imposed in cases presenting similar circumstances.
6. ____. In determining the proper discipline of an attorney, the Nebraska Supreme
Court considers the attorney’s acts both underlying the events of the case and
throughout the proceeding.
7. ____. When determining appropriate discipline of an attorney, the Nebraska
Supreme Court considers aggravating and mitigating factors.
474 	283 NeBraSka repOrTS