SourceGas Distrib. v. City of Hastings

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 	595
Cite as 287 Neb. 595
the circumstances that the trial judge heard and observed
the witnesses and accepted one version of the facts rather
than another.12
For the order to be issued, Torres would have needed to
provide at least some evidence of abuse as defined under
§ 42-903(1). Based on her own testimony, the only bodily harm
inflicted on Torres was what appears to have been an acciden-
tal elbowing—this certainly falls short of the “intentionally and
knowingly” requirement of subsection (1)(a). Torres did not
present any evidence that Morales threatened her as required
by subsection (1)(b). And, finally, Torres did not present any
evidence of any nonconsensual sexual contact as required by
subsection (1)(c).
The district court did not err in failing to issue the protec-
tion order.
CONCLUSION
For the foregoing reasons, the order dismissing the cause is
affirmed, but the portion of the order requiring Torres to pay
the costs of the action is reversed.
A ffirmed in pArt, And in pArt reversed.
H eAvicAn, C.J., participating on briefs.
12 Elstun, supra note 1.
source GAs distribution LLc, A deLAwAre Limited
LiAbiLity compAny, AppeLLAnt, v. city of HAstinGs,
nebrAskA, A municipAL corporAtion, for And
on beHALf of tHe boArd of pubLic works
of tHe city of HAstinGs, AppeLLee.
844 N.W.2d 256
Filed March 7, 2014. 	No. S-13-239.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law
that an appellate court independently reviews.
2. ____: ____. Absent anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:36 AM CST

596 	287 NEBRASKA REPORTS
3. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not
look beyond a statute to determine the legislative intent when the words are plain,
direct, or unambiguous.
4. Statutes: Appeal and Error. In construing statutory language, an appellate court
attempts to give effect to all parts of a statute and to avoid rejecting a word,
clause, or sentence as superfluous or meaningless.
5. ____: ____. An appellate court will not read into a statute a meaning that is
not there.
Appeal from the District Court for Adams County: stepHen
r. iLLinGwortH, Judge. Affirmed.
Stephen M. Bruckner and Russell A. Westerhold, of Fraser
Stryker, 	P.C., 	L.L.O., 	and Timothy 	Knapp, 	of 	SourceGas
Distribution LLC, for appellant.
Michael E. Sullivan, of Sullivan Shoemaker, P.C., L.L.O.,
for appellee.
H eAvicAn, c.J., wriGHt, connoLLy, stepHAn, mccormAck,
miLLer-L ermAn, and cAsseL, JJ.
miLLer-L ermAn, J.
NATURE OF CASE
The City of Hastings, Nebraska, on behalf of the board of
public works of the City of Hastings, had filed a petition in the
county court for Adams County on January 15, 2013, seeking
to initiate condemnation proceedings against property owned
by SourceGas Distribution LLC that was located in an area that
had been annexed by Hastings. Hastings brought its petition
under the general condemnation procedures found at Neb. Rev.
Stat. §§ 76-701 through 76-726 (Reissue 2009 & Cum. Supp.
2012) (chapter 76). In an effort to enjoin the county court
proceedings, on January 22, in a separate matter, SourceGas
Distribution filed a complaint for temporary and permanent
injunction in the district court for Adams County, primar-
ily alleging that Hastings must utilize Nebraska’s Municipal
Gas System Condemnation Act, Neb. Rev. Stat. §§ 19-4624
through 19-4645 (Reissue 2012) (Gas System Condemnation
Act), rather than the procedures in chapter 76. The district
court case gives rise to this appeal.

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 	597
Cite as 287 Neb. 595
An 	evidentiary 	hearing 	was 	conducted 	on 	SourceGas
Distribution’s motion for temporary injunction, and on February
22, 2013, the district court filed an order overruling the motion
for temporary injunction and dismissing the complaint. The
district court concluded, inter alia, that § 19-4626(2) exempted
Hastings from being required to proceed under the Gas System
Condemnation Act and that Hastings could utilize the general
condemnation procedures set forth in chapter 76. SourceGas
Distribution appeals, assigning various errors. The district court
stayed the condemnation proceedings pending this appeal. We
conclude the district court correctly concluded that pursuant
to § 19-4626(2), the Gas System Condemnation Act does not
apply to this case, and that instead, chapter 76 applies. Finding
no errors, we affirm.
STATEMENT OF FACTS
Hastings is located in Adams County and is a city of the first
class as defined by Neb. Rev. Stat. § 16-101 (Reissue 2012).
Hastings, by and through its board of public works, which is
often referred to as “Hastings Utilities,” owns and operates its
own municipal utility system.
SourceGas Distribution is a Delaware limited liability com-
pany with its principal place of business located in Golden,
Colorado. SourceGas Distribution provides retail natural gas
distribution service throughout Adams County, except for cer-
tain areas served by Hastings.
On March 14, 2011, Hastings’ city council adopted ordi-
nance No. 4279 and thereby annexed an area east of Hastings,
which primarily consisted of a community college campus.
SourceGas Distribution owns easements, rights-of-way, natu-
ral gas pipelines, mains, distribution mains and lines, meters,
measuring and regulating stations facilities, and appurtenances
(gas facilities) in the area that was annexed. It is this collec-
tion of gas facilities which Hastings seeks to acquire through
condemnation proceedings commenced in county court and to
which SourceGas Distribution objects in its lawsuit filed in
district court.
The record shows that on March 22, 2011, Hastings con-
tacted SourceGas Distribution and commenced negotiations to

598 	287 NEBRASKA REPORTS
acquire SourceGas Distribution’s gas facilities located in the
annexed area; however, the negotiations were not successful
and ended in December 2012. After the negotiations failed, on
January 15, 2013, Hastings commenced condemnation proceed-
ings by filing a petition styled “Petition for Appointment of
Appraisers” in county court. See City of Hastings v. SourceGas
Distribution, Adams County Court, case No. CI 13-86. By the
petition, Hastings sought to acquire the gas facilities owned
by SourceGas Distribution in the annexed area by utilizing the
condemnation procedures set forth in chapter 76.
The petition stated that Hastings had determined the neces-
sity of acquiring
title and ownership to certain pipelines, mains, distribu-
tion mains and lines, meters, measuring and regulating
stations, and other equipment and appurtenances, as well
as any interests in real estate, including but not limited to
fee simple title, easements, rights-of-way, licenses, and its
customer accounts all owned by SourceGas Distribution,
LLC or its affiliates, and all related to the distribution of
natural gas . . . which are presently owned by [SourceGas
Distribution]. This acquisition is being made in connec-
tion with a proposed project for the acquisition and/or
installation of those Gas Facilities necessary to enable
[Hastings] to furnish and distribute natural gas service to
all natural gas customers located within an area recently
annexed to the City of Hastings.
The petition further stated that Hastings sought to acquire “all
of [SourceGas Distribution’s] Gas Facilities located within the
boundaries of that certain area which was annexed by the City
of Hastings on March 14, 2011,” and that the boundaries of the
annexed area were described by legal description within the
ordinance annexing the area, ordinance No. 4279, and the map
attached thereto. A copy of ordinance No. 4279 and the map
were attached to Hastings’ petition.
On January 22, 2013, in the separate matter before us,
SourceGas Distribution filed its “Complaint for Temporary
and Permanent Injunction and Other Equitable Relief” in
district court, generally alleging that Hastings is unlawfully
attempting to condemn the gas facilities by proceeding under

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 	599
Cite as 287 Neb. 595
the general condemnation procedures set forth in chapter 76.
In the complaint, SourceGas Distribution specifically alleged
that it was entitled to an injunction because the proper pro-
cedures that Hastings must utilize to condemn SourceGas
Distribution’s gas facilities are set forth in the Gas System
Condemnation Act 	rather 	than 	in 	chapter 	76. 	SourceGas
Distribution also alleged in its complaint that Hastings failed
to comply with § 76-704.01 because it failed to precisely
describe in its county court petition the property sought to
be condemned. SourceGas Distribution further alleged that
Hastings failed to negotiate with SourceGas Distribution in
good faith prior to commencing condemnation. Attached to
SourceGas Distribution’s complaint was a copy of a descrip-
tion of real property owned by SourceGas Distribution in the
annexed area and a copy of Hastings’ condemnation petition
and its exhibits.
On the same date that SourceGas Distribution filed its com-
plaint, it also filed a “Motion for Temporary Injunction” seek-
ing to temporarily enjoin Hastings from condemning the gas
facilities owned by SourceGas Distribution. A hearing was held
on the motion on January 29, 2013. At the hearing, SourceGas
Distribution offered and the district court received three affi-
davits, and Hastings offered and the district court received
two affidavits. The district court granted the parties leave
to file additional affidavits. Hastings offered three additional
affidavits, including that of Lash Chaffin from the League of
Nebraska Municipalities, describing, inter alia, his understand-
ing of the relevance of the Gas System Condemnation Act. On
February 12, SourceGas Distribution filed written objections
to Chaffin’s affidavit, based on hearsay, insufficient founda-
tion, and relevance. On February 22, the district court received
the three additional exhibits offered by Hastings, including
Chaffin’s affidavit.
On February 22, 2013, the district court filed its “Journal
Entry and Order of Dismissal,” in which it overruled SourceGas
Distribution’s motion for temporary injunction and dismissed
SourceGas Distribution’s complaint.
With respect to the applicable law, the district court rejected
SourceGas Distribution’s argument that Hastings must utilize

600 	287 NEBRASKA REPORTS
the procedures set forth in the Gas System Condemnation Act
to condemn SourceGas Distribution’s property. The centerpiece
of the district court’s conclusion as to the applicable statute
was its determination that § 19-4626(2) exempts Hastings from
proceeding under the Gas System Condemnation Act. Section
19-4626(2) provides: “Nothing in the act shall be construed to
govern or affect the manner in which a city which owns and
operates its own gas system condemns the property of a utility
when such property is brought within the corporate bound-
aries of the city by annexation.” The district court noted that
Hastings owns its own gas system and had previously annexed
the area in question.
With respect to the merits, the district court reasoned that
SourceGas Distribution had not suffered and will not suffer
irreparable harm due to the condemnation proceedings because
the only harm SourceGas Distribution could suffer is financial,
and under chapter 76, Hastings is obligated to compensate
SourceGas Distribution for its loss. The district court further
determined that SourceGas Distribution did not have a clear
right to the relief it sought and that it is not against the public
interest for Hastings to utilize the condemnation procedures
under chapter 76. The district court did not directly address
the issue of whether the property was adequately described
in the condemnation petition. Based on the above reasoning,
the district court overruled SourceGas Distribution’s motion
for temporary injunction, stated that it is “obvious [SourceGas
Distribution] would not succeed on the merits of its com-
plaint,” and dismissed its complaint.
SourceGas Distribution appeals. The district court stayed the
condemnation proceedings pending this appeal.
ASSIGNMENTS OF ERROR
SourceGas Distribution assigns on appeal, restated, that
the district court generally erred when it denied SourceGas
Distribution’s motion for temporary injunction and dismissed
its complaint. SourceGas Distribution specifically claims that
the district court erred when it concluded that chapter 76 and
not the Gas System Condemnation Act was applicable to the
condemnation of the gas facilities. SourceGas Distribution also

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 	601
Cite as 287 Neb. 595
claims the district court erred when it failed to find that the
description of the property to be appraised in the county court
matter was inadequate and when it received Chaffin’s affidavit
into evidence.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law that
an appellate court independently reviews. In re Estate of
Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).
ANALYSIS
[2-5] Because its reading of § 19-4626(2) of the Gas
System Condemnation Act was fundamental to the district
court’s resolution of the case, we are asked on appeal to con-
strue § 19-4626(2). We begin by turning to the familiar canons
of statutory construction. Absent anything to the contrary,
an appellate court will give statutory language its plain and
ordinary meaning. Strasburg v. Union Pacific RR. Co., 286
Neb 743, 839 N.W.2d 273 (2013). We will not look beyond a
statute to determine the legislative intent when the words are
plain, direct, or unambiguous. Fisher v. PayFlex Systems USA,
285 Neb. 808, 829 N.W.2d 703 (2013). In construing statutory
language, we attempt to give effect to all parts of a statute and
to avoid rejecting a word, clause, or sentence as superfluous
or meaningless. See id. Likewise, we will not read into a stat-
ute a meaning that is not there. Blakely v. Lancaster County,
284 Neb. 659, 825 N.W.2d 149 (2012). Based on these princi-
ples and given our independent reading of the plain language
of § 19-4626(2) discussed below, we need not refer to the
substance of Chaffin’s affidavit in the resolution of this case.
The admission of Chaffin’s affidavit, if error, was harmless.
See Simon v. Drake, 285 Neb. 784, 792, 829 N.W.2d 686,
692 (2013) (stating that “[i]n a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly
prejudiced a substantial right of the complaining party”).
Therefore, we determine that SourceGas Distribution’s assign-
ment of error regarding the admission of Chaffin’s affidavit is
without merit.

602 	287 NEBRASKA REPORTS
Chapter 76 ordinarily applies to condemnation proceedings,
and the general condemnation procedures found in chapter 76
apply unless there are more specific statutes that will govern
the condemnation proceedings. Section 76-703 provides that if
the condemnation proceedings will result in a decrease in the
condemnee’s territory or volume of service, then the determi-
nation of damages shall be determined pursuant to the more
specific statutes rather than the damage provisions found in
chapter 76, if those other statutes apply to the condemnation at
issue. Section 76-703 provides:
Damages to be paid by the condemner for any property
including parts of or easements across rights-of-way of
a public utility or a railroad taken through the exercise
of the power of eminent domain shall be ascertained and
determined as provided in sections 76-704 to 76-724,
except that if it is sought to condemn the property, or
such part thereof as will result in a decrease in the ter-
ritory or volume of service, of a public utility engaged
in the rendition of existing service, such damages shall
be ascertained and determined as provided in sections
19-701 to 19-707 [pertaining to waterworks, electric utili-
ties, and railways] and 70-650 [pertaining to electric dis-
tribution systems] or the . . . Gas System Condemnation
Act, when applicable.
SourceGas Distribution contends that because the condem-
nation proceedings by Hastings will result in a decrease of
SourceGas Distribution’s territory or volume of service, one
of the specific statutes listed in § 76-703, rather than chapter
76, shall apply to the determination of damages. We disagree.
In this regard, we note that § 76-703 provides that damages
shall be ascertained under one of the more specific statutes
instead of chapter 76 only “when [those other statutes are]
applicable”—a determination made by reference to the provi-
sions of those other statutes.
Sections 	19-701 	through 	19-707 	and 	Neb. 	Rev. 	Stat.
§ 70-650 (Reissue 2009) are mentioned in § 76-703 and are not
applicable to the facts of this case. Section 70-650 applies to
electric distribution systems. Sections 19-701 through 19-707

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 	603
Cite as 287 Neb. 595
set 	forth 	condemnation 	procedures 	regarding 	“any 	water-
works, waterworks system, electric light plant, electric light
and power plant, heating plant, street railway, or street railway
system.” § 19-701. Although gas systems were formerly gov-
erned by §§ 19-701 through 19-707, in 2002, the Legislature
adopted 2002 Neb. Laws, L.B. 384, creating the Gas System
Condemnation Act, thus removing gas systems from §§ 19-701
through 19-707.
Continuing our examination of § 76-703, we note that the
Gas System Condemnation Act is mentioned therein, but as
explained below, we conclude, as did the district court, that
the Gas System Condemnation Act is not applicable to the
condemnation procedure and determination of damages in this
case. Generally, a city may acquire and appropriate a gas sys-
tem through eminent domain by following the procedures set
forth in the Gas System Condemnation Act. See § 19-4625.
However, § 19-4626 sets forth exceptions identifying cir-
cumstances when the Gas System Condemnation Act will not
apply to a gas system condemnation. Section 19-4626(2),
provides: “Nothing in the act shall be construed to govern or
affect the manner in which a city which owns and operates
its own gas system condemns the property of a utility when
such property is brought within the corporate boundaries of
the city by annexation.” Therefore, § 19-4626(2) provides that
the Gas System Condemnation Act does not apply when a city
owns and operates its own gas system and the property that is
being condemned is within the corporate boundaries of the city
by annexation.
In this case, it is not disputed that Hastings owns and oper-
ates its own gas system, and the property consisting of gas
facilities owned by SourceGas Distribution that are at issue
are located in an area that was brought within the corpo-
rate boundaries of Hastings by annexation. The language of
§ 19-4626(2) is unambiguous, and we will give the language
its plain and ordinary meaning. Strasburg v. Union Pacific RR.
Co., 286 Neb. 743, 839 N.W.2d 273 (2013). Under the plain
language of § 19-4626(2), we conclude the district court was
correct when it determined that pursuant to § 19-4626(2), the

604 	287 NEBRASKA REPORTS
Gas System Condemnation Act does not apply to this case, and
that instead, the general condemnation procedures set forth in
chapter 76 apply.
Despite the plain language of § 19-4626(2), SourceGas
Distribution asserts that because of differing language between
§ 19-4626(1) and (2), the exception found at § 19-4626(2)
does not apply to this case. SourceGas Distribution reasons
that the gas facilities which Hastings seeks to condemn are part
of a gas system and that § 19-4626(2) exempts only property
that is not part of a gas system. We disagree with SourceGas
Distribution’s reading of these provisions.
SourceGas 	Distribution 	points 	to 	§ 	19-4626(1), 	which
provides:
A city may condemn the property of a utility which con-
stitutes a portion of a gas system without complying with
the . . . Gas System Condemnation Act if the condemna-
tion is necessary for the public purpose of acquiring an
easement or right-of-way across the property of the utility
or is for the purpose of acquiring a portion of the gas sys-
tem for a public use unrelated to the provision of natural
gas service.
(Emphasis supplied.)
SourceGas Distribution contends that the phrase “the prop-
erty of a utility which constitutes a portion of a gas system”
in § 19-4626(1) differs from the phrase “the property of a util-
ity” in § 19-4626(2) and that by using these differing phrases,
the Legislature intended the phrase “the property of a utility”
in § 19-4626(2) to cover only property that is not “a portion
of a gas system.” Under the view of SourceGas Distribution,
chapter 76 would apply to property that is not a portion of
the gas system, but the Gas System Condemnation Act would
apply to property that is a portion of a gas system. Applying
its interpretation of the statutes, SourceGas Distribution thus
contends that the exception in § 19-4626(2) does not exempt
Hastings from following the procedures of the Gas System
Condemnation Act in this case in which Hasting seeks to
condemn the gas facilities at issue, because the gas facilities
are in fact a portion of a gas system and § 19-4626(2) does

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 	605
Cite as 287 Neb. 595
not exempt such property from application of the Gas System
Condemnation Act.
We 	believe 	that 	the 	difference 	in 	the 	phrases 	used
in § 19-4626(1) and (2) is not meaningful, and we reject
SourceGas Distribution’s argument. We understand the phrase
“the property of a utility” in § 19-4626(2) to include the real
and personal property of a utility, and therefore, this phrase
anticipates the current case where Hastings is seeking to con-
demn gas facilities owned by SourceGas Distribution. There is
no need to characterize such property as being or not being a
portion of a gas system.
The district court essentially determined that Hastings was
properly proceeding in county court under chapter 76 and
that SourceGas Distribution was not going to succeed on its
complaint. We agree with the district court’s assessment of
the record. Thus, the district court did not err when it denied
SourceGas Distribution’s motion for temporary injunction and
dismissed its complaint.
SourceGas Distribution also claims on appeal that the dis-
trict court erred in its treatment of its claim challenging the
sufficiency of the description of the property that Hastings
sought to be appraised in the county court matter. The district
court did not explicitly address the issue of the sufficiency of
the description in its February 22, 2013, order. We agree with
the district court that it is premature to address this issue in
this case. Thus, we find no error in this regard and we do not
comment on the sufficiency of the description. See Brodine
v. State, 180 Neb. 433, 143 N.W.2d 361 (1966) (in matter
which commenced in county court, affirming district court’s
order affirming appraisers’ award and finding that description
of property in pleading and accompanying map were suffi-
ciently accurate).
CONCLUSION
We find no merit to the assigned errors. The district court
correctly concluded that pursuant to the exception set forth
in § 19-4626(2), the Gas System Condemnation Act does not
apply and, instead, the general condemnation procedures of

606 	287 NEBRASKA REPORTS
chapter 76 apply. This determination of law controls the out-
come of this case, and we therefore determine that the district
court did not err when it denied SourceGas Distribution’s
motion for temporary injunction and dismissed its complaint.
A ffirmed.
stAte of nebrAskA, AppeLLee, v.
dAnny r. robinson, Jr., AppeLLAnt.
843 N.W.2d 672
Filed March 7, 2014. 	No. S-13-306.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
3. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
4. Postconviction: Final Orders. Within a postconviction proceeding, an order
granting an evidentiary hearing on some issues and denying a hearing on others
is a final order as to the claims denied without a hearing.
5. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008), provides that postconviction relief is available to a prisoner
in custody under sentence who seeks to be released on the ground that there was
a denial or infringement of his constitutional rights such that the judgment was
void or voidable.
6. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
of counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
7. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. A court may address the two prongs of this
test, deficient performance and prejudice, in either order.
8. Effectiveness of Counsel: Proof: Words and Phrases. In addressing the “preju-
dice” component of the test in Strickland v. Washington, 466 U.S. 668, 104 S.