Transcanada Keystone Pipeline, LP v. Nicholas Family Ltd. P'ship, 299 Neb. 276

TransCanada filed eminent domain petitions in multiple Nebraska counties (Jan 2015) seeking easements for the Keystone XL pipeline; petitions were later dismissed without prejudice after a separate constitutional challenge to the route was filed by landowners.
Landowners moved in county court under Neb. Rev. Stat. § 76-726 for reimbursement of costs and attorney fees (motions filed Oct 2015); affidavits from landowners, their counsel, and third attorneys accompanied the motions.
County courts awarded fees in multiple cases; TransCanada appealed to district courts, which reached differing conclusions about admissibility of affidavits and sufficiency of proof that fees were "actually incurred."
Central legal questions concerned (1) whether affidavits asserting fee obligations were admissible despite hearsay rules, (2) whether § 76-726 requires proof of payment vs. proof of an indebtedness for services "actually incurred," and (3) whether the affidavits and record established the amounts owed by each landowner.
The Nebraska Supreme Court consolidated the appeals, held affidavits are admissible for collateral fee motions, but found the affidavits here lacked sufficient individualized proof (no written fee agreements, invoices, or specific amounts owed) to support awards.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of landowner affidavits (hearsay)	Affidavits are permissible in motion practice and are proper for collateral fee requests	Affidavits are hearsay and inadmissible to prove fees	Affidavits are admissible for collateral attorney-fee motions under § 25-1244; live testimony not required
Waiver of hearsay objection	N/A (landowners)	TransCanada: it did not waive hearsay objections by not insisting on ruling	Court did not need to resolve waiver for all cases; resolved on other grounds in some appeals
Nature of recovery under § 76-726 (payment vs. incurred)	Landowners: § 76-726 allows reimbursement for costs "actually incurred" meaning indebtedness for services rendered, not necessarily paid	TransCanada: reimbursement requires fees actually paid by landowners before award	Held that "actually incurred" means fees for services rendered (indebtedness), payment not required before award
Sufficiency of proof of amounts owed	Affidavits and counsels' affidavits established representation, fee agreements, and reasonableness	TransCanada: affidavits were vague, lacked written fee agreements, invoices, or itemized amounts per landowner	Held affidavits were insufficiently specific (no written fee agreements/invoices or amounts per landowner); awards reversed and remanded with directions to vacate awards

Simon v. City of Omaha, 267 Neb. 718 (discusses § 76-726 attorney-fee awards)
O'Brien v. Cessna Aircraft Co., 298 Neb. 109 (standard for review of attorney-fee awards)
Kaminski v. Bass, 252 Neb. 760 (affidavit use and collateral matters)
Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997 (affidavits and fee support practice)
Garza v. Garza, 288 Neb. 213 (advice that affidavits are preferred to support fee awards)
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (procedural guidance on fee evidence)
Arizona Motor Speedway v. Hoppe, 244 Neb. 316 (definition of "actually incurred" as services rendered)