TransCanada Keystone Pipeline v. Nicholas Family
908 N.W.2d 60
Neb.2018Background
- TransCanada filed eminent-domain petitions in multiple Nebraska counties (Jan 2015) to acquire rights for the Keystone XL pipeline; landowners concurrently filed a constitutional challenge to the pipeline route.
- TransCanada dismissed its county condemnation petitions without prejudice in Oct 2015 while pursuing route approval via the Major Oil Pipeline Siting Act; landowners then moved for attorney fees under Neb. Rev. Stat. § 76-726.
- Landowners submitted affidavits from themselves, their counsel, and other attorneys claiming fees and asserting fee agreements; TransCanada objected to the landowner affidavits as hearsay.
- County courts awarded fees; district courts reached differing conclusions on admissibility, waiver of hearsay objections, whether dismissal equaled abandonment, and whether the affidavits proved fees "actually incurred."
- The Nebraska Supreme Court consolidated appeals and held affidavits are generally admissible in fee motions but reversed fee awards because the record lacked adequate proof of the amount each landowner actually incurred or owed to counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TransCanada waived hearsay objections by failing to insist on a ruling | County courts correct to treat objections as waived | Objections preserved and should bar inadmissible affidavits | Court declined to resolve waiver in most appeals because it resolved admissibility and sufficiency on the merits |
| Whether landowner affidavits are admissible to prove fees under § 76-726 | Affidavits admissible—fee motions are collateral; § 25-1244 permits affidavits in motion practice | Affidavits are hearsay and insufficient; live testimony required | Affidavits are generally admissible for collateral fee motions; live testimony not required |
| Whether § 76-726 requires fees to have been actually paid by landowner (not just incurred) | Landowners: reimbursement may be awarded for fees actually incurred/owed even if unpaid | TransCanada: statute requires proof of payment (actual reimbursement only for paid fees) | Court held § 76-726 requires fees actually incurred (indebtedness or liability), not necessarily already paid |
| Whether the submitted record proved fees actually incurred or owed by each landowner | Landowner affidavits and counsel affidavits suffice to establish indebtedness and amount | Affidavits were vague, undifferentiated, no written fee agreements or invoices, no amounts per landowner—insufficient proof | Court reversed fee awards: affidavits failed to show per-landowner amounts or that each was indebted for services; remanded with directions to vacate awards |
Key Cases Cited
- Simon v. City of Omaha, 267 Neb. 718 (discussing § 76-726 and fee awards when condemnation is abandoned)
- Kaminski v. Bass, 252 Neb. 760 (noting attorney-fee motions are collateral and affidavits appropriate)
- Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997 (affidavit practice in fee matters)
- Garza v. Garza, 288 Neb. 213 (preferring affidavits to support fee awards)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (evidentiary standards for affidavits)
- Arizona Motor Speedway v. Hoppe, 244 Neb. 316 (definition of "actually incurred" as fees based on services rendered)
- O'Brien v. Cessna Aircraft Co., 298 Neb. 109 (standard for appellate review of fee awards)