The Metropolitan Utilities District condemned easements across a west Omaha developer’s subdivision to install two large subterranean aqueducts. The 54 and 48 inch diameter lines were installed to move water to, and from, a 20 million gallon reservoir on the City’s west side.
The condemnation produced an offer of $50,000 for the landowner’s property interests. But, responding to David Domina’s arguments at trial, a jury disagreed, awarding $750,000 for the property interests. The trial judge added several years’ interest and attorneys’ fees, bringing the award to more than $1.0 million.
On April 1, the Nebraska Supreme Court heard MUD’s argument that the judgment was too large. MUD complained that evidence received at trial should not have been allowed. Domina countered “MUD lawyers complained about the evidence at trial, proposed a curative jury instruction, and obtained the trial court’s assent to the instruction. Then they changed their minds, choosing to go forward, and take their chances with the jury. This waived any claim about the evidence,” Domina argued.
MUD also complained that documents appealing the award to district court were defective because a certificate of service instead of an affidavit were used to confirm delivery of the appeal notice to MUD. Yet, MUD’s lawyers responded to the pleadings, proceeded with the case, conducted trial, submitted their appellate briefs, and did not raise the argument until their reply brief where they contended the notice defect should vacate the landowner’s favorable judgment.
Responding to the arguments, Domina noted that “First, new arguments not raised in the trial court, or assigned as error, cannot be raised in a reply brief. Second, to the extent the argument purports to raise a jurisdiction issue that can come up at any time, it is without merit. Certificates of Service are appropriate for serving lawyers of record under a separate statute. Third, the entire case, and thousands of cases in Nebraska courts, are conducted with the Certificate of Service statute prescribing the method for informing lawyers of record about proceedings.”
The decision is expected by the end of the Supreme Court’s current term. The term will end at the end of July 2008.
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