TransCanada will not have to pay $354,000 in attorney fees in cases where Nebraska landowners fought the company's attempts to use eminent domain to make way for the Keystone XL pipeline, the Nebraska Supreme Court has ruled.
“We conclude that the landowners did not offer sufficient proof as to their entitlement to an award of attorney costs and fees,” Chief Justice Michael Heavican wrote in Friday's opinion.
TransCanada ultimately dismissed its condemnation petitions in 2015, opting instead to pursue approval of a pipeline route from the Nebraska Public Service Commission.
Last year, the commission approved the company's "mainline alternative" route on a 3-2 vote. That decision is on appeal and could have oral arguments before the state’s highest court late this summer.
But Friday, the Supreme Court addressed the 40 cases on appeal in Holt, York, Saline and Nance counties. In them, David Domina represented 71 landowners who sought costs, expenses and attorney fees for work done in connection to the eminent domain proceedings, as well as a constitutional challenge.
The county courts granted the requests for attorney fees, prompting TransCanada's appeal first to district court judges and later to the Supreme Court.
TransCanada attorney James Powers argued the landowners' affidavit evidence was insufficient to prove their attorney fees; and that the eminent domain statute doesn't allow reimbursement without proof they paid or were charged anything.
In Friday’s opinion, the court didn't have a problem with evidence being offered by affidavit. But it came down to whether the landowners were indebted to counsel for services rendered, Heavican said.
He said no written fee agreement or invoice was offered as evidence. Nor did the landowners say a specific amount they owed counsel.
“These affidavits from counsel were not specific as to any individual landowner and — with respect to work done and fees charged — were virtually identical to one another, including seeking payment of the same amount of money based upon the same number of hours of work. In fact, these affidavits raised more questions than they answered,” Heavican said.
Because they didn’t allege the amount each actually incurred, and because there was no other evidence offered to support the award of attorney fees, the award of attorney fees was in error, the court said, and directed the lower court to vacate the awards.