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Hike v. State, Department of Roads

Supreme Court of Nebraska

July 14, 2017

Leo W. Hike, Jr., and Joanna K. Hike, appellants,
v.
State of Nebraska Department of Roads, appellee.

         1. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

         3. Judgments: Estoppel: Appeal and Error. An appellate court reviews a court's application of judicial estoppel to the facts of a case for abuse of discretion and reviews its underlying factual findings for clear error.

         4. Limitations of Actions. The determination of which statute of limitations applies is a question of law.

         5. Limitations of Actions: Appeal and Error. The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong.

         6. Complaints. Whether a complaint states a cause of action is a question of law.

         7. Judgments: Appeal and Error. Appellate courts independently review questions of law decided by a lower court.

         8. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court invokes at its discretion to protect the integrity of the judicial process.

          [297 Neb. 213] 9. Estoppel. The doctrine of judicial estoppel protects the integrity of the judicial process by preventing a party from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.

         10. Estoppel: Intent. Fundamentally, the intent behind the doctrine of judicial estoppel is to prevent parties from gaining an advantage by taking one position in a proceeding and then switching to a different position when convenient in a later proceeding.

         11. Constitutional Law: Eminent Domain. The eminent domain provision of Neb. Const, art. I, § 21, prohibits the State from taking or damaging property for public use without providing just compensation therefor.

         12. Eminent Domain: Words and Phrases. Inverse condemnation is a shorthand description for a landowner suit to recover just compensation for a governmental taking of the landowner's property without the benefit of condemnation proceedings.

         13. Limitations of Actions: Legislature: Intent. A special statute of limitations controls and takes precedence over a general statute of limitations because the special statute is a specific expression of legislative will concerning a particular subject matter.

         14. Constitutional Law: Limitations of Actions. Neb. Const, art. I, § 21, is enforced procedurally through the eminent domain statutes, Neb. Rev. Stat. § 76-701 et seq. (Reissue 2009 & Cum. Supp. 2016), which do not provide a special statute of limitations.

         15. Limitations of Actions. Neb. Rev. Stat. § 25-202 (Reissue 2016) is not a special statute of limitations, but only a general statute of limitations.

         16. Limitations of Actions: Legislature: Intent. While Neb. Rev. Stat. § 25-218 (Reissue 2016) is not a special statute of limitations for any specific type of claim, when the State is a defendant to a claim, it is a specific expression of the Legislature's will regarding the timeframe to bring such a claim.

         17. Eminent Domain: Statutes. Neb. Rev. Stat. § 25-218 (Reissue 2016) is the applicable statute of limitations for claims of inverse condemnation against the State because § 25-218 is more specific on the subject than is Neb. Rev. Stat. § 25-202 (Reissue 2016).

         18. Actions: Words and Phrases. Bringing an action means to sue or institute legal proceedings.

         19. Appeal and Error. Errors argued but not assigned will not be considered on appeal.

         20. ___ . The purpose of an appellant's reply brief is to respond to the arguments the appellee has advanced against the errors assigned in the appellant's initial brief.

          [297 Neb. 214] Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed.

          Jason M. Bruno and Jared C. Olson, of Sherrets, Bruno & Vogt, L.L.C., for appellants.

          Douglas J. Peterson, Attorney General, and Barry K. Waid for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         I. NATURE OF CASE

         This is an appeal from an order of the district court for Sarpy County, Nebraska, granting summary judgment for the State of Nebraska Department of Roads on an inverse condemnation claim filed by Leo W. Hike, Jr., and Joanna K. Hike. The court ruled that the action was barred by the 2-year statute of limitations set forth in Neb. Rev. Stat. § 25-218 (Reissue 2016). We affirm.

         II. FACTS

         This is the second case between the Hikes and the State. In the first case, Hike v. State (Hike 7), [1] the Hikes filed a petition of appeal in the district court, seeking compensation after the State exercised its power of eminent domain in 2008 to acquire 1.05 acres of the Hikes' property for an expansion of U.S. Highway 75. The parties disagreed about the value of the property taken, and the matter proceeded to a jury trial. On appeal, we affirmed the jury verdict rendered in the case.

         In August 2011, before the trial in Hike I, the State's independent contractor began construction on the property taken from the Hikes. The contractor used heavy machinery to make a 48-foot-deep roadway cut approximately 61 feet from the [297 Neb. 215] Hikes' home. That same month, Leo noticed damage to the brick veneer of the Hikes' residence.

         The Hikes retained two experts to determine the cause and amount of the damage to their home. Both experts attributed the damage, estimated at $51, 829, to the construction on Highway 75. After the Hikes disclosed the evidence of structural damage and that they intended to call their expert witnesses at trial, the State filed a motion in limine to exclude the evidence of damage to the residence. The court sustained the motion to preclude the Hikes from offering any evidence concerning the structural damage.

         After the jury verdict, the Hikes timely appealed, alleging, among other things, that the district court erred by not allowing them to offer evidence of the structural damage. On May 9, 2014, in Hike I, we affirmed the district court's decision to exclude the evidence because it was "not the proximate result of the taking, but, rather, was caused by conduct that occurred after the taking" by the State.[2]

         On April 17, 2015, the Hikes filed the present action claiming the same structural damage that they attempted to offer evidence of in Hike I. On April 19, 2016, the State filed a motion for summary judgment alleging that the Hikes' claim was barred by the 2-year statute of limitations in § 25-218. After a hearing, the court sustained the State's motion and dismissed the Hikes' complaint, finding that the claim was barred by § 25-218. The Hikes appealed.

         III. ASSIGNMENTS OF ERROR

         The Hikes assign, restated and reordered, that the court erred in (1) failing to judicially estop the State from raising the statute of limitations as a defense, (2) applying § 25-218 as the relevant statute of limitations, and (3) finding that their claim was time barred despite being raised in Hike I.

          [297 Neb. 216] IV. STANDARD OF REVIEW

         Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.[3] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the ...


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