Leo W. Hike, Jr., and Joanna K. Hike, appellants,
State of Nebraska Department of Roads, appellee.
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
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.
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.
Limitations of Actions. The determination of
which statute of limitations applies is a question of law.
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.
Complaints. Whether a complaint states a
cause of action is a question of law.
Judgments: Appeal and Error. Appellate
courts independently review questions of law decided by a
Equity: Estoppel. Judicial estoppel is an
equitable doctrine that a court invokes at its discretion to
protect the integrity of the judicial process.
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.
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.
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.
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
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.
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.
Limitations of Actions. Neb. Rev. Stat.
§ 25-202 (Reissue 2016) is not a special statute of
limitations, but only a general statute of limitations.
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.
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).
Actions: Words and Phrases. Bringing an
action means to sue or institute legal proceedings.
Appeal and Error. Errors argued but not
assigned will not be considered on appeal.
. 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.
Neb. 214] Appeal from the District Court for Sarpy County:
William B. Zastera, Judge. Affirmed.
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
Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and
NATURE OF CASE
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.
the second case between the Hikes and the State. In the first
case, Hike v. State (Hike 7),  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.
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 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.
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
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.
ASSIGNMENTS OF ERROR
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.
Neb. 216] IV. STANDARD OF REVIEW
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. In reviewing a summary judgment,
an appellate court views the evidence in the light most
favorable to the party against whom the ...