Woodard v. City of Lincoln

Connolly, J.,

dissenting.

I conclude that there is no genuine issue of material fact that would give rise to equitable estoppel in the instant case, and therefore, I respectfully dissent.

The majority concludes that there is a genuine issue of material fact as to whether the City had indicated that formal legal proceedings and rules were going to govern the Woodards’ claim and, thus, whether the statute of limitations would apply. This conclusion is based entirely on the “Letter of Understanding” between Philip and the City, and Philip’s affidavit as to his understanding of that letter. The letter of understanding provided that the City would make voluntary payments to the Woodards, but that these payments would stop if either side retained counsel. The letter also indicated that it was not an admission of liability by the City and that the Woodards could claim damages in the future. Thus, the letter of understanding indicated that no litigation would be necessary to the extent that the City was willing to make voluntary payments.

Had the City continued to make such voluntary payments until the statute of limitations had run, the Woodards’ claim might conceivably have merit. However, in the instant case, the City stopped making voluntary payments on April 28, 1993, more than a year prior to the expiration of the statute of limita*73tions. Thus, the City stopped communicating the impression that the statute of limitations would not apply as of April 28, long before the statute of limitations had run. Accordingly, as of April 28, the City’s conduct or statement could not amount to a false representation or concealment of material facts, or have been calculated to convey or import the impression that the facts were otherwise than, and inconsistent with, those which the City subsequently attempted to assert. In other words, “all bets were off.” The letter of understanding could not, as a matter of law, indicate to the Woodards that the City would not assert the statute of limitations as a defense.

Indeed, Philip’s own act would appear to acknowledge as much, since he did not file a written notice of claim with the City until shortly after the City stopped making voluntary payments pursuant to the letter of understanding. This action indicates that Philip himself had recognized that the “rules of the game” had already changed and that legal rules now applied. It is difficult to see how Philip could simultaneously assert that he, in good faith, believed that formal legal proceedings and rules were not to govern his claim against the City and, yet, feel compelled to send a written notice of claim by a certified letter. If Philip believed that “no petition need be filed at all,” as the majority asserts, then why file a written notice of claim?

The Nebraska Court of Appeals was correct in affirming the trial court’s order, and I would affirm.

Wright and Stephan, JJ., join in this dissent.