Omaha Police Union Local 101 v. City of Omaha ( 2015 )

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Nebraska A dvance Sheets
292 Nebraska R eports
OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
Omaha Police Union Local 101, IUPA, AFL-CIO,
also known as Omaha Police Officers Association,
appellee and cross-appellant, v. City of Omaha,
a municipal corporation, appellant
and cross-appellee.
___ N.W.2d ___
Filed December 31, 2015. No. S-14-1153.
1. Contracts: Appeal and Error. The interpretation of a contract is a
question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations
made by the court below.
2. Trial: Witnesses: Judgments: Appeal and Error. A trial court’s factual
findings in a bench trial of an action at law have the effect of a jury
verdict and will not be set aside unless clearly erroneous. The trial court
is the sole judge of the witnesses’ credibility and the weight to be given
their testimony.
3. Equity: Appeal and Error. In an appeal in equity, the reviewing court
tries factual questions de novo on the record.
4. ____: ____. On appeal from an equity action, when credible evidence
is in conflict on material issues of fact, an appellate court considers and
may give weight to the fact that the trial court observed the witnesses
and accepted one version of the facts over another.
5. Estoppel: Words and Phrases. Equitable estoppel is a bar which
precludes a party from denying or asserting anything to the contrary
of those matters established as the truth by his or her own deeds, acts,
or representations.
6. Equity: Estoppel. The doctrine of equitable estoppel applies where,
as a result of conduct of a party upon which another person has in
good faith relied to his or her detriment, the acting party is absolutely
precluded, both at law and in equity, from asserting rights which might
have otherwise existed.
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
7. Waiver: Words and Phrases. A waiver is a voluntary and intentional
relinquishment or abandonment of a known existing legal right or such
conduct as warrants an inference of the relinquishment of such right.
8. Waiver: Estoppel. To establish a waiver of a legal right, there must be
a clear, unequivocal, and decisive act of a party showing such a purpose,
or acts amounting to an estoppel on his or her part.
9. Contracts: Waiver: Proof. A party may prove the waiver of a contract
by (1) a party’s express declarations manifesting the intent not to claim
an advantage or (2) a party’s neglecting and failing to act so as to induce
the belief that it intended to waive.
10. Waiver: Proof. The party asserting a waiver defense bears the burden of
establishing that a clear and unmistakable waiver has occurred.
11. Judgments: Equity: Proof. To be entitled to equitable relief from a
judgment, a party must show that the situation is not due to his or her
fault, neglect, or carelessness.
Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Affirmed.
Christopher R. Hedican, of Baird Holm, L.L.P., for appellant.
Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., for
appellee.
Heavican, C.J., Wright, Connolly, McCormack, Cassel,
and Stacy, JJ.
Wright, J.
NATURE OF CASE
The appellee and cross-appellant, the Omaha Police Union
Local 101, IUPA, AFL-CIO, also known as the Omaha Police
Officers Association (Union), filed a declaratory judgment
action against the appellant and cross-appellee, City of Omaha
(City). The Union requested the district court declare that the
collective bargaining agreement between the Union and the
City had rolled over to the 2014 calendar year. The Union
claimed that the City did not timely provide written notice
of its intent to negotiate or modify the terms of the contract
for 2014. The City argued that the Union’s action was barred
by the doctrines of waiver and equitable estoppel. It claimed
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
written notice was waived by the Union or the Union was
estopped from asserting that the City was required to give
written notice of its intent to negotiate changes to the contract.
We affirm the order of the district court granting declaratory
judgment to the Union and denying its request for attor-
ney fees.
SCOPE OF REVIEW
[1,2] The interpretation of a contract is a question of law,
in connection with which an appellate court has an obligation
to reach its conclusions independently of the determinations
made by the court below. Gaver v. Schneider’s O.K. Tire Co.,
289 Neb. 491, 856 N.W.2d 121 (2014). A trial court’s factual
findings in a bench trial of an action at law have the effect of
a jury verdict and will not be set aside unless clearly errone-
ous. The trial court is the sole judge of the witnesses’ cred-
ibility and the weight to be given their testimony. See Stauffer
v. Benson, 288 Neb. 683, 850 N.W.2d 759 (2014). This case
hinges on the applicability of the City’s equitable defenses,
and we consider the facts de novo on the record. See Estate of
McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d
461 (2003).
FACTS
The parties entered into an agreement which was to remain
in effect from December 14, 2008, until December 21, 2013
(Contract). The Contract contained an “evergreen clause”
(Article 47), which provided for an automatic extension of the
Contract if neither party notified the other of a desire to modify
or renegotiate any portion thereof. Article 47 provided:
This Agreement shall be and shall remain in full force
and effect from and after . . . December 14, 2008, until
. . . December 21, 2013, and thereafter for successive one
(1) calendar year periods, unless one of the parties hereto
on or before April 1st of any such year shall notify the
other party hereto in writing of its desire to modify the
same, or any part thereof.
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
Neither party disputes that Article 47 required written notice
of intent to negotiate changes by April 1, 2014, and that notice
was not provided by either party by that date. Consequently,
whether the district court erred in granting declaratory relief
depends upon whether it erred in rejecting the City’s equi-
table defenses.
The City’s argument concerns a series of exchanges
between the lead negotiators of the parties which occurred
before and after April 1, 2014. The first exchange between
the parties was a meeting on February 27. Attorney Mark
McQueen, the chief negotiator for the City, contacted Sgt.
John Wells, the president and lead negotiator of the Union, to
set up a meeting. The purpose of the meeting was to discuss
negotiation style and topics for negotiation. During the meet-
ing, McQueen discussed the City’s objectives for negotiat-
ing the Contract and identified three specific topics which
required discussion.
At this meeting, Wells expressed the Union’s desire to
allow the Contract to roll over in its entirety. The City charac-
terizes this as an “offer” on behalf of the Union to allow the
Contract to roll over. McQueen said that he would relay the
“offer” to decisionmakers and get back to Wells. McQueen
conveyed the Union’s desire to allow the Contract to roll over
to the City’s mayor and the city council’s law committee at its
next meeting.
In contrast to McQueen’s explanation of the February 27,
2014, exchange, Wells described the meeting as an informal
meeting to develop a working relationship for future negotia-
tions. Neither party mentioned written notice at the meeting.
The next contact was a brief telephone call on March 19,
2014. McQueen informed Wells that the City wanted to dis-
cuss three items: (1) the deferred option retirement plan, which
the parties refer to as “DROP”; (2) police cruisers’ being
taken home; and (3) a pension contribution by the Union of
$400,000. Wells indicated that he would relay the informa-
tion to the Union’s executive board and get back to McQueen.
McQueen testified that he understood his statements to Wells
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
during this telephone call to be a counteroffer to an initial offer
by the Union to allow the Contract to roll over. Wells did not
mention written notice in this call. There was no further con-
tact between the Union and the City before April 1.
The next exchange was a breakfast meeting on April 11,
2014, to discuss rules and procedures for future negotiations.
The three items from the March 19 telephone call were dis-
cussed. The City claimed that it understood this discussion to
pertain to the 2014 calendar year, whereas the Union claimed
these discussions were to create a workable atmosphere for
negotiations for the 2015 calendar year. At this meeting, Wells
requested written notice to open negotiations, but did not spec-
ify the year to which those negotiations pertained.
The next contact was a telephone call on April 16, 2014,
wherein McQueen informed Wells that he had heard from a
fire union official that Wells had made comments regarding
the City’s failure to provide written notice. The parties did not
agree as to what statements were made during this conversa-
tion. McQueen testified that Wells reassured him that there
must have been a misunderstanding and that the Union was not
going to take the position that a rollover had occurred. Wells
testified that he never gave McQueen such assurances, but
also did not expressly state to McQueen that the Union did,
in fact, intend to invoke Article 47 to impose a rollover of the
Contract in its entirety for 2014.
On April 17, 2014, the City sent written notice via e-mail to
open negotiations. Wells informed McQueen that this language
was acceptable. This communication did not identify 2014 as
the year for which the Contract was being negotiated. The fol-
lowing day, the parties met to discuss rules for negotiation. No
mention of negotiations for 2015 was made in the record of
this meeting. The Union did not express its position that the
Contract had rolled over.
On May 6, 2014, McQueen attended as an observer of
a meeting between Wells, certain Union officers, and the
chief and deputy chief of police. At some point during the
meeting, the issue of taking police cruisers home arose.
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
McQueen interjected that the City could implement that change
unilaterally.
Following this meeting, on May 15, 2014, the Union sent
the City a letter that the Contract had rolled over for the 2014
calendar year. This was the first time that the Union conveyed
its position definitively to the City. The Union claimed that
all negotiations were for 2015 and that any changes to the
Contract for 2014 would require a memorandum of under-
standing agreed to by both parties. The City claimed that
the exchanges beginning on February 27 were negotiations
for changes to the Contract and that both parties understood
these negotiations to be in regard to the 2014 calendar year. It
claimed that in the past, the City had conducted such negotia-
tions without written notice.
The Union filed a complaint against the City pursuant
to the Uniform Declaratory Judgments Act, Neb. Rev. Stat.
§ 25-21,149 et seq. (Reissue 2008). It requested that the dis-
trict court construe Article 47 to extend the Contract through
the 2014 calendar year and declare the rights and duties of the
parties. The Union claimed that the language of the Contract
provided a binding date for exchange of written notice to com-
mence negotiations. The Union also claimed that the City had
engaged in bad faith and requested attorney fees pursuant to
Neb. Rev. Stat. § 25-824 (Reissue 2008).
In its answer, the City asserted the defenses of equitable
estoppel and waiver. It claimed that the Union was estopped to
assert that the City did not provide written notice because of
statements made by Wells which led the City to believe such
written notice was not required. Additionally, the City claimed
that the Union had waived any such written notice require-
ments by engaging in negotiations both before and after April
1, 2014.
The City filed a counterclaim asserting that if the district
court agreed with the Union’s position, then the Contract had
also rolled forward to the end of 2015. It claimed that the
language of Article 47 required written notice by April 1 of
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the year prior to whichever year was being modified. Thus, it
claimed that written notice was required by April 1, 2013, to
negotiate for 2014, and by April 1, 2014, to negotiate for 2015.
It claimed that if the court found that the Contract rolled over
for the 2014 calendar year, it must also find that it rolled for-
ward for the 2015 calendar year.
The district court rejected the City’s equitable defenses. It
also rejected the City’s interpretation regarding Article 47 that
would require written notice to be provided by April 1 of the
year prior to the year being negotiated. It found that in order
to negotiate for the 2014 calendar year, written notice was
required by April 1, 2014.
In rejecting the City’s estoppel defense, the court reasoned
that the City could not have detrimentally relied upon the
Union’s conduct in failing to provide written notice of intent
to negotiate. In the City’s pleadings and in the testimony of
McQueen, the mayor, and the City’s labor relations director,
the City showed its understanding of Article 47 was that writ-
ten notice was required by April 1, 2013—not April 1, 2014—
to prevent a rollover through 2014. Thus, at all operative times,
the City believed that the Contract had already rolled over in
its entirety pursuant to Article 47. Moreover, the court found
that the Union did not make a clear and unmistakable waiver
of Article 47.
The district court denied the Union’s request for attorney
fees. The parties timely appealed.
ASSIGNMENTS OF ERROR
The City assigns, consolidated and restated, that the district
court erred in granting declaratory relief to the Union and
in denying the City’s equitable defenses. In its cross-appeal,
the Union claims that the district court erred in denying its
request for attorney fees.
ANALYSIS
We consider whether the district court erred in granting
judgment to the Union and in rejecting the City’s equitable
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
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defenses of waiver and estoppel. The parties do not dispute
that Article 47 required written notice of intent to open nego-
tiations by April 1, 2014, to prevent an automatic rollover and
that neither party provided such written notice by that date.
The issue is whether the Union was estopped to assert the pro-
vision of Article 47 or whether the Union waived the require-
ment of Article 47.
[3,4] In an appeal in equity, the reviewing court tries fac-
tual questions de novo on the record. See State ex rel. Dept.
of Health v. Jeffrey, 247 Neb. 100, 525 N.W.2d 193 (1994).
On appeal from an equity action, when credible evidence is in
conflict on material issues of fact, an appellate court considers
and may give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over another.
Twin Towers Condo. Assn. v. Bel Fury Invest. Group, 290 Neb.
329, 860 N.W.2d 147 (2015).
The City argues that because the district court did not make
specific findings regarding the credibility of the witnesses,
there is no factual determination to which this court may give
weight. This argument mischaracterizes the district court’s rul-
ing. In determining whether the Union’s conduct constituted a
waiver of Article 47 or whether the doctrine of equitable estop-
pel applied, the court necessarily relied upon the testimony of
the witnesses. The exchanges between the parties were either
face-to-face or via telephone conversations, and the court con-
sidered testimony from the witnesses to discern what transpired
during those conversations. Moreover, the witnesses typically
gave differing characterizations of the exchanges. Therefore,
in reaching its conclusions, the court determined the cred-
ibility of the witnesses and accepted one version of the facts
over another.
The City claims that declaratory judgment should have been
denied, because the Union participated in negotiations both
before and after April 1, 2014, and was therefore estopped to
claim the City failed to provide written notice or the Union
waived the requirements of Article 47.
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
Cite as 292 Neb. 381
Equitable Estoppel
[5,6] Equitable estoppel is a bar which precludes a party
from denying or asserting anything to the contrary of those
matters established as the truth by his or her own deeds, acts,
or representations. Berrington Corp. v. State, 277 Neb. 765,
765 N.W.2d 448 (2009). The doctrine applies where, as a
result of conduct of a party upon which another person has
in good faith relied to his or her detriment, the acting party is
absolutely precluded, both at law and in equity, from asserting
rights which might have otherwise existed. Burns v. Nielsen,
273 Neb. 724, 732 N.W.2d 640 (2007).
The elements of equitable estoppel are, as to the party
estopped: (1) conduct which amounts to a false representation
or concealment of material facts, or at least which is calculated
to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
to assert; (2) the intention, or at least the expectation, that
such conduct shall be acted upon by, or influence, the other
party or other persons; and (3) knowledge, actual or construc-
tive, of the real facts. Farmington Woods Homeowners Assn.
v. Wolf, 284 Neb. 280, 817 N.W.2d 758 (2012). As to the
other party, the elements are: (1) lack of knowledge and of the
means of knowledge of the truth as to the facts in question; (2)
reliance, in good faith, upon the conduct or statements of the
party to be estopped; and (3) action or inaction based thereon
of such a character as to change the position or status of the
party claiming the estoppel, to his or her injury, detriment, or
prejudice. Id.
The City argues that the Union is estopped from asserting
the City’s noncompliance with Article 47, because the Union
engaged in negotiations to modify the Contract for 2014 both
before and after April 1, 2014, and asked for written notice
only after the deadline had passed. It claims the Union’s con-
duct induced the City into believing that the Union would
engage in negotiations without written notice and that, there-
fore, the City did not provide written notice as a result.
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
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The evidence showed that Wells told the City that the Union
intended to “stand by” the Contract and that it desired the
Contract to roll over. Moreover, the City understood Article
47 to require written notice by April 1, 2013, to prevent a roll-
over for the 2014 calendar year. Therefore, the City could not
have relied to its detriment on the Union’s actions beginning
in February 2014, in which it stated that it wanted the Contract
to extend through 2014.
There was considerable disagreement between the parties
concerning the exchanges between Wells and McQueen. Both
parties characterize the conversations differently. However,
even accepting the City’s characterization of the facts, it has
not shown that it reasonably relied to its detriment on the
Union’s conduct in allowing the April 1, 2014, deadline to pass.
The City asserted in its counterclaim that Article 47 required
that either party must give written notice of intent to modify
the contract on or before April 1 of the year during which
the contract expires. According to this interpretation, to open
negotiations for the 2014 calendar year, a party was obli-
gated to notify the other in writing of the desire to modify
the Contract prior to April 1, 2013. McQueen, the mayor, and
the City’s labor relations director all interpreted Article 47
in this manner. Consequently, the City believed that the time
to provide written notice to open negotiations for 2014 had
expired 11 months before the initial exchange at the meeting
on February 27, 2014, and more than a year before the City
provided written notice on April 17, 2014.
The district court rejected the City’s interpretation and held
that the deadline to provide written notice to negotiate for the
2014 calendar year was April 1, 2014. Because the City, as
shown by its pleadings and witness testimony, believed that
written notice for the 2014 calendar year had to be given by
April 1, 2013, the trial court did not err in concluding that the
City could not have detrimentally relied on Wells’ statements
during the meeting on February 27, 2014, or in the March 19
telephone call.
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA
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The City claims that Wells did not inform McQueen prior
to April 1, 2014, that the Union desired written notice to pre-
vent the operative effect of Article 47. It suggests that this
inaction was deceptive in that it led the City to believe such
requirement had been waived. We reject this argument. Wells
was not under a duty to disclose the requirements of Article
47. Declining to expressly request that the City follow the
terms of Article 47 did not amount to a misrepresentation. At
the February 27 meeting, the Union informed the City that it
wanted the Contract to extend for another year. And at that
time, the City believed the time to provide written notice to
negotiate for 2014 had expired. We conclude that the City has
failed to establish the required elements of equitable estoppel.
Waiver of A rticle 47
We next consider whether the Union waived Article 47. The
City argues that the Union, through its conduct, waived the
requirement of written notice to open negotiations. It claims
that the parties engaged in negotiations before and after April
1, 2014, and that each party understood the negotiations to be
in regard to the 2014 calendar year. The Union asserts that it
did not clearly and unmistakably waive Article 47.
[7-10] A waiver is a voluntary and intentional relinquish-
ment or abandonment of a known existing legal right or such
conduct as warrants an inference of the relinquishment of
such right. Davenport Ltd. Partnership v. 75th & Dodge I,
L.P., 279 Neb. 615, 780 N.W.2d 416 (2010). To establish a
waiver of a legal right, there must be a clear, unequivocal,
and decisive act of a party showing such a purpose, or acts
amounting to an estoppel on his or her part. State ex rel.
Wagner v. Amwest Surety Ins. Co., 280 Neb. 729, 790 N.W.2d
866 (2010). A party may prove the waiver of a contract by
(1) a party’s express declarations manifesting the intent not
to claim an advantage or (2) a party’s neglecting and fail-
ing to act so as to induce the belief that it intended to waive.
D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d
1 (2010). The party asserting a waiver defense bears the
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burden of establishing that a clear and unmistakable waiver
has occurred. See Hogelin v. City of Columbus, 274 Neb. 453,
741 N.W.2d 617 (2007).
The City argues that the parties were negotiating despite
neither having provided the other with written notice and that,
therefore, the Union had waived Article 47. To support this
position, it cites to various points in the testimony of Wells and
McQueen to suggest that they both understood the exchanges
to be negotiations for 2014.
The Union argues that once the deadline passed, Wells and
its negotiators understood the subsequent exchanges to be on
a voluntary basis and would require a memorandum of under-
standing to implement any changes, or pertained to the 2015
calendar year. It claims that it never led the City to believe
written notice was not required. The district court found that
the Union did not wish to renegotiate the Contract for 2014,
but would agree to a memorandum of understanding with
respect to the “take home car” issue.
Although the parties focus much on the events after April
1, 2014, our decision hinges on the two exchanges prior to
April 1. These exchanges occurred in a face-to-face meeting
on February 27 and in a brief telephone conversation on March
19. The City inferred that these exchanges negated the written
notice requirement of Article 47. We consider the subsequent
exchanges between the parties only to the extent that they
demonstrate whether Article 47 was clearly and unmistakably
waived in either of the meetings prior to April 1.
The parties agree that during the February meeting, Wells
conveyed to McQueen the Union’s desire to allow the Contract
to roll over in its entirety by neither party sending notice. The
City claims that this was an “offer” which commenced nego-
tiations. However, in a meeting between the parties on May
18, 2014, McQueen refers to this as a “suggestion” to roll the
Contract over, which surprised McQueen.
Whether the City refers to this communication as an “offer”
or an expression of the Union’s desire, it did not have the
effect of clearly and unmistakably waiving the requirements
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of Article 47. A waiver would be against the interest of the
Union, which wanted the Contract to extend through 2014.
Moreover, Wells informed McQueen that he was unable to
agree to anything without review from his executive board.
Thus, beyond his communication of the Union’s position that
it desired the contract to extend through 2014, Wells did not
suggest at the February meeting that the Union had waived
Article 47. It would be absurd to hold that the Union’s expres-
sion of its desire to allow the Contract to roll over was, in
fact, a waiver of Article 47’s operative effect. Nor does the
record support that such “offer” was intended to lull the City
into inaction.
The only other contact between the parties prior to April
1, 2014, was on March 19. This was a brief telephone con-
versation between Wells and McQueen. Wells and McQueen
testified this conversation was in response to the February
discussion. The conversation occurred while Wells was at an
airport and picking up his luggage. Wells stated that McQueen
informed him that the City would allow a rollover if they could
discuss the three issues (take-home cars, the interest rate of the
DROP program, and additional pension contribution).
Although McQueen testified that this was a “counteroffer”
and that its conditions must be met for the City to otherwise
allow the remainder of the Contract to roll over, the City did
not memorialize or confirm this communication in a subse-
quent writing. For the sake of recordkeeping, this is inexpli-
cable. McQueen testified he understood the exchanges to this
point to be that the Union offered to allow a rollover and that
the City counteroffered for the three conditions.
Wells testified he understood McQueen’s statements to mean
that the City desired some changes to allow a rollover. He
again stated to McQueen that he could not agree unilaterally
to anything and that any change would need to be approved
through the executive board. He did not expressly state that the
Union had waived or intended to waive Article 47.
Beyond McQueen’s testimony regarding this brief telephone
conversation, we find no indication in the record that the
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Union clearly and unmistakably waived Article 47. On the
contrary, it appears that such unilateral waiver would have
exceeded Wells’ negotiating authority and been detrimental
to the Union’s intent to allow the Contract to roll over in
its entirety. The record including the telephone call does not
establish that the Union waived the required written notice.
The next meeting between the parties was on April 11, 2014,
10 days after the deadline to provide written notice had passed.
The parties discussed the three issues which McQueen brought
to Wells’ attention in the March 19 telephone conversation. The
parties also discussed rules and protocol for negotiations. Wells
provided McQueen a copy of what had been used in prior
negotiations. Neither party stated to what year these rules and
protocols would apply.
Later that day, McQueen had a conversation with a fire
union official who informed him that Wells told the fire union
official that the City had made a serious mistake by not send-
ing written notice. In an April 16, 2014, conversation between
Wells and McQueen, Wells did not specifically tell McQueen
that the Union intended to take the position that the Contract
had rolled over.
On April 17, 2014, written notice was sent by McQueen and
accepted by Wells. Inexplicably, neither party specified the
year to which the notice applied. The parties met the follow-
ing day. The minutes of that meeting do not state which year
the parties were discussing, nor do they discuss the Contract
rollover or Article 47. The minutes indicate that the parties
discussed only the three issues McQueen raised on March 19.
Both Wells and McQueen signed off on the minutes. In an
April 18 e-mail, Wells stated: “We are getting underway on our
negotiations with the City. . . . We are discussing some unre-
solved issues before we get started on overall negotiations.”
Again, there is no reference to a year for which the parties
were negotiating.
On May 6, 2014, the parties met to discuss the issues, but
again did not specify the year. The Union did not expressly
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communicate that the Contract had rolled over, nor did it
expressly waive Article 47. Nor did the City state its position
that the Union had waived Article 47 and that the parties were
negotiating for the 2014 calendar year.
We conclude that the City did not meet its burden to show
the Union waived Article 47 regarding the 2014 calendar year.
Undoubtedly, the exchanges between Wells and McQueen led
to ambiguity and misunderstanding between the parties, but
ambiguity is not the standard for waiver of a contractual right.
The purported waiver must be clear and unmistakable. The
record does not show that the Union’s conduct rose to the level
of a waiver of Article 47.
Nor did the Union’s conduct in tacitly allowing the City to
fail to meet the deadline to provide written notice amount to
a waiver of such written notice. Wells had no duty to inform
McQueen that the Union required written notice to open nego-
tiations. The plain language of Article 47 served that purpose.
And we find no indication that the Union’s conduct induced
the City into believing that the Union had waived the written
notice requirement.
Further foreclosing on the City’s argument that the Union’s
conduct waived Article 47 was the City’s belief, nearly a year
prior to the initial meeting between Wells and McQueen, that
the Contract was extended through 2014. Based on the City’s
understanding of Article 47, the City should have believed that
the Union was negotiating for 2015. If the City interpreted
Article 47 to require written notice by April 1, 2013, to open
negotiations for 2014, by the time it issued its “counteroffer”
to the Union on March 19, 2014, the supposed deadline had
been expired for nearly a year. It would be unreasonable for the
City to believe that the Union waived Article 47 nearly a year
after April 1, 2013, despite the Union’s express statement that
it wanted the Contract to roll over to 2014.
In support of its waiver defense, the City relied upon Hornig
v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000).
In that case, we affirmed a district court’s order vacating the
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dismissal of an action and reinstating it under the court’s inher-
ent equitable authority. The action had been dismissed on April
1, 1997. In January 1998, the appellants refused to stipulate to
a reinstatement. The appellants argued that the appellees failed
to exercise due diligence in seeking reinstatement and, there-
fore, were not entitled to reinstatement. However, we noted the
appellees had continued to participate in discovery, including
participating in depositions and sending substantial amounts of
materials to the appellees. Moreover, it rescheduled the depo-
sition of its own expert numerous times. In January 1998, the
appellants’ counsel took advantage of the situation which he
helped create by refusing to stipulate to reinstatement.
We concluded that although the appellees’ counsel perhaps
should have been more zealous, we could not condone the
appellants’ apparent strategy of “I gotcha.” We held: “When
the equities are balanced in this case, it is clear that appel-
lants’ ‘I go[t]cha’ tactic entitled the [appellees] to equitable
relief. To conclude otherwise would be to reward appellants
for taking advantage of a situation which they helped create.”
Id. at 775, 606 N.W.2d at 772. Given the appellants’ conduct,
we found that it was reasonable for the appellees to believe
the appellants would stipulate to a reinstatement. Thus, we
concluded that the appellants’ conduct prevented them from
benefiting under the maxim that “equity aids the diligent,
not those who sleep on their rights.” Id. at 771, 606 N.W.2d
at 770.
We do not find the case at bar to be analogous to Hornig.
Whereas in Hornig, the appellants’ sustained participation in
extensive discovery was unequivocally inconsistent with a
position that it would not stipulate to a reinstatement of the
case, we find no such conduct here. The clear and unmistak-
able conduct in Hornig clearly lulled the appellees into repose
on diligently and timely seeking such reinstatement. Here, the
City could not have been reasonably lulled into repose by the
Union’s expression on February 27, 2014, that it intended to
allow the Contract to roll over. Nor do we find that McQueen’s
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oral “counteroffer” during the telephone call on March 19
could have reasonably led the City to believe the Union was
waiving Article 47. The record shows none of the unequivocal
and documented conduct that existed in Hornig.
[11] To be entitled to equitable relief from a judgment, a
party must show that the situation is not due to his or her
fault, neglect, or carelessness. State on behalf of L.L.B. v. Hill,
268 Neb. 355, 682 N.W.2d 709 (2004). In this case, neither
party clearly expressed its statements in the meetings and
communications prior to May 15, 2014. By including Article
47 in the Contract, the parties intended to prevent ambiguity
concerning one party’s intentions by requiring written notice.
As the party desiring to modify the Contract, the City had the
duty to provide such written notice. The record does not show
that the conversations between Wells and McQueen prior to
April 1 justified the City’s belief that it did not need to comply
with Article 47. The Union’s stated intention was to allow the
Contract to extend for another year.
Attorney Fees
Finally, we conclude that the district court did not abuse
its discretion in ordering the parties to pay their own attorney
fees. The City failed to meet its burden of showing its equi-
table defenses. But the City’s interpretation of the Union’s
conduct was not so wholly without merit as to be frivolous or
in bad faith.
CONCLUSION
For the reasons stated above, we affirm the order of the
district court granting declaratory judgment to the Union and
ordering the parties to pay their own attorney fees.
A ffirmed.
Miller-Lerman, J., not participating.