Hike v. State ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/18/2017 01:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
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HIKE v. STATE
Cite as 297 Neb. 212Leo W. Hike, Jr., and Joanna K. Hike,
appellants, v. State of Nebraska
Department of Roads, appellee.
___ N.W.2d ___
Filed July 14, 2017. No. S-16-593.
1. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose no genuine issue regard-
ing 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 limita-
tions 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 judi-
cial process.
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HIKE v. STATE
Cite as 297 Neb. 2129. Estoppel. The doctrine of judicial estoppel protects the integrity of the
judicial process by preventing a party from taking a position incon­
sistent with one successfully and unequivocally asserted by the same
party in a prior proceeding.
10. Estoppel: Intent. Fundamentally, the intent behind the doctrine of judi-
cial 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 compensa-
tion 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 limi-
tations controls and takes precedence over a general statute of limita-
tions 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 insti-
tute legal proceedings.
19. Appeal and Error. Errors argued but not assigned will not be consid-
ered 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.
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HIKE v. STATE
Cite as 297 Neb. 212Appeal 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, K elch, 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 con-
demnation 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 I),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 prop-
erty 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 inde-
pendent 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
1
Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (2014).
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Cite as 297 Neb. 212Hikes’ 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 struc-
tural damage and that they intended to call their expert wit-
nesses 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 con-
cerning the structural damage.
After the jury verdict, the Hikes timely appealed, alleging,
among other things, that the district court erred by not allow-
ing 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 claim-
ing 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 dis-
missed 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.
2
Id. at 75, 846 N.W.2d at 219.
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Cite as 297 Neb. 212IV. STANDARD OF REVIEW
[1,2] 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 judg-
ment, 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.4
[3] An appellate court reviews a court’s application of judi-
cial estoppel to the facts of a case for abuse of discretion and
reviews its underlying factual findings for clear error.5
[4-6] The determination of which statute of limitations
applies is a question of law.6 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.7 Whether a complaint
states a cause of action is a question of law.8
[7] Appellate courts independently review questions of law
decided by a lower court.9
3
Strode v. City of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016).
4
Id.5
deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).
6
Lindner v. Kindig, 293 Neb. 661, 881 N.W.2d 579 (2016).
7
Strode, supra note 3.
8
See Broad v. Randy Bauer Ins. Agency, 275 Neb. 788, 749 N.W.2d 478(2008). See, also, Pinnacle Bank v. Darland Constr. Co., 270 Neb. 978,
709 N.W.2d 635 (2006) (whether complaint states claim is reviewed de
novo).
9
Douglas County v. Archie, 295 Neb. 674, 891 N.W.2d 93 (2017).
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HIKE v. STATE
Cite as 297 Neb. 212V. ANALYSIS
1. State Is Not Judicially Estopped
From Asserting Statute of
Limitations Defense
The Hikes argue that the State is judicially estopped from
asserting a statute of limitations defense, because in Hike I,
the State successfully argued that the present claim had to be
brought as a separate action. The State asserts that its argument
in Hike I, that the Hikes’ evidence of structural damage was
inadmissible because it was neither proximately caused by the
condemnation nor relevant to the elements of a condemnation
action, is not inconsistent with its current statute of limita-
tions defense.
[8-10] Judicial estoppel is an equitable doctrine that a
court invokes at its discretion to protect the integrity of the
judicial process.10 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 proceed-
ing.11 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.12
We have held that bad faith or an actual intent to mislead
on the part of the party asserting inconsistent positions must
be demonstrated before the judicial estoppel doctrine may
be invoked.13
[11] In Hike I, the Hikes sought to recover compensation
for the State’s acquisition of 1.05 acres of their property by
10
deNourie & Yost Homes, supra note 5.
11
Id.12
Id.13
Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d
105 (2015). See, also, 28 Am. Jur. 2d Estoppel and Waiver § 68 (2011).
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Cite as 297 Neb. 212eminent domain. “Eminent domain is ‘“[t]he inherent power
of a governmental entity to take privately owned property,
esp[ecially] land, and convert it to public use, subject to rea-
sonable compensation for the taking.”’”14 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.15 In a condemnation action, there
are two elements of damage: (1) market value of the land
taken or appropriated and (2) diminution in value of the land
remaining, less special benefits.16
While the Hikes attempted to offer evidence of the structural
damage to their home at the trial on their condemnation action,
they did not seek leave to amend their complaint to assert
a separate claim of inverse condemnation and, instead, pro-
ceeded under their initial complaint. As a result, the trial court
excluded the evidence of the structural damage.
On appeal, we held that although the Hikes may have had
a remedy with respect to any such structural damage, it was
not compensable in the condemnation proceeding because the
damage occurred after the taking by eminent domain and the
damage was not the proximate result of that taking.17
In this appeal, the Hikes argue that the State has taken
a position inconsistent with the one they successfully and
unequivocally asserted in their prior proceeding. Specifically,
the Hikes argue that in Hike I, the State asserted that the
Hikes should have properly brought their claim of structural
damage as a separate action and then, in this appeal, the State
14
Hike I, supra note 1, 288 Neb. at 66, 846 N.W.2d at 213, quoting Pinnacle
Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588 (2013),
quoting Black’s Law Dictionary 601 (9th ed. 2009).
15
See Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486(2013).
16
Moyer v. Nebraska City Airport Auth., 265 Neb. 201, 665 N.W.2d 855(2003).
17
Hike I, supra note 1.
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Cite as 297 Neb. 212asserted that the separate action was time barred. However,
the Hikes’ contention is without merit.
In making this argument, the Hikes ignore the State’s legal
contentions that directly addressed why the evidence of struc-
tural damage was inadmissible. Specifically, the State con-
tended that (1) the evidence was not relevant to the elements
of the condemnation proceeding, (2) the evidence could not
be shown to have been proximately caused by the condemna-
tion, (3) the presentation of the evidence would unnecessar-
ily delay the trial, and (4) the evidence would be prejudicial
to the determination of damages for the condemnation. The
district court’s ruling merely determined the admissibility of
the evidence in Hike I. It was unnecessary for the court to
consider the Hikes’ ability to bring their claim as a separate
action at that time or in the future, nor did the court make
such a ruling.
Further, the State’s assertion that the Hikes’ evidence of
structural damage was inadmissible was not inconsistent with
its current statute of limitations defense. When the court entered
its order on the motion in limine on July 16, 2012, the Hikes
still had more than 1 year to bring their inverse condemnation
claim. Instead of timely filing an action to assert their inverse
condemnation claim, the Hikes chose to pursue a remedy for
the structural damage solely through an appeal. The Hikes’
choice of how to proceed was not mandated by the State’s
assertion or the trial court’s ruling.
The Hikes point to our holding in Sports Courts of Omaha
v. Meginnis18 to argue that they were precluded from filing
a separate action while their appeal from the district court’s
decision in Hike I was pending. In Sports Courts of Omaha,
we recognized that Nebraska case law generally holds that
once an appeal has been perfected, the trial court is divested
of its jurisdiction to hear a case involving the same matter
18
Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38(1993).
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Cite as 297 Neb. 212between the same parties.19 However, this rule is not appli-
cable in all circumstances, and Sports Courts of Omaha illus-
trated one such exception.20
In Sports Courts of Omaha, the plaintiff sued two defend­
ants in the Douglas County District Court, seeking damages on
a breach of a promissory note. The action was dismissed for
want of prosecution, and the plaintiff appealed. While the mat-
ter was on appeal, the plaintiff sued one of the two defendants
in the Lancaster County District Court in an action essentially
identical to the Douglas County case. The Lancaster County
District Court dismissed the action on several grounds, includ-
ing that it lacked subject matter jurisdiction because of the
pending appeal from Douglas County.
On appeal, we held that because the plaintiff’s appeal
before us involved an action maintained in a court distinct
from the site of the previous action, our general rule of
divested jurisdiction was inapplicable to preclude the dis-
trict court’s jurisdiction over the plaintiff’s Lancaster County
action.21 Therefore, we determined that the Lancaster County
District Court had subject matter jurisdiction to consider the
plaintiff’s suit against the one defendant and that the court
erroneously concluded that it lacked jurisdiction to dispose
of the case.22 The Hikes’ reliance on Sports Courts of Omaha
is misplaced.
19
See id. Accord In re Interest of Becka P. et al., 296 Neb 365, 894 N.W.2d
247 (2017).
20
See Sports Courts of Omaha, supra note 18. See, also, Spady v. Spady, 284
Neb. 885, 824 N.W.2d 366 (2012) (district court had jurisdiction to award
temporary alimony while appeal was pending); Russell v. Kerry, Inc., 278
Neb. 981, 775 N.W.2d 420 (2009) (trial judge of Workers’ Compensation
Court has continuing jurisdiction to enforce employer’s obligation to pay
benefits pending employer’s appeal of previous order imposing penalty
and costs for delayed payment).
21
Id.22
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Cite as 297 Neb. 212In this matter, the Hikes had the option to file a separate
action after the trial court ruled on the State’s motion in limine,
but they chose to wait and file an appeal instead. Further, the
filing of the appeal neither precluded the Hikes from bringing a
separate action for inverse condemnation nor divested the dis-
trict court of subject matter jurisdiction to hear such an action.
Finally, the Hikes assert that judicial estoppel should apply
because, on appeal in Hike I, the State maintained its conten-
tion that the evidence of structural damage should have been
brought as a separate claim after the statute of limitations had
run. However, our review on appeal considered only the dis-
trict court’s ruling in limine when it was made. Accordingly,
it is irrelevant that the statute of limitations had run when the
State made its argument before this court, because its argu-
ment concerned the facts in existence at the time of the district
court’s ruling in limine. Further, our decision rested only on
the admissibility of the evidence. As a result, the existence of
additional remedies available to the Hikes for their structural
damage was beyond our consideration.
We conclude that the State’s contentions in Hike I do not
support the application of judicial estoppel in this appeal.
2. Hikes’ Claim Is Barred by
Statute of Limitations
(a) Inverse Condemnation Actions Against
State Are Subject to 2-Year
Statute of Limitations
[12] The Hikes argue that the district court incorrectly
applied § 25-218, instead of Neb. Rev. Stat. § 25-202 (Reissue
2016), to determine the applicable statute of limitations for
their inverse condemnation claim. 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.23
23
Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014).
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Cite as 297 Neb. 212The relevant portion of § 25-218 reads as follows: “Every
claim and demand against the state shall be forever barred
unless action is brought thereon within two years after the
claim arose.”
The relevant portion of § 25-202 reads as follows: “An
action for the recovery of the title or possession of lands, tene-
ments, or hereditaments, or for the foreclosure of mortgages or
the foreclosure of deeds of trust as mortgages thereon, can only
be brought within ten years after the cause of action accrues.”
First, the Hikes contend that the application of § 25-218 in
Bordy v. State24 and Czarnick v. Loup River P. P. Dist.25 has
been superseded by the application of § 25-202 in Krambeck
v. City of Gretna26 and Steuben v. City of Lincoln27 to inverse
condemnation claims. Second, they assert that § 25-202 should
apply, because it is more specific to claims of inverse condem-
nation than § 25-218.
The State contends that Krambeck and Stueben are distin-
guishable from this current appeal, because those cases did
not involve claims against the State. It also contends that
§ 25-218 is more specific than § 25-202, because the inverse
condemnation claim herein is against the State.
In Bordy and Cznarick, we held that under § 25-218, a suit
against the State for the taking or damaging of private prop-
erty for public use must be commenced within 2 years from
the time the taking or damaging of the property occurred.28 In
Krambeck and Stueben, we held that actions commenced under
article I, § 21, are subject to a 10-year statute of limitations
under § 25-202.29
24
Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (1943).
25
Czarnick v. Loup River P. P. Dist., 190 Neb. 521, 209 N.W.2d 595 (1973).
26
Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977).
27
Steuben v. City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (1996).
28
See Bordy, supra note 24, and Czarnick, supra note 25.
29
See Krambeck, supra note 26, and Steuben, supra note 27.
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Cite as 297 Neb. 212All four cases cited by the parties concerned the applicable
statute of limitations for inverse condemnation actions. While
Krambeck and Stueben are more recent, the State is correct
in its contention that they are factually distinguishable from
Bordy, Czarnick, and the instant case. The inverse condemna-
tion actions in Krambeck and Stueben were instituted against
a local power district and a city, respectively, not the State.
Because the actions in Krambeck and Stueben were not against
the State, § 25-218 did not apply by its express terms and, as a
result, we did not address that statute.
Nevertheless, we recognize that in Bordy and Czarnick, we
did not expressly analyze whether § 25-202 should apply over
§ 25-218. Accordingly, we consider the parties’ arguments con-
cerning the applicable statute of limitations here.
[13] In determining which statute of limitations applies in
a particular case, we have established the principle that a spe-
cial 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.30
[14] Though article I, § 21, is a self-executing provision
of the Constitution, which authorizes a landowner to bring an
action in inverse condemnation,31 it is enforced procedurally
through the eminent domain statutes.32 However, in Krambeck,
we recognized that our eminent domain statutes do not provide
a special statute of limitations, so we explained that “‘[i]n
the absence of special statutory provisions regulating the time
within which an owner must pursue his remedy, the time
30
See Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006).
See, also, Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143 (2015)
(where general and special provisions of statutes are in conflict, general
law yields to special provision or more specific statute).
31
Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401(1994), disapproved on other grounds, Scofield v. State, 276 Neb. 215, 753
N.W.2d 345 (2008).
32
See Neb. Rev. Stat. § 76-701 et seq. (Reissue 2009 & Cum. Supp. 2016).
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Cite as 297 Neb. 212prescribed by the general statutes of limitations will ordinar-
ily apply . . . .’”33
Accordingly, we considered which of two general statutes
of limitations should govern inverse condemnation actions.34
While § 25-202 provides that an action for the recovery of
the title or possession of lands can only be brought within 10
years after the cause of action accrues, § 25-206 provides, in
part, that “[a]n action upon a contract, not in writing, expressed
or implied, or an action upon a liability created by statute,
other than a forfeiture or penalty, can only be brought within
four years.”
We determined that § 25-206, which is explicitly limited
in its application to “liabilities created by statute,” could not
apply to eminent domain actions, because the City’s liability
was not a statutorily created one, but a constitutional one pur-
suant to article I, § 21.35
We then explained that inverse condemnation actions are
“analogous to an action by a private landowner against another
private individual or entity to recover the title to or posses-
sion of property,” but, because the power of eminent domain
precludes the property owner from compelling the return of
the property taken, the owner is entitled to just compensa-
tion as a substitute.36 Accordingly, an action seeking damages
for inverse condemnation is limited only by the 10-year time
period required to establish title by adverse possession.37
[15,16] Consequently, § 25-202 is not a special statute of
limitations, but only a general statute of limitations. While
§ 25-218 is also not a special statute of limitations for any
specific type of claim, when the State is a defendant to a
33
Krambeck, supra note 26, 198 Neb. at 611, 254 N.W.2d at 693, quoting 30
C.J.S. Eminent Domain § 415 (1965).
34
See § 25-202 and Neb. Rev. Stat. § 25-206 (Reissue 2016).
35
Krambeck, supra note 26, 198 Neb. at 612, 254 N.W.2d at 694.
36
Id. at 614, 254 N.W.2d at 695.
37
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Cite as 297 Neb. 212claim, it is a specific expression of the Legislature’s will
regarding the timeframe to bring such a claim.
[17] As a result of our analysis, we hold that the 2-year
statute of limitations in § 25-218 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
§ 25-202.
(b) Hikes Did Not Bring Their
Claim Within 2 Years
The Hikes argue that even if § 25-218 is the applicable stat-
ute of limitations, they brought their claim within 2 years of its
accrual by asserting it in Hike I. The Hikes’ argument, how-
ever, is based on an incorrect understanding of what it means
to bring an action.
[18] Bringing an action means to sue or institute legal
proceedings.38 Here, where the Hikes had already had an
action pending under a condemnation claim, it would have
meant seeking permission of the trial court to amend their
complaint to add a claim of inverse condemnation. Instead, as
mentioned above, the Hikes attempted to introduce evidence
of structural damage to recover as part of the condemnation
proceeding.
The Hikes did not bring their inverse condemnation action,
by asserting the claim in a complaint, until April 17, 2015.
Further, the district court’s finding that the Hikes’ cause of
action accrued in August 2011, more than 3 years before the
Hikes brought their claim, was not clearly wrong. Therefore,
the Hikes claim of inverse condemnation is barred by the
2-year statute of limitations.
(c) Hikes’ Constitutional Argument
Was Not Properly Raised
In their reply brief, the Hikes contend that they have an
unequivocal right to compensation for the damage caused by
38
Black’s Law Dictionary 231 (10th ed. 2014).
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Cite as 297 Neb. 212the State under article I, § 21, because their rights thereunder
are self-executing. However, the Hikes did not assign such as
error in their initial brief.
[19,20] As we explained in Hike I, errors argued but not
assigned will not be considered on appeal. Further, even if the
argument could be construed as fitting into one of the Hikes’
assigned errors, 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.39 The Hikes’
attempt to make the argument for the first time in their reply
brief is untimely.40
VI. CONCLUSION
We conclude that the 2-year statute of limitations period set
forth in § 25-218 governs inverse condemnation actions against
the State. We determine that the district court did not err when
it granted summary judgment for the State based on its deter-
mination that the Hikes’ claim is barred by the 2-year statute
of limitations.
A ffirmed.
Cassel, J., participating on briefs.
39
Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014).
40
See id.