Haynes v. County of Thayer

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836 21 NEBRASKA APPELLATE REPORTS
causation. Midwest’s assignment of error to the contrary is
without merit.
V. CONCLUSION
We find no merit to Midwest’s assertions on appeal that the
compensation court failed to provide a well-reasoned opinion
under rule 11 and that the evidence was insufficient to demon-
strate legal and medical causation. We affirm.
Affirmed.
Cecil L. Hayes et al., appellants, v.
County of Thayer, Nebraska, appellee.
___ N.W.2d ___
Filed March 18, 2014. No. A-12-903.
1. Pleadings. A party may amend the party’s pleading once as a matter of course
before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted, the party may amend it within 30 days after it is
served. Otherwise a party may amend the party’s pleading only by leave of court
or by written consent of the adverse party, and leave shall be freely given when
justice so requires.
2. ____. Once a responsive pleading has been filed, a party may amend the party’s
pleading only by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires.
3. ____. A district court’s denial of leave to amend pleadings is appropriate only in
those limited circumstances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
4. Pleadings: Appeal and Error. Courts generally review the denial of a motion for
an abuse of discretion.
5. Pleadings: Proof. If leave to amend is sought before discovery is complete and
neither party has moved for summary judgment, futility is judged by a liberal
standard and an amendment is not deemed futile as long as the proposed amended
complaint sets forth a general scenario which, if proven, would entitle the plain-
tiff to relief on some cognizable theory.
6. Pleadings: Summary Judgment: Proof. If leave to amend is not sought until
after discovery is closed and a motion for summary judgment has been docketed,
the proposed amendment must be not only theoretically viable but also solidly
grounded in the record and supported by substantial evidence.
7. Pleadings: Evidence: Summary Judgment. The proposed amendment to a
pleading may be considered futile when the evidence in support of the proposed
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Cite as 21 Neb. Ct. App. 836
new claim creates no triable issue of fact and would not survive a motion for
summary judgment.
8. Pleadings: Evidence: Summary Judgment: Proof. Where summary judgment
has been filed for, the standard is that the party seeking to amend must dem-
onstrate sufficient evidence to show an entitlement to relief, which requires
substantial evidence that shows a triable issue of fact sufficient to survive sum-
mary judgment.
9. Equity: Estoppel. The six elements that must be satisfied for the doctrine of
equitable estoppel to apply are (1) conduct which amounts to a false representa-
tion 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; (3) knowledge, actual or constructive, of the real facts; (4)
lack of knowledge and of the means of knowledge of the truth as to the facts in
question; (5) reliance, in good faith, upon the conduct or statements of the party
to be estopped; and (6) action or inaction based thereon of such a character as to
change the position or status of the party claiming the estoppel.
10. Estoppel: Limitations of Actions. The first prong of the test to satisfy the doc-
trine of equitable estoppel is met when one lulls his or her adversary into a false
sense of security, thereby causing that person to subject his or her claim to the
bar of the statute of limitations, and then pleads the very delay caused by his or
her conduct as a defense to the action when it is filed.
11. ____: ____. The mere pendency of negotiations, conducted in good faith with a
view toward ultimate compromise, is not itself sufficient to establish estoppel.
Appeal from the District Court for Thayer County: Vicky L.
Johnson, Judge. Affirmed.
Joseph F. Chilen, of Denney & Chilen, for appellants.
Vincent Valentino and Brandy R. Johnson, of Valentino Law
Office, for appellee.
Irwin, Pirtle, and Bishop, Judges.
Irwin, Judge.
I. INTRODUCTION
Cecil L. Hayes, Robert D. Hayes, and Harold L. Hayes (col-
lectively Hayes) brought this action against Thayer County,
Nebraska (County), seeking damages allegedly caused by the
re-ignition of a controlled burn started by the County. After
the district court found that Hayes’ complaint was barred by
the statute of limitations and granted the County summary
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838 21 NEBRASKA APPELLATE REPORTS
judgment, Hayes sought to amend the complaint to allege an
estoppel claim. Hayes now appeals the district court’s denial
of that motion to amend the complaint. We find no merit to
the appeal and affirm.
II. BACKGROUND
The events giving rise to this action occurred in February
and March 2009. In early February, the County started a fire
in a ditch to burn vegetation, brush, and scrub trees. Hayes
owns real property located north and east of where the con-
trolled burn was conducted. In late March, the area experi-
enced sustained winds and a fire ignited and caused damage to
Hayes’ property.
In early April 2009, Hayes retained the services of an inves-
tigative firm to conduct an inquiry to determine the source and
cause of the March fire. The investigators opined that the fire
was caused by negligent acts of the County and was the result
of a re-ignition of the February controlled burn.
In late August 2009, Hayes filed a claim with the County,
seeking compensation for the damages caused to Hayes’
property. A claims adjuster for the County swore in an affi-
davit that the County conducted a good faith investigation
into various claims filed as a result of the March fire and
that the County ultimately settled some claims, but did not
reach a settlement on Hayes’ claims. The adjuster also swore
in his affidavit that the settlements reached by the County
did not include an acknowledgment of liability on the part of
the County.
In April 2011, Hayes withdrew the pending claim with the
County. Hayes then filed a complaint in district court, seeking
damages for negligence. Hayes alleged facts in the complaint
concerning when Hayes discovered the cause of the fire, in
an apparent attempt to plead facts suggesting that the statute
of limitations should not have run on the legal claim—even
though the complaint was filed more than 2 years after the
fire occurred.
The County filed a motion to dismiss, citing a lack of
jurisdiction and an alleged failure to state a claim upon which
relief could be granted. The district court denied the motion
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to dismiss. In the order denying the motion to dismiss, the
court found that Hayes’ complaint, although filed more than 2
years after the fire, was not barred by the statute of limitations
because the complaint was filed within 2 years after Hayes
discovered the cause of the fire.
The County later filed a motion for summary judgment. The
County offered a variety of exhibits in support of the motion
for summary judgment, including a deposition of Cecil, various
discovery documents, and affidavits.
The district court granted the motion for summary judg-
ment. The district court found that Hayes discovered the
injury when the fire occurred and that the evidence adduced
at the summary judgment hearing indicated that Hayes was
almost immediately suspicious about the cause of the fire, that
Hayes knew the applicable time limitations and filed the claim
with the County within the applicable time limitations, and
that the statute of limitations was not tolled by the discovery
rule. The ruling on the motion for summary judgment has not
been appealed.
Hayes filed a motion for new trial. In the motion, Hayes
alleged that the grant of summary judgment was not sustained
by sufficient evidence or was contrary to law.
Approximately a month after filing the motion for new trial,
Hayes filed a motion seeking to amend the complaint. Hayes
requested the court’s permission to file an amended complaint
to include assertions that the County should be estopped from
asserting the statute of limitations. Hayes asserted that the
County should be estopped from raising the statute of limita-
tions, because the County had led Hayes to believe the claim
would be settled and had caused Hayes to postpone retaining
counsel and filing the complaint. Without receiving leave of
court to file an amended complaint, Hayes filed the proposed
amended complaint.
The district court granted a hearing on Hayes’ motions for
new trial and for leave to file an amended complaint. In its
order granting the hearing, the court noted that Hayes had not
filed any motion to amend upon the County’s raising of the
issue of the statute of limitations and that Hayes had not argued
or raised any issue of estoppel at the hearing on the County’s
Decisions of the Nebraska Court of Appeals
840 21 NEBRASKA APPELLATE REPORTS
motion for summary judgment. The court concluded that Hayes
had gambled on winning on the discovery rule argument, had
lost, and now had sought to raise an entirely different theory.
The court held that Hayes’ delay in raising the estoppel issue
“would certainly appear [to] constitute ‘undue delay.’” The
court also noted that Hayes had failed to “mention any facts
in support of its motions that would allow it to prevail on a
motion for equitable estoppel.”
After a hearing, the district court entered an order denying
Hayes’ motions for new trial and for leave to file an amended
complaint. The court held that Hayes had not moved to amend
the complaint to raise estoppel until after discovery had been
complete and summary judgment had been entered, and that,
accordingly, Hayes was required to present substantial evi-
dence to support the estoppel claim. The court noted that the
evidence adduced at the summary judgment hearing dem-
onstrated there were clearly differences between Hayes and
the County, that negotiation on the claim had been ongoing,
and that no offer for settlement had ever been made by the
County. The court cited evidence indicating that Hayes had
consulted with legal counsel prior to the running of the statute
of limitations, and it concluded that there was no evidence of
actions by the County to lull Hayes into delaying filing the
complaint. Concluding that Hayes had gambled on a last min-
ute settlement that never happened, the court denied Hayes’
motions for new trial and to file an amended complaint. This
appeal followed.
III. ASSIGNMENTS OF ERROR
Hayes has assigned three errors on appeal, all of which
challenge the district court’s denial of Hayes’ motion to file an
amended complaint and raise estoppel.
IV. ANALYSIS
Hayes’ assertions on appeal challenge the district court’s
denial of Hayes’ motion to file an amended complaint rais-
ing the issue of estoppel. We find that the district court cor-
rectly concluded that because discovery had been completed
and a judgment entered before Hayes moved to amend, the
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appropriate standard was that Hayes had the burden to present
substantial evidence demonstrating a likelihood of success on
the proposed estoppel claim. We also find that the court did not
err in finding that Hayes failed to meet that burden.
This court addressed a similar situation in Bailey v. First
Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741 N.W.2d 184
(2007), in assessing whether a district court properly denied
a request to amend a complaint after summary judgment had
been requested. In that case, we set forth the relevant legal
standards and propositions that should guide a district court’s
decision on a motion to amend the pleadings.
In Bailey, supra, the defendants filed a motion for sum-
mary judgment in an action concerning loan guaranties. After
the defendants filed their motion for summary judgment but
before the district court had ruled on the motion, the plain-
tiffs filed a motion to amend the complaint, seeking to add
additional theories of recovery to the theories set forth in the
initial complaint. The district court denied the motion, and
we reversed.
[1,2] Neb. Ct. R. Pldg. § 6-1115(a) provides, in relevant
part, as follows:
A party may amend the party’s pleading once as a mat-
ter of course before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is
permitted, the party may amend it within 30 days after it
is served. Otherwise a party may amend the party’s plead-
ing only by leave of court or by written consent of the
adverse party, and leave shall be freely given when justice
so requires.
As we noted in Bailey, supra, Nebraska’s rule in this regard has
been similar to Fed. R. Civ. P. 15(a), which provides that once
a responsive pleading has been filed, “a party may amend the
party’s pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when justice
so requires.”
[3] In interpreting this language in the context of the fed-
eral rule, federal courts have concluded that a district court’s
denial of leave to amend pleadings is appropriate only in
those limited circumstances in which undue delay, bad faith
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842 21 NEBRASKA APPELLATE REPORTS
on the part of the moving party, futility of the amendment, or
unfair prejudice to the nonmoving party can be demonstrated.
See Roberson v. Hayti Police Dept., 241 F.3d 992 (8th Cir.
2001), citing Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9
L. Ed. 2d 222 (1962). In Bailey, supra, we adopted those fed-
eral standards.
[4] Federal courts generally review the denial of a motion for
an abuse of discretion. See In re K-tel Intern., Inc. Securities
Litigation, 300 F.3d 881 (8th Cir. 2002). This is consistent with
the standard of review usually employed in reviewing such
motions in Nebraska. See Rudd v. Debora, 20 Neb. Ct. App. 850,
835 N.W.2d 765 (2013). The Eighth Circuit, however, reviews
de novo the underlying legal conclusion of whether a proposed
amendment would have been futile. See Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748 (8th Cir. 2006).
[5] In Bailey v. First Nat. Bank of Chadron, 16 Neb. Ct. App.
153, 741 N.W.2d 184 (2007), we discussed the appropriate
standard to be used in assessing whether the proposed amend-
ment should be denied on the basis of its futility. We adopted
the rationale expressed by the First and Second Circuit Courts
of Appeals that if leave to amend is sought before discovery is
complete and neither party has moved for summary judgment,
futility is judged by a liberal standard and an amendment is
not deemed futile as long as the proposed amended complaint
sets forth a general scenario which, if proven, would entitle
the plaintiff to relief on some cognizable theory. See, Hatch v.
Department for Children, Youth & Families, 274 F.3d 12 (1st
Cir. 2001); Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2d
Cir. 2001).
[6,7] In Bailey, supra, we quoted Hatch, supra, in which
the First Circuit expressed that if leave to amend is not sought
until after discovery is closed and a motion for summary judg-
ment has been docketed, the proposed amendment must be
not only theoretically viable but also solidly grounded in the
record and supported by substantial evidence. We also quoted
the Second Circuit’s expression that in such a situation, the
proposed amendment may be considered futile when the evi-
dence in support of the proposed new claim creates no triable
issue of fact and would not survive a motion for summary
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judgment. Bailey, supra, quoting Milanese, supra. In Bailey,
we specifically held that “the explanations and rationale used
and applied by the First and Second Circuits” were sound
and held that if leave to amend is sought after a motion for
summary judgment has been filed and all relevant evidence
presented, the amendment may be denied as futile when the
evidence in support of the proposed amendment creates no tri-
able issue of fact. 16 Neb. Ct. App. at 169, 741 N.W.2d at 196-97
(emphasis supplied).
[8] Both the notion that “substantial evidence” must be
presented and the notion that the evidence must be such
as would create a “triable issue of fact” that could survive
summary judgment are expressions of the same standard.
Compare Bailey, supra (amendment futile if evidence in sup-
port creates no triable issue of fact), with Nielsen v. Daubert,
No. A-08-206, 2009 WL 306243 (Neb. App. Feb. 10, 2009)
(selected for posting to court Web site) (amendment futile if
not supported by substantial evidence). Of note, in Bailey,
supra, when we quoted the First Circuit’s use of the “sub-
stantial evidence” phrasing in Hatch, supra, we specifically
cited as additional support the Seventh Circuit’s decision
in Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854
(7th Cir. 2001), and noted in a parenthetical that the Bethany
Pharmacal Co., Inc. opinion stood for the proposition that
amendment of a complaint is futile if the added claim would
not survive a motion for summary judgment. In so doing,
we implicitly recognized that the standards employed by
both the First and Second Circuits, although using different
terminology, were the same standard: In this context, where
summary judgment has been filed for, the standard is that the
party seeking to amend must demonstrate sufficient evidence
to show an entitlement to relief, which requires “substantial
evidence” that shows a “triable issue of fact” sufficient to
survive summary judgment. See, also, Thimjon Farms v. First
Intern. Bank & Trust, 837 N.W.2d 327 (N.D. 2013) (hold-
ing that if leave to amend is not sought until after discovery
closed and summary judgment docketed, amendment is futile
unless supported by substantial evidence that would survive
summary judgment motion).
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In the present case, the litigants have not made any assertion
that there is a difference between “substantial evidence” and
evidence sufficient to give rise to a “triable issue of fact” that
could survive summary judgment. Rather, Hayes asserts only
that the standard to be used should be the same as the standard
prior to the close of discovery and the docketing of a summary
judgment motion, where Hayes would need only to set forth a
general scenario that suggests a cognizable theory.
Consistent with our reasoning set forth in Bailey v. First
Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741 N.W.2d 184
(2007), we conclude that in the present case, the appropriate
standard for assessing whether Hayes’ motion to amend should
be determined futile is that the proposed amendment must be
not only theoretically viable but also solidly grounded in the
record and supported by substantial evidence sufficient to give
rise to a triable issue of fact. In the present case, discovery had
closed and a motion for summary judgment had already been
docketed. In fact, the district court had actually already sus-
tained the County’s motion for summary judgment and entered
judgment in favor of the County.
Hayes argues on appeal that discovery was not closed
because the discovery conducted prior to the filing of the
motion for leave to amend was focused on the discovery rule
and the possible tolling of the statute of limitations, not on a
potential claim for estoppel. On the record presented to us, we
have no way of knowing whether anyone conducted discovery
on a possible estoppel claim. What is apparent, however, is that
this case had progressed to a point where a motion for sum-
mary judgment was appropriately filed and the district court
specifically held that discovery had already closed.
It is arguable that waiting until after summary judgment
has been entered on a statute of limitations claim and one
proposed defense to the limitations claim (i.e., application of
the discovery rule) to posit a completely different theory of
defense to the limitations claim (i.e., estoppel) is undue delay.
There is no indication in the record of any excuse or explana-
tion for why Hayes did not consider, raise, or pursue discovery
on the estoppel theory until after the court had already granted
summary judgment. The district court concluded that Hayes
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gambled on a favorable outcome on the discovery rule and,
only after losing that gamble, then explored estoppel.
Nonetheless, and without specifically finding that there was
undue delay in Hayes’ filing of the motion to amend, we
conclude that the district court did not abuse its discretion in
denying the motion for leave to amend because, on a de novo
review, we agree that the proposed amendment was futile.
Hayes failed to demonstrate that the proposed amendment was
not only theoretically viable but also solidly grounded in the
record and supported by substantial evidence sufficient to give
rise to a triable issue of fact.
Hayes’ motion for leave to amend sought permission to
add assertions supporting a theory that the County should be
equitably estopped from asserting the statute of limitations as
a defense because the County had acted in a fashion to lull
Hayes into not filing the action in court until after the stat-
ute of limitations had already expired. In Woodard v. City of
Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999), the Nebraska
Supreme Court held that political subdivisions can be equita-
bly estopped from relying on a statute of limitations upon a
showing that the elements of equitable estoppel have been met,
as well as compelling circumstances, where right and justice so
demand in the interest of preventing manifest injustice. Thus,
in addition to showing, supported by substantial evidence, that
Hayes can demonstrate all of the elements of equitable estop-
pel, Hayes also must demonstrate compelling circumstances
and a risk of manifest injustice if not allowed to amend the
pleadings after summary judgment was entered on behalf of
the County.
[9,10] The six elements that must be satisfied for the doc-
trine of equitable estoppel to apply are (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 inten-
tion, or at least the expectation, that such conduct shall be
acted upon by, or influence, the other party or other persons;
(3) knowledge, actual or constructive, of the real facts; (4) lack
of knowledge and of the means of knowledge of the truth as to
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846 21 NEBRASKA APPELLATE REPORTS
the facts in question; (5) reliance, in good faith, upon the con-
duct or statements of the party to be estopped; and (6) action
or inaction based thereon of such a character as to change the
position or status of the party claiming the estoppel. Woodard,
supra. The first prong of the test to satisfy the doctrine of equi-
table estoppel is met when one lulls his or her adversary into
a false sense of security, thereby causing that person to subject
his or her claim to the bar of the statute of limitations, and then
pleads the very delay caused by his or her conduct as a defense
to the action when it is filed. Id.
In the present case, Hayes has not demonstrated substantial
evidence that all of these elements can be satisfied and has
not demonstrated a triable issue of fact. In Woodard, supra, a
representative of the defendant had met with the plaintiffs and
allegedly encouraged them not to retain counsel. The plaintiffs
swore in an affidavit that they had agreed to negotiate a settle-
ment upon condition that they not retain counsel. Negotiations
between the parties had resulted in a letter of understanding
in which the parties specifically represented that the plaintiffs’
rights to claim damages in the future were being reserved. The
defendant made a variety of settlement offers to the plaintiffs
and actually made a series of voluntary payments to the plain-
tiffs. The plaintiffs swore in an affidavit that the defendant
made repeated assurances that the defendant would voluntarily
settle without litigation.
[11] The Nebraska Supreme Court did not conclude as a
matter of law that all of those facts necessarily demonstrated
a claim for equitable estoppel, but did conclude that whether
estoppel should be applied was a question of fact which pre-
vented summary judgment on the issue from being entered
in favor of the defendant. Woodard v. City of Lincoln, 256
Neb. 61, 588 N.W.2d 831 (1999). The court specifically dis-
tinguished situations where the evidence demonstrates mere
attempts to settle, however, and noted that the mere pendency
of negotiations, conducted in good faith with a view toward
ultimate compromise, is not itself sufficient to establish estop-
pel. Id. Rather, it was the presence of evidence suggesting that
the defendant conveyed the impression that litigation would
not be necessary, lulling the plaintiffs into not filing a legal
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claim until after the expiration of the statute of limitations,
that, if proved to the finder of fact, could establish the level of
misrepresentation necessary for estoppel.
In the present case, there was no evidence adduced to
demonstrate anything comparable to the evidence and factual
circumstances present in Woodard, supra. Hayes offered affi-
davits in support of the motion for leave to amend, but the
affidavits do not indicate any evidence of any settlement offer
ever being made by the County, do not indicate any evidence
of an admission of liability by the County, do not indicate
any evidence of any statements or suggestions that Hayes
forgo seeking counsel or pursuing legal remedies, and do not
indicate any discussions concerning the statute of limitations.
See Keene v. Teten, 8 Neb. Ct. App. 819, 602 N.W.2d 29 (1999)
(no estoppel where plaintiff was never discouraged from seek-
ing counsel, plaintiff did consult with counsel before running
of statute, and no agreement ever existed for settlement).
Hayes has not offered evidence of any action on behalf of
the County, beyond mere settlement negotiations, to suggest
any action that could be construed as having lulled Hayes
into forgoing commencement of litigation within the statute
of limitations.
Indeed, even a review of Hayes’ proposed amended com-
plaint does not reveal allegations of any action on behalf of
the County that could be construed as having lulled Hayes
into forgoing commencement of litigation within the statute of
limitations. Hayes sought to allege in the amended complaint
that the County periodically requested documents and evi-
dence to support Hayes’ claim, contacted Hayes about setting
a meeting to discuss the claim and obtain insurance informa-
tion, actually met with Hayes, disagreed with Hayes about
the appropriate value of damages that could be sought, and
indicated an intention to contact Hayes’ insurance company
to discuss the subrogation process. Hayes sought to allege
that the County’s actions and words conveyed and created
the impression that litigation would not be necessary. These
assertions, even aside from not being supported by substantial
evidence, do not rise to the level of demonstrating a viable
estoppel claim. See, Woodard, supra (mere negotiation does
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848 21 NEBRASKA APPELLATE REPORTS
not support estoppel); Keene, supra (investigation of claim is
not sufficient to support estoppel).
In this case, Hayes has not alleged or provided substantial
evidence to demonstrate the elements of estoppel and has not
demonstrated a triable issue of fact. Hayes has not alleged or
provided substantial evidence to demonstrate any action on
behalf of the County that could be considered to have lulled
Hayes into not pursuing legal redress before the expiration
of the statute of limitations. Hayes has really alleged and
presented evidence only of the County’s having engaged in
settlement negotiations and investigation. There has been no
showing of any compelling circumstances where right and
justice demand granting leave to amend in the interest of pre-
venting a manifest injustice. Rather, the record presented to
us demonstrates that Hayes pursued a theory that the statute
of limitations should not bar the claim because of the discov-
ery rule and, upon losing on that claim, sought to pursue a
completely different theory: estoppel. We agree with the dis-
trict court that the proposed amendment would be futile, and
we find no abuse of discretion by the court in denying leave
to amend.
V. CONCLUSION
We find no merit to Hayes’ assertions on appeal that the
court erred in denying the motion for leave to amend the plead-
ings. We affirm.
Affirmed.
Bishop, Judge, concurring.
The Nebraska Supreme Court has stated that “[a] district
court’s denial of leave to amend pleadings is appropriate only
in those limited circumstances in which undue delay, bad faith
on the part of the moving party, futility of the amendment,
or unfair prejudice to the nonmoving party can be demon-
strated.” Intercall, Inc. v. Egenera, Inc., 284 Neb. 801, 811,
824 N.W.2d 12, 21 (2012) (emphasis supplied). I write sepa-
rately to address the majority opinion’s discussion on the futil-
ity of the amendment issue in this case. I am concerned that
the majority opinion blurs the distinction between “substantial
evidence” and “sufficient evidence” and a “triable issue of
Decisions of the Nebraska Court of Appeals
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Cite as 21 Neb. Ct. App. 836
fact” in the standard it articulates for considering the futility of
a proposed amendment to pleadings after a summary judgment
motion has been docketed.
The majority states that “[b]oth the notion that ‘substantial
evidence’ must be presented and the notion that the evidence
must be such as would create a ‘triable issue of fact’ that
could survive summary judgment are expressions of the same
standard,” and that “where summary judgment has been filed
for, the standard is that the party seeking to amend must dem-
onstrate sufficient evidence to show an entitlement to relief,
which requires ‘substantial evidence’ that shows a ‘triable issue
of fact’ sufficient to survive summary judgment.” The majority
then states:
Consistent with our reasoning set forth in Bailey v.
First Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741
N.W.2d 184 (2007), we conclude that in the present case,
the appropriate standard for assessing whether Hayes’
motion to amend should be determined futile is that the
proposed amendment must be not only theoretically via-
ble but also solidly grounded in the record and supported
by substantial evidence sufficient to give rise to a triable
issue of fact.
I do not see this standard as being consistent with Bailey.
The standard articulated in Bailey is consistent with the long-­
established standard in Nebraska for proof on summary judg-
ment; whereas, the standard articulated by the majority in this
case represents an unnecessary and perhaps misleading depar-
ture from that standard.
CLARIFICATION OF STANDARD
In Bailey, in examining the futility of an amendment to
pleadings, our court noted initially that “[s]everal federal courts
hold that at a certain point in pretrial proceedings, a motion to
amend the complaint should be judged under a standard com-
parable or identical to the standard for summary judgment.”
16 Neb. Ct. App. at 167, 741 N.W.2d at 195. Bailey then looked
specifically at cases from the First and Second Circuits and
noted that cases from the Eighth Circuit indicate that “leave
to amend may be denied if the amended pleading could be
Decisions of the Nebraska Court of Appeals
850 21 NEBRASKA APPELLATE REPORTS
defeated by a motion for summary judgment or dismissal.” Id.
at 168, 741 N.W.2d at 196. Bailey then held that if a motion
to amend a pleading is sought at the time a summary judgment
motion is filed
and the parties have presented all relevant evidence in
support of their positions, then the amendment should be
denied as futile only when the evidence in support of the
proposed amendment creates no triable issue of fact and
the opposing party would be entitled to judgment as a
matter of law.
16 Neb. App. at 169, 741 N.W.2d at 196-97. The holding in
Bailey is consistent with Nebraska’s statute on summary judg-
ment and Nebraska appellate precedent which holds:
Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ulti-
mate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter
of law.
Peterson v. Homesite Indemnity Co., 287 Neb. 48, 54, 840
N.W.2d 885, 891 (2013) (emphasis supplied). See, also, Neb.
Rev. Stat. § 25-1332 (Reissue 2008). I see “no triable issue of
fact” and “no genuine issue as to any material fact” as being
the same standard, a summary judgment standard, whereas the
majority’s standard, especially the incorporation of “substantial
evidence,” suggests a different, higher burden of proof.
A discussion on summary judgment is well articulated in
Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826
N.W.2d 225 (2012), and notably, the word “substantial” is not
contained anywhere in the court’s discussion of “sufficient”
evidence for summary judgment. In that case, the Nebraska
Supreme Court stated:
[C]onsideration of a motion for summary judgment also
requires a court to consider the quantitative sufficiency
of the evidence. The party moving for summary judg-
ment has the burden to show that no genuine issue of
material fact exists and must produce sufficient evidence
to demonstrate that the moving party is entitled to judg-
ment as a matter of law. This standard explicitly invokes
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the idea of sufficiency of evidence. Furthermore, “[a]fter
the movant for summary judgment makes a prima facie
case by producing enough evidence to demonstrate that
the movant is entitled to judgment if the evidence was
uncontroverted at trial, the burden to produce evidence
showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party
opposing the motion.” Courts also speak in terms of
“sufficiency” when considering whether the nonmov-
ing party met this burden. In fact, this court has defined
the decisive question on appeal from summary judg-
ment as “whether [the nonmoving party] produced suf-
ficient evidence to present a genuine issue of material
fact.” Indeed, any burden of proof necessarily requires a
court to determine whether the party with the burden of
proof adduced sufficient evidence to meet that burden.
In claiming that the district court erred in finding that
there was insufficient evidence to find that [appellee]
tortiously interfered with the 107th Avenue lease, appel-
lants overlook the evidentiary burdens applicable in the
summary judgment procedure.
In the instant case, appellants were in the position of
the nonmoving party, and thus, once [appellee] adduced
sufficient evidence to show that it was entitled to judg-
ment as a matter of law if [appellee’s] evidence remained
uncontroverted at trial, they had the burden of show-
ing the existence of material issues of fact that would
have precluded judgment as a matter of law in favor of
[appellee], the moving party. Because appellants had a
burden of proof in the summary judgment hearing, the
district court did not err in considering whether appel-
lants produced sufficient evidence to meet that burden
of proof.
Id. at 788-89, 826 N.W.2d at 234. The Supreme Court in
Lund Co. went on to state that the appellee had established a
prima facie case for summary judgment, so the burden shifted
to the appellants to “produce sufficient evidence to establish
the existence of a material issue of fact that prevented judg-
ment” for the appellee. 284 Neb. at 792, 826 N.W.2d at 236.
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852 21 NEBRASKA APPELLATE REPORTS
The Supreme Court further noted that although “appellants’
evidence did call into question [appellee’s] evidence on cer-
tain factual matters,” “not all issues of fact preclude summary
judgment, but only those that are material. In the summary
judgment context, a fact is material only if it would affect the
outcome of the case.” Id.
In this case, the majority concludes that “Hayes has not
alleged or provided substantial evidence to demonstrate the
elements of estoppel and has not demonstrated a triable issue
of fact.” I disagree that Hayes had to prove estoppel by “sub-
stantial” evidence; rather, Hayes had to “produce sufficient evi-
dence to establish the existence of a material issue of fact,” see
Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 792,
826 N.W.2d 225, 236 (2012), that would preclude judgment for
the County. In this case, in support of the estoppel argument,
Hayes asserts that the County lulled Hayes into a false sense
of security resulting in the delay in filing the complaint. The
only alleged factual basis to support this position is a meeting
that took place between Hayes and John Christensen, a claims
adjuster for the County’s self-insurance pool, on November
10, 2010, 4 months before the statute of limitations would
have run. Hayes claims the discussion included the request to
restore the property based on a fair market value approach as
used by the Internal Revenue Service, whereas Christensen
suggested an actual cash value approach. Christensen stated
that the costs of the private investigator hired by Hayes would
not be reimbursed. Christensen requested the name and address
of Hayes’ insurance company and contact person to initiate
the subrogation process, and according to Hayes, Christensen
also indicated that he would be in contact with Hayes’ insur-
ance company to initiate that process. Hayes claims that
Christensen delayed contacting the insurance company until
March 18, 2011, and that Hayes’ insurance company responded
to Christensen on March 28. As noted in the majority opinion,
there was no evidence of any settlement offer or any evidence
that Christensen suggested that Hayes forgo seeking legal
counsel or remedies. As noted by the majority, the Nebraska
Supreme Court has previously held that “‘[t]he mere pendency
of negotiations during the period of a statute of limitations,
Decisions of the Nebraska Court of Appeals
HAYES v. COUNTY OF THAYER 853
Cite as 21 Neb. Ct. App. 836
which are conducted in good faith with a view to ultimate
compromise, is not of itself sufficient to establish an estop-
pel,’” and that “ordinary settlement negotiations contain the
implicit notion that if settlement is not reached, then litigation
may be necessary.” Woodard v. City of Lincoln, 256 Neb. 61,
69, 588 N.W.2d 831, 837 (1999). Additionally, conclusions
based upon guess, speculation, conjecture, or a choice of pos-
sibilities do not create material issues of fact for purposes of
summary judgment. Cartwright v. State, 286 Neb. 431, 837
N.W.2d 521 (2013). Hayes did not produce sufficient evidence
to establish the existence of a material issue of fact that would
support estopping the County from raising the statute of limi-
tations defense. Accordingly, I concur in the majority’s deter-
mination that the district court did not abuse its discretion in
denying the amended complaint.
MOTION FOR NEW TRIAL
FOLLOWING SUMMARY
JUDGMENT ORDER
The majority did not address a procedural issue in this case
that I believe warrants mention. The district court entered a
summary judgment order on February 24, 2012. Hayes filed a
“Motion for New Trial” on March 2, stating specifically that it
was being filed pursuant to Neb. Rev. Stat. § 25-1142 (Reissue
2008), “for the reason that the verdict, report, or decision is
not sustained by sufficient evidence or is contrary to law.”
We note that the motion language is quoting directly from
§ 25-1142, the new trial statute. Hayes then filed a “Motion
to Amend Complaint” on April 4; on August 30, the motion
to amend complaint and the motion for new trial were both
overruled. Hayes appealed to this court on September 28. If
the March 2 motion for new trial cannot be converted to a
motion to alter or amend the judgment, Hayes’ appeal would
not be timely.
In Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631,
638, 694 N.W.2d 832, 838 (2005), the court stated, “As our
recent jurisprudence makes clear, a motion purportedly seek-
ing a new trial is not a proper motion to file after a motion
for summary judgment is sustained and does not toll the time
Decisions of the Nebraska Court of Appeals
854 21 NEBRASKA APPELLATE REPORTS
for filing a notice of appeal.” The Allied Mut. Ins. Co. court
further stated:
However, a postjudgment motion must be reviewed based
on the relief sought by the motion, not based upon the
title of the motion. When the statutory basis for a motion
challenging a judgment on the merits is unclear, the
motion may be treated as a motion to alter or amend
the judgment.
Id. (emphasis supplied). In Allied Mut. Ins. Co., the motion
for new trial was based on an alleged “irregularity in the pro-
ceedings of the court, an insufficiency of evidence, and an
error of law.” Id. The Allied Mut. Ins. Co. court concluded,
“This motion is similar to a motion for reconsideration, which
is treated as a motion to alter or amend the judgment pursu-
ant to Neb. Rev. Stat. § 25-1329 (Cum. Supp. 2002),” and, if
filed within 10 days of the final order, tolls the time to file an
appeal. 269 Neb. at 638, 694 N.W.2d at 838.
In this case, the motion for new trial cites specifically to the
new trial statute, § 25-1142, and quotes directly from that stat-
ute. Allied Mut. Ins. Co. indicates that we may treat a motion
for new trial as a motion to alter or amend the judgment
“[w]hen the statutory basis for a motion challenging a judg-
ment on the merits is unclear.” 269 Neb. at 638, 694 N.W.2d at
838. In this case, the statutory basis is clearly stated—it cites
to the new trial statute and quotes directly from that statute.
Accordingly, Allied Mut. Ins. Co. seems to say that the motion
for new trial in this case would not have effectively tolled the
time for filing an appeal.
That said, however, it appears the appellate courts have
been generous in allowing appeals to move forward regard-
less of the title or substance of a postjudgment motion. In a
case decided just months before Allied Mut. Ins. Co., supra,
the Nebraska Supreme Court addressed a motion for new trial
filed after a motion to dismiss was sustained. The Supreme
Court stated that the “motion for new trial was not a proper
motion and would not toll the time for filing a notice of
appeal.” Weeder v. Central Comm. College, 269 Neb. 114,
119, 691 N.W.2d 508, 513 (2005). The Supreme Court went
on to note that “to qualify for treatment as a motion to alter or
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HAYES v. COUNTY OF THAYER 855
Cite as 21 Neb. Ct. App. 836
amend the judgment, the motion must be filed no later than 10
days after the entry of judgment, as required under § 25-1329,
and must seek substantive alteration of the judgment.” Weeder,
269 Neb. at 119, 691 N.W.2d at 513. The Supreme Court
observed that the motion in that case contained the language
“‘reexamine its decision to dismiss . . . and reinstate the
action as previously filed,’” and the Supreme Court concluded
that the “language seeks substantive alteration of the judg-
ment,” “qualifies as one to alter or amend the judgment under
§ 25-1329, and tolled the time for filing a notice of appeal.”
Weeder, 269 Neb. at 120, 691 N.W.2d at 513. The Supreme
Court went on to state:
We pause briefly to note that since Neb. Rev. Stat.
§ 25-1912(3) (Cum. Supp. 2002) was amended in 2000,
see 2000 Neb. Laws, L.B. 921, this court or the Court
of Appeals, on repeated occasions, has found it neces-
sary to determine whether an improperly filed motion
for new trial could be viewed as one to alter or amend a
judgment. See, Diversified Telecom Servs. v. Clevinger,
268 Neb. 388, 683 N.W.2d 338 (2004); Central Neb.
Pub. Power v. Jeffrey Lake Dev.[, 267 Neb. 997, 679
N.W.2d 235 (2004)]; DeBose v. State, 267 Neb. 116, 672
N.W.2d 426 (2003); State v. Bellamy[, 264 Neb. 784,
652 N.W.2d 86 (2002)]; Vesely v. National Travelers
Life Co., 12 Neb. Ct. App. 622, 682 N.W.2d 713 (2004).
In the future, we request the practicing bar to carefully
consider the nature of the proceeding prior to filing any
motion calling into question a court’s judgment.
Weeder, 269 Neb. at 120, 691 N.W.2d at 513.
Other than the sentence emphasized from Allied Mut. Ins.
Co. v. City of Lincoln, 269 Neb. 631, 694 N.W.2d 832 (2005),
the Nebraska Supreme Court appears to direct us to convert an
improperly filed postjudgment motion into a motion to alter or
amend a judgment to allow for the tolling of the time to file
an appeal. So although the language in Allied Mut. Ins. Co.
gives me pause, I join with the majority in its apparent deci-
sion to allow the appeal to be decided on its merits rather than
dismissing on jurisdictional grounds.