Bolden v. Board of Regents

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www.nebraska.gov/apps-courts-epub/
03/29/2022 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767Nicole Bolden, individually and as Special
Administrator of the Estate of NiMarah
Robinson, and Marcel Robinson, appellants,
v. Board of Regents of the University of
Nebraska, doing business as University
of Nebraska Medical Center, and
Calida Gardner, C.N.M.,
M.S.N., appellees.
___ N.W.2d ___
Filed March 29, 2022. No. A-21-245.
1. Motions to Dismiss: Jurisdiction: Pleadings: Evidence. When a trial
court relies solely on pleadings and supporting affidavits in ruling on a
motion to dismiss for want of personal jurisdiction, the plaintiff need
only make a prima facie showing of jurisdiction to survive the motion.
However, if the court holds an evidentiary hearing on the issue or
decides the matter after trial, then the plaintiff bears the burden of dem-
onstrating personal jurisdiction by a preponderance of the evidence.
2. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
3. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any mate-
rial facts or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a matter of
law. An appellate court reviews the district court’s grant of summary
judgment de novo, viewing the record in the light most favorable to
the nonmoving party and drawing all reasonable inferences in that
party’s favor.
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 7674. Pleadings: Appeal and Error. Permission to amend a pleading is
addressed to the discretion of the trial court, and the trial court’s deci-
sion will not be disturbed absent an abuse of discretion.
5. ____: ____. A finding that an amendment to a pleading would be futile
is reviewed de novo.
6. Motions to Dismiss: Jurisdiction: Rules of the Supreme Court:
Pleadings. When a motion to dismiss raises a defense under Neb. Ct.
R. Pldg. § 6-1112(b)(6) and any combination of § 6-1112(b)(2), (4), and
(5), the court should consider dismissal under § 6-1112(b)(2), (4), and
(5) first and should consider dismissal under § 6-1112(b)(6) only if it
determines that it has jurisdiction and that process and service of process
were sufficient.
7. Summary Judgment: Motions to Dismiss: Jurisdiction: Affidavits.
When the issue on a motion to dismiss is personal jurisdiction, affida-
vits may be submitted without converting the motion into one for sum-
mary judgment.
8. Notice: Service of Process. Although Neb. Rev. Stat. § 25-505.01(Reissue 2016) does not require service to be sent to the defendant’s
residence or restrict delivery to the addressee, due process requires
notice to be reasonably calculated to apprise interested parties of the
pendency of the action and to afford them the opportunity to present
their objections.
9. Jurisdiction: Rules of the Supreme Court: Pleadings: Appeal and
Error. When reviewing an order dismissing a party from a case for
lack of personal jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(2), an
appellate court examines the question of whether the nonmoving party
has established a prima facie case of personal jurisdiction de novo.
10. Judgments: Jurisdiction: Appeal and Error. An appellate court
reviews a lower court’s determination regarding personal jurisdiction
based on written submissions in the light most favorable to the nonmov-
ing party.
11. Pleadings: Affidavits: Appeal and Error. If the lower court does not
hold a hearing and instead relies on the pleadings and affidavits, then an
appellate court must look at the facts in the light most favorable to the
nonmoving party and resolve all factual conflicts in favor of that party.
12. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
13. Motions to Dismiss: Rules of the Supreme Court: Pleadings. A
motion to amend should only be deemed as being futile if the amend-
ment could not survive a Neb. Ct. R. Pldg. § 6-1112(b)(6) motion
to dismiss.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 76714. Estoppel: Equity. Under the doctrine of equitable estoppel, estoppel
applies when a party engages in (1) conduct which amounts to a false
representation or concealment of material facts or, at least, which is cal-
culated 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 will be
acted upon by, or influence, the other party or other persons; (3) knowl-
edge, actual or constructive, of the real facts; (4) lack of knowledge
and 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.
15. Equity: Estoppel: Fraud: Limitations of Actions. The equitable doc-
trine of estoppel may, in a proper case, be applied to prevent a fraudu-
lent or inequitable resort to a statute of limitations, and a defendant
may, by his or her representations, promises, or conduct, be so estopped
where the other elements of estoppel are present.
16. Equity: Estoppel. Equitable estoppel rests largely on the facts and
circumstances of the particular case and will be applied where the wis-
dom and justice of the principle are founded upon equity, morality, and
justice in accordance with good conscience, honesty, and reason. Under
such circumstances, the doctrine subserves its true purpose as a practi-
cal, fair, and necessary rule of law.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Corey L. Stull and Nolan J. Niehus, Senior Certified Law
Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel
Law Firm, P.C., L.L.O., for appellants.
David D. Ernst and Kellie Chesire Olson, of Pansing, Hogan,
Ernst & Bachman, L.L.P., for appellee Board of Regents.
Robert A. Mooney, Emily E. Palmiscno, and John A.
McWilliams, of Sodoro, Mooney & Lenaghan, L.L.C., for
appellee Calida Gardner.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767Welch, Judge.
I. INTRODUCTION
Nicole Bolden, individually and as special administrator of
the estate of NiMarah Robinson, and Marcel Robinson (collec-
tively Appellants) appeal the Douglas County District Court’s
order denying their motion for new trial or to reconsider the
court’s granting of summary judgment in favor of Calida
Gardner, C.N.M., M.S.N.; granting the motion to dismiss filed
by the Board of Regents of the University of Nebraska, doing
business as University of Nebraska Medical Center (UNMC);
and in overruling their motion to amend their complaint. For
the reasons stated herein, we affirm in part, and in part reverse
and remand for further proceedings.
II. STATEMENT OF FACTS
1. Original and Amended Complaint
Appellants filed a medical malpractice action against
Gardner and UNMC alleging that Gardner, in her capacity as
an employee or agent of UNMC, and UNMC negligently failed
to provide proper medical care to Bolden and her unborn child,
NiMarah, which resulted in NiMarah’s death and damages
to Bolden. Appellants specifically alleged that on October 3,
2016, Bolden sought prenatal care at UNMC and was initially
evaluated by Gardner, who represented that she was a certi-
fied midwife. Thereafter, Bolden alleged Gardner continued
to provide ongoing care for Bolden at UNMC. On March 12,
2017, in Bolden’s third trimester, she began experiencing high
blood pressure and high glucose levels. Bolden asserted that
she was not informed that she presented with these symptoms
by either Gardner or other medical staff. During a March 30
prenatal visit, Gardner indicated to Bolden that Bolden’s baby
was larger than expected. At her April 11 prenatal visit, Bolden
was informed that she had gained 14 pounds in 2 weeks, had
edema in her legs, and had high blood pressure. On April
23, when Bolden went to the UNMC emergency room where
she expressed concern that her baby was not moving, she
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767was admitted with high blood pressure, headaches, pain and
swelling in her legs, and protein in her urine. Although doc-
tors diagnosed Bolden with preeclampsia, they released her
the following day with instructions to return on April 28 for
labor induction. However, on April 27, Bolden returned to the
emergency room with extremely high blood pressure and lack
of fetal movement. At that time, doctors informed Bolden that
her baby suffered an intrauterine fetal death. Bolden underwent
an emergency cesarean section to deliver her baby.
In sum, Appellants alleged in their amended complaint
that Gardner and UNMC failed to properly document, record,
assess, diagnose, and treat Bolden and NiMarah; that their
conduct fell below the requisite standard of care; and that
their negligence was the proximate cause of their injuries and
damages. Appellants then allege they filed a tort claim pursu-
ant to the State Tort Claims Act (STCA) directed at Gardner
and UNMC on February 6, 2019. Appellants allege the State
Claims Board (Board) failed to dispose of the claim within
6 months; they withdrew the claim on March 13, 2020; and
they filed their complaint on March 31, which complaint was
amended that same day.
2. Gardner’s Motion to Dismiss and/or
Motion for Summary Judgment and
Appellants’ Motion to Amend
On May 5, 2020, Gardner filed a motion to dismiss or, in
the alternative, a motion for summary judgment contending
that she was not an employee of UNMC, but instead was
an employee of Nebraska Medicine; that she was improp-
erly served; and that the pleadings showed that Bolden’s
complaint was time barred because the alleged malpractice
occurred over 3 years prior to the date of the complaint. The
following month, Appellants filed a motion to amend their
complaint for a second time. In the motion and proposed
second amended complaint, Appellants asserted and averred
that Gardner actively misrepresented her employer and that
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767Appellants had no way of learning Gardner’s actual employer.
Specifically, Appellants averred that while under the care of
Gardner and UNMC, Gardner was wearing a UNMC badge
and UNMC scrubs and appeared to Bolden to be a UNMC
employee. Appellants alleged Gardner provided Bolden with a
UNMC brochure containing Gardner’s picture, stated that she
was “part of UNMC,” spoke with Bolden about how midwives
at the facility were legitimate medical providers, and stated
that receiving prenatal care from midwives was a better option
than receiving medical care from doctors. Bolden asserted that
Gardner was listed as an instructor on the UNMC website, that
Gardner was listed in UNMC’s staff directory, and that Bolden
had no way of knowing that Gardner was employed anywhere
other than UNMC.
Additionally, Appellants averred that after filing the claim
under the STCA, Appellants’ counsel checked on the claim’s
status on five different occasions; each time, counsel received
a response that the claim was still under investigation or that
there was no recommendation. Appellants’ proposed second
amended complaint alleged that they did not withdraw their
claim on August 13, 2019, as permitted under the STCA,
because they relied upon representations by the State that the
claim was still under investigation. After receiving no disposi-
tion of the claim, on March 13, 2020, Appellants withdrew their
STCA claim and filed a complaint against Gardner and UNMC
on March 31, which complaint was amended that same day.
Appellants served Gardner via certified mail using Gardner’s
address as listed in the UNMC staff directory. The certified
mail return receipt showed that the complaint was signed on
April 4 by an agent, who was the mail carrier for UNMC.
In connection with their motion to amend, Appellants sought
to add Nebraska Medicine as a party and add three addi-
tional UNMC doctors as parties. Appellants argued that the
additional information and parties sought to be included in
the proposed second amended complaint arose out of the
same transaction and occurrence of Gardner’s negligence and
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767that, had Gardner not misrepresented her employer informa-
tion, Appellants would have timely sued Nebraska Medicine.
Further, Appellants asserted that Nebraska Medicine received
notice of the claim against Gardner and UNMC and that
Nebraska Medicine would not be prejudiced by being brought
into the action.
(a) Evidence in Support of Summary
Judgment and Motion to Amend
The court heard the motions in mid-June 2020. The court took
judicial notice of the court file, including the complaint and the
return of service concerning Gardner, and accepted evidence on
the condition that it would not be considered unless the motion
was converted to summary judgment. Gardner offered into
evidence affidavits by Gardner and David Poppert, a risk man-
ager at UNMC. In response, Appellants objected that Gardner
did not properly submit her motion for summary judgment,
since Gardner did not file an undisputed statement of facts
or an index of evidence as required by Neb. Ct. R. § 6-1526
(rev. 2018) and Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020).
Appellants offered into evidence an affidavit by Bolden and
two affidavits by her attorney with attachments. The attach-
ments included Appellants’ completed and signed STCA claim
form and a typed statement; emails indicating the STCA claim
was still under review; Gardner’s employee information on
UNMC’s website showing Gardner was a UNMC instructor; a
profile at UNMC that listed Gardner as UNMC’s “new midwife
faculty member”; the signed certified return receipt for service
on Gardner; and the UNMC staff directory.
In connection with Appellants’ motion to amend, the court
again took judicial notice of the court file; evidence previ-
ously received, including the exhibits offered by Appellants;
and the motion for leave to amend with the attached pro-
posed second amended complaint. The court also received and
considered, over Appellants’ objection, Gardner and UNMC’s
exhibit consisting of a supplemental affidavit by Poppert,
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767including the following attachments: a photograph of Gardner’s
employee badge and copies of Bolden’s medical bills from
Nebraska Medicine.
(b) District Court Order
In August 2020, the court granted summary judgment in
favor of Gardner due to Appellants’ claim being barred by the
statute of limitations and improper service. The court found
that Gardner was an employee of Nebraska Medicine, not
UNMC; Appellants’ attempt to serve Gardner at UNMC was
improper; there was no genuine issue of material fact as to
Gardner’s employment; Appellants’ claim was barred by the
statute of limitations; and no amendment could be made to the
complaint to cure the statute of limitations bar to the action.
The court denied Appellants’ motion to amend, finding that the
proposed amendment to add additional parties would be futile
due to the expiration of the statute of limitations.
3. Bolden’s Motion for New Trial
or Motion to Reconsider and
UNMC’s Motion to Dismiss
Appellants timely filed a motion for new trial or to recon-
sider, and thereafter, UNMC filed a motion to dismiss. At the
hearing on these motions, Appellants argued that summary
judgment was improper because Gardner had not met her bur-
den of proof or followed proper procedures for summary judg-
ment; that Appellants presented evidence of a genuine issue of
material fact, but the court did not apply the correct standard
and considered improper evidence in ruling on the motion; and
that the motion to amend was not futile.
UNMC’s motion to dismiss generally asserted that Appellants’
claims failed to state a claim for which relief could be granted
under Neb. Ct. R. Pldg. § 6-1112(b)(6) for the reason that the
statute of limitations had run on Appellants’ claims.
In March 2021, the district court entered an order finding
that summary judgment was proper, equitable estoppel did
not apply, and Appellants should not be given leave to amend
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767their complaint. The court also granted UNMC’s motion to
dismiss, finding that Appellants’ complaint was filed more
than 6 months from the date they were eligible to withdraw
their STCA claim and that consequently, Appellants’ complaint
was barred by the statute of limitations. Appellants have timely
appealed to this court.
III. ASSIGNMENTS OF ERROR
Appellants assign as error, renumbered and restated, that the
district court erred in (1) finding that service of process upon
Gardner was improper; (2) dismissing Appellants’ amended
complaint against Gardner and UNMC based upon a violation
of the statute of limitations, because the doctrine of equitable
estoppel precluded the statute’s application; (3) converting
Gardner’s motion to dismiss to a motion for summary judg-
ment, considering Gardner’s exhibit consisting of a supple-
mental affidavit by Poppert (including attachments in connec-
tion with the motions), and granting summary judgment when
Gardner failed to comply with §§ 6-1526 and 25-1332; and (4)
denying their motion to amend their complaint.
IV. STANDARD OF REVIEW
[1] When a trial court relies solely on pleadings and sup-
porting affidavits in ruling on a motion to dismiss for want
of personal jurisdiction, the plaintiff need only make a prima
facie showing of jurisdiction to survive the motion. RFD-TV
v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107(2014). However, if the court holds an evidentiary hearing on
the issue or decides the matter after trial, then the plaintiff
bears the burden of demonstrating personal jurisdiction by a
preponderance of the evidence. Id.[2] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Baker-Heser v. State, 309 Neb.
979, 963 N.W.2d 59 (2021).
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767[3] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as
a matter of law. An appellate court reviews the district court’s
grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. Id.[4,5] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and the trial court’s decision will not
be disturbed absent an abuse of discretion. Ferer v. Aaron Ferer
& Sons, 278 Neb. 282, 770 N.W.2d 608 (2009). However, a
finding that a proposed amendment to a pleading would be
futile is reviewed de novo. See Bailey v. First Nat. Bank of
Chadron, 16 Neb. App. 153, 741 N.W.2d 184 (2007).
V. ANALYSIS
1. Service of Process
Appellants first contend that the district court erred in find-
ing that they failed to properly serve Gardner. Gardner brought
her motion under § 6-1112(b)(2), (4), (5), and (6). In connec-
tion with her § 6-1112(b)(2), (4), and (5) motions, Gardner
alleged that Appellants improperly served her and that the dis-
trict court lacked personal jurisdiction over her.
[6] The Nebraska Supreme Court has stated:
[W]hen a motion to dismiss raises a defense under
§ 6-1112(b)(6) and any combination of § 6-1112(b)(2),
(4), and (5), the court should consider dismissal under
§ 6-1112(b)(2), (4), and (5) first and should consider
dismissal under § 6-1112(b)(6) only if it determines that
it has jurisdiction and that process and service of process
were sufficient.
Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 642, 844
N.W.2d 264, 274 (2014). Accordingly, we first address the
district court’s service-of-process-related findings governing
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Cite as 30 Neb. App. 767Gardner in order to determine whether we need to address the
court’s rulings under § 6-1112(b)(6).
[7] In connection with her § 6-1112(b)(2), (4), and (5)
motions, Gardner offered, and the court received into evidence,
affidavits by Gardner and Poppert, a risk manager at UNMC.
Appellants offered, and the court received into evidence, an
affidavit by Bolden and two affidavits by her attorney with
attachments. Although Appellants contend the court abused
its discretion in converting Gardner’s motion to a summary
judgment, the Nebraska Supreme Court has held that when
the issue on a motion to dismiss is personal jurisdiction, affi-
davits may be submitted without converting the motion into
one for summary judgment. See RFD-TV v. WildOpenWest
Finance, 288 Neb. 318, 849 N.W.2d 107 (2014). Accordingly,
the district court was authorized to receive and review the
affidavits submitted on Gardner’s § 6-1112(b)(2), (4), and (5)
motions without converting the matter to a summary judg-
ment proceeding.
The affidavits proffered by Gardner alleged that Gardner
was not an employee of UNMC, that she was employed by
Nebraska Medicine (a separate legal entity); that Appellants
attempted to serve her at UNMC and not at Nebraska Medicine;
and that, although Gardner received notice of the lawsuit
shortly after it was served, she did not know the person who
signed the return of service on her behalf nor did she autho-
rize that person to do so. In response, Appellants alleged
that Gardner was listed as an instructor on UNMC’s web-
site, together with information including her business address,
phone number, and email address, as well as her degrees, train-
ing, and certificates; that Gardner had consistently informed
Appellants that she was an employee of UNMC; that after
serving Gardner at UNMC, Appellants received a “Return
Receipt” signed by the UNMC mail carrier who checked a box
denoting he was an “[a]gent” for Gardner; that Appellants filed
a notice of claim with the Board against Gardner and UNMC
based upon their understanding of Gardner and her employer;
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Cite as 30 Neb. App. 767that the Board consistently represented it was considering the
claim, while neither Gardner, UNMC, or the Board ever hinted
or suggested the claim involved the wrong employer or litigant
or that Gardner was not properly served in connection with
the litigation.
After reviewing this evidence, the district court found:
The Court file contains a certified mail receipt with a
postmark from Lincoln, Nebraska[,] on April 1, 2020[,]
sent to . . . Gardner at [UNMC] in Omaha. It also con-
tains a return receipt signed by an individual different
than [Gardner] who is identified as an agent and it sets
for a date of delivery of April 4, 2020. In her affidavit . . .
Gardner states that she does not know the individual who
signed the return of service and that she did not authorize
said individual to accept service of process on her behalf.
[Gardner’s] statements are not refuted by any evidence.
Therefore, the Court further finds [that] Gardner was not
properly served in this action and that the [Appellants’]
amended complaint should also be dismissed on the
grounds of want of proper service.
To perfect service of a summons in this state, Neb. Rev. Stat.
§ 25-505.01 (Reissue 2016) provides, in relevant part:
(1) Unless otherwise limited by statute or by the court,
a plaintiff may elect to have service made by any of the
following methods:
....
(c) Certified mail service which shall be made by (i)
within ten days of issuance, sending the summons to the
defendant by certified mail with a return receipt requested
showing to whom and where delivered and the date of
delivery, and (ii) filing with the court proof of service
with the signed receipt attached[.]
To perfect service on an individual in this state, Neb.
Rev. Stat. § 25-508.01(1) (Reissue 2016) further provides that
“[a]n individual party, other than a person under the age of
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Cite as 30 Neb. App. 767fourteen years, may be served by personal, residence, certified
mail, or designated delivery service.”
Appellants attempted to serve Gardner, an individual,
by certified mail at the office of UNMC, which Appellants
deemed to be Gardner’s employer. Gardner claims that service
was improper even though the certified mail return receipt
was signed for by the UNMC mail carrier, attesting to be
Gardner’s agent; the certified mail service was served within
10 days of the issuance of the summons; and the return receipt
was timely filed with the court. More specifically, Gardner
claims that Appellants did not comply with § 25-505.01(1),
because although she received the summons shortly after it
was sent to the office of UNMC, UNMC was not her employer
and the summons was signed for by an individual that she did
not authorize to be her agent for service of process.
[8] In addressing a similar contention in Doe v. Board of
Regents, 280 Neb. 492, 508, 788 N.W.2d 264, 280 (2010),
overruled on other grounds, Davis v. State, 297 Neb. 955, 902
N.W.2d 165 (2017), the Nebraska Supreme Court stated:
Unlike many state statutes that permit certified mail
service, § 25-505.01 does not require service to be sent
to the defendant’s residence or restrict delivery to the
addressee. But due process requires notice to be reason-
ably calculated to apprise interested parties of the pend­
ency of the action and to afford them the opportunity to
present their objections.
Thus, the question here is whether Appellants’ service efforts
were reasonably calculated to apprise Gardner of the pendency
of the action and to afford her the opportunity to present her
objections to the action. The district court found that because
notice was sent to the office of UNMC, which turned out not
to be Gardner’s actual direct employer, and was signed for by
an individual to whom Gardner did not give explicit author-
ity to accept service on her behalf, the due process criterion
was not met in this instance. On this specific record, we dis-
agree. Although Gardner offered affidavits which provided
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BOLDEN v. BOARD OF REGENTS
Cite as 30 Neb. App. 767that UNMC was not her direct employer, Appellants provided
evidence which explained the source of their confusion. They
claim that Gardner directly expressed to them that she was
employed by UNMC; that she was listed on UNMC’s website
as being employed, at least in some capacity, by UNMC; and
that Gardner herself acknowledged receipt of service shortly
after it was served on an individual she claims was not autho-
rized to accept service on her behalf.
In support of Gardner’s contention that Appellants’ service
efforts did not satisfy due process requirements, Gardner cites
to Anthony K. v. State, 289 Neb. 523, 855 N.W.2d 802 (2014).
In Anthony K., the Nebraska Supreme Court reviewed whether
due process requirements were met when the plaintiff served
18 summons to the office of the Department of Health and
Human Services to perfect service on 18 separate employees
of that office in their individual capacities. The record included
evidence that 15 of the employees no longer worked there and
that as to the 3 employees who did, they attested that they did
not receive the certified mail or learn about the summons until
almost 1 year later. The plaintiffs did not even claim they prop-
erly served the 15 former employees. As to those specific facts,
the Nebraska Supreme Court held:
We conclude that service by certified mail at DHHS
was not “reasonably calculated to notify the defendants,
in their individual capacities, of the lawsuit.” [Citation
omitted.] The plaintiffs elected to serve the defendants by
certified mail at their place of employment. Although they
were entitled to elect the method of service, they bore
the risk that the method was not reasonably calculated to
provide notice to the individual that he or she had been
served. [The DHHS employee whose duty it was to sign
for and receive all certified mail addressed to DHHS] did
not know whether [the three active employees] worked
for DHHS. He was not authorized to sign for their certi-
fied mail, and they did not receive the summonses. DHHS
was the largest state agency of the State of Nebraska
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Cite as 30 Neb. App. 767at the time the lawsuit was filed and employed nearly
6,100 employees located across the state. The method of
service by certified mail at DHHS was not reasonably
calculated to notify [the three active employees] that they
had been sued in their individual capacities. The district
court properly dismissed all 18 DHHS employees in their
individual capacities.
Anthony K., 289 Neb. at 535, 855 N.W.2d at 811.
But Anthony K. is distinguishable from the instant case for
several reasons. Here, Appellants attested that Gardner repre-
sented herself as being an employee of UNMC, that she was
actively listed on the UNMC website as being employed by
UNMC in some current capacity, and that she attested that she
received the summons shortly after it was served.
[9-11] Notably, “[w]hen reviewing an order dismissing a
party from a case for lack of personal jurisdiction under Neb.
Ct. R. Pldg. § 6-1112(b)(2), an appellate court examines the
question of whether the nonmoving party has established a
prima facie case of personal jurisdiction de novo.” VKGS v.
Planet Bingo, 285 Neb. 599, 603, 828 N.W.2d 168, 174 (2013).
“An appellate court reviews a lower court’s determination
regarding personal jurisdiction based on written submissions
in the light most favorable to the nonmoving party.” Id. “If the
lower court does not hold a hearing and instead relies on the
pleadings and affidavits, then an appellate court must look at
the facts in the light most favorable to the nonmoving party
and resolve all factual conflicts in favor of that party.” Id. at
603-04, 828 N.W.2d at 174.
Applying that standard here, after reviewing the affidavits
submitted by the parties, although Nebraska Medicine and
UNMC apparently are different legal entities, Appellants sup-
plied sufficient evidence to explain why they served Gardner
at UNMC rather than at Nebraska Medicine. That evidence
includes, but is not limited to, Gardner’s alleged represen-
tations to Appellants that she worked for UNMC and was
listed, at least in some capacity, as affiliated with UNMC on
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Cite as 30 Neb. App. 767UNMC’s website. Further, the evidence indicated that although
perhaps not employed by UNMC in her capacity as a mid-
wife, Gardner had some current connection with UNMC. The
apparent alleged connection between the entities, when taken
together with the fact that Gardner received actual notice of the
summons shortly after it was served, was sufficient, applying
our requisite standard of review here, to find that Appellants
made a prima facie showing that their service method complied
with due process requirements. Accordingly, that portion of the
district court’s order which found that the complaint should be
dismissed for improper service on Gardner is reversed.
2. Motions to Dismiss
Appellants next assign that the district court erred in grant-
ing Gardner and UNMC’s § 6-1112(b)(6) motions and dismiss-
ing both Gardner and UNMC on the grounds that Appellants
failed to file their lawsuit within the requisite statute of limi-
tations period. More specifically, Appellants assign that the
court erred in not finding that a factual question existed as
to whether Gardner and UNMC should be equitably estopped
from asserting a statute of limitations defense against them.
On the face of Appellants’ amended complaint (as opposed
to their proposed second amended complaint), they alleged that
their malpractice claim had accrued by April 27, 2017; that on
February 6, 2019, pursuant to the STCA, they filed their notice
of tort claim against Gardner and UNMC, an alleged agency
of the State of Nebraska; that when no action was taken by the
State of Nebraska on their claim, they withdrew their claim
on March 13, 2020; and that they commenced their lawsuit on
March 31.
In its orders dated August 28, 2020, and March 3, 2021,
the district court found, in part, that the medical malpractice
claims filed by Appellants against Gardner and UNMC were
time barred by the applicable statute of limitations. More
specifically, the district court found in its March 3 order that
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Cite as 30 Neb. App. 767(2018), Appellants filed this action “more than six months after
the statute of limitations had run and more than six months
after they first could have withdrawn their tort claim.” As such,
the district court sustained Gardner and UNMC’s motions to
dismiss filed pursuant to § 6-1112(b)(6).
At the time that Appellants filed their original notice of tort
claim and lawsuit, they believed Gardner was an employee
of UNMC and that UNMC was an agency of the State of
Nebraska. As such, as originally pled, neither party disputes
that Appellants filed a claim under the STCA and that Neb.
Rev. Stat. § 81-8,227(1) (Reissue 2014) provides the applicable
statute of limitations as to Appellants’ complaint as originally
filed. Section 81-8,227(1) provides, in pertinent part:
Except as provided in subsection (2) of this section, every
tort claim permitted under the [STCA] shall be forever
barred unless within two years after such claim accrued
the claim is made in writing to the Risk Manager in the
manner provided by such act. The time to begin suit under
such act shall be extended for a period of six months from
the date of mailing of notice to the claimant by the Risk
Manager or [the] Board as to the final disposition of the
claim or from the date of withdrawal of the claim under
section 81-8,213 if the time to begin suit would otherwise
expire before the end of such period.
Neb. Rev. Stat. § 81-8,213 (Reissue 2014) of the STCA
provides:
No suit shall be permitted under the [STCA] unless
the Risk Manager or [the] Board has made final disposi-
tion of the claim, except that if the Risk Manager or [the
Board] does not make final disposition of a claim within
six months after the claim is made in writing and filed
with the Risk Manager in the manner prescribed by the
[B]oard, the claimant may, by notice in writing, withdraw
the claim from consideration of the Risk Manager or [the
Board] and begin suit under such act.
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Cite as 30 Neb. App. 767In Komar, supra, the claimant similarly served a claim
notice nearly 18 months after her claim accrued but prior to
the 2-year limitations period set forth in § 81-8,227(1). When
the Board’s risk manager failed to dispose of the claim within
6 months of its filing, the claimant eventually withdrew the
claim and filed suit within 6 months of that withdrawal, but not
within 6 months of the date that the claimant could have with-
drawn the claim. After stating that the 2-year limitation period
referenced in § 81-8,227(1) governs both the time to submit a
notice of claim to the risk manager and to commence suit, the
Supreme Court explained:
[The claimant] claimed she was entitled to the 6-month
extension under § 81-8,227(1) and argued the extension
began to run on the date she actually withdrew her claim,
so her complaint filed the next day would be timely. The
State argued that under this court’s holdings in Coleman
v. Chadron State College[, 237 Neb. 491, 466 N.W.2d
526 (1991), overruled on other grounds, Collins v. State,
264 Neb. 267, 646 N.W.2d 618 (2002), disapproved on
other grounds, Geddes v. York County, 273 Neb. 271, 729
N.W.2d 661 (2007),] and Hullinger v. Board of Regents,
[249 Neb. 868, 546 N.W.2d 779 (1996), overruled on
other grounds, Collins, supra, disapproved on other
grounds, Geddes, supra,] the 6-month extension began
to run on the first day Komar could have withdrawn her
claim, not on the date she actually withdrew it.
In both Coleman and Hullinger, this court held: “‘[A]
claimant who files a tort claim with the Risk Manager of
the . . . Board 18 months or more after his or her claim
has accrued, but within the 2-year statute of limitations,
has 6 months from the first day on which the claim may be
withdrawn from the claims board in which to begin suit.’”
Komar v. State, 299 Neb. 301, 304, 908 N.W.2d 610, 612-13
(2018) (emphasis in original). Applying the principles artic-
ulated in Coleman and Hullinger, the Nebraska Supreme
Court held:
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Cite as 30 Neb. App. 767[The claimant] urges this court to overrule our hold-
ings in Coleman and Hullinger, and instead interpret
§ 81-8,227(1) to authorize a 6-month filing extension
that runs from the date a claim is actually withdrawn,
rather than the first date on which the claim could have
been withdrawn under § 81-8,213. For the same reasons
we rejected this interpretation in Hullinger, we reject
it here. Such a construction would allow claimants to
extend the 2-year limitations period for as long as they
wanted and then receive an additional 6 months to file
suit once they finally withdrew the claim. In addition, the
expansive interpretation urged by [the claimant] runs con-
trary to the settled rule that statutes purporting to waive
the State’s protection of sovereign immunity are strictly
construed in favor of the sovereign.
Komar, 299 Neb. at 313-14, 908 N.W.2d at 618.
On the face of the complaint, Appellants’ claim accrued no
later than April 27, 2017. Without extension, the 2-year statute
of limitations would run on April 27, 2019, which was 2 years
from the date Appellants’ claim accrued. However, because
Appellants filed their notice of claim on February 6, 2019,
more than 18 months following the lawsuit’s accrual date but
before the 2-year limitations period, Appellants were entitled
to a 6-month extension in which to file their claim as that
extension is described in § 81-8,227(1). Appellants alleged that
the Board failed to respond to their notice of claim within 6
months of their filing and that they eventually withdrew their
claim. As such, applying the principles of Komar, the 6-month
period within which Appellants were obligated to file their
claim commenced to run on August 7, 2019, the first date
upon which Appellants could have withdrawn their claim. See
Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007).
This meant that Appellants were obligated to file their lawsuit
on or before February 7, 2020. Because Appellants with-
drew their claim and failed to file their lawsuit on or before
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Cite as 30 Neb. App. 767February 7, 2020, their lawsuit filed against Gardner, acting as
an alleged agent of UNMC, and UNMC was untimely.
Notwithstanding this language in Komar, Appellants argue
that the Nebraska Supreme Court’s holding in Collins v. State,
264 Neb. 267, 646 N.W.2d 618 (2002), disapproved on other
grounds, Geddes, supra, should dictate a different result. In
Collins, the Nebraska Supreme Court addressed facts similar to
the facts we summarized in Komar above; however, Collins is
distinguishable in that the claimant in Collins never withdrew
her claim prior to filing her lawsuit. Instead, the Board actually
denied the claim in Collins and, despite the fact that the claim-
ant failed to file suit within 6 months of the date she could
have withdrawn it, the Nebraska Supreme Court held:
Under the plain language of § 81-8,227, a claimant has
6 months to file suit after notice of the denial of the claim
is mailed by the claims board. The reasoning of Coleman
and Hullinger [governing situations in which a claimant
chose to withdraw a claim from the claims board] does
not apply to claims that are decided by the claims board.
Accordingly, we hold that a claimant who files a tort
claim with the Risk Manager of the . . . Board 18 months
or more after his or her claim has accrued, but within 2
years as provided by § 81-8,227(1), has 6 months to file
suit from the date the board gives written notice to the
claimant as to the final disposition of the claim.
Collins, 264 Neb. at 272, 646 N.W.2d at 621.
Appellants argue that because they alleged the Board mis-
represented on multiple occasions that it was considering their
claim, Gardner and UNMC should be equitably estopped from
asserting the statute of limitations provided in § 81-8,227(1)
on the basis that, had the Board made a disposition of their
claim, Appellants would have had an additional 6 months
from the date of disposition to timely file their claim even if
it was outside the period of time Appellants could have with-
drawn it. But Appellants’ argument is misplaced. The district
court was requested to perform a § 6-1112(b)(6) analysis in
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Cite as 30 Neb. App. 767connection with Appellants’ original claim as filed. As to
that motion, the amended complaint, on its face, alleged that
Appellants had withdrawn their claim and filed their lawsuit
more than 6 months after the time Appellants could have with-
drawn their claim. Applying the principles in Komar v. State,
299 Neb. 301, 908 N.W.2d 610 (2018), the district court prop-
erly dismissed Appellants’ claim as time barred. Appellants’
original amended complaint did not contain allegations gov-
erning misrepresentations by the Board or a request for equi-
table estoppel. Those issues were raised in connection with its
motion to amend and proposed second amended complaint.
We will consider that assignment and argument below. But as
filed and originally pled, Appellants’ amended complaint (as
distinguished from their proposed second amended complaint)
contained no such equitable allegations, and the district court
properly found that under § 81-8227(1), Appellants’ claim was
not timely filed against UNMC or Gardner acting as its agent.
This assigned error fails.
3. Summary Judgment Deficiencies
[12] Appellants next argue that the district court erred in
converting Gardner’s § 6-1112(b)(6) motion to a motion for
summary judgment, considering Gardner’s exhibit consisting
of a supplemental affidavit by Poppert including attachments
in connection therewith and allowing the matter to proceed
notwithstanding Gardner’s failure to comply with summary
judgment procedural statutes. But as we noted in the previ-
ous section of the opinion, Appellants’ claim as pled on its
face demonstrates Appellants failed to state a claim upon
which relief can be granted against Gardner and UNMC. As
such, it was unnecessary to convert Gardner’s motion to one
of summary judgment. Any alleged error committed by the
district court in connection with this assigned error is unnec-
essary to the disposition of this appeal. An appellate court is
not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. Preserve the
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Cite as 30 Neb. App. 767Sandhills v. Cherry County, 310 Neb. 184, 964 N.W.2d 721(2021). This assigned error fails.
4. Motion to Amend
Appellants next assign that the district court erred in deny-
ing their motion to amend. In connection with this motion,
Appellants tendered a proposed second amended complaint
that generally averred various reasons why it originally filed
suit against UNMC and not Nebraska Medicine; why it origi-
nally filed suit against Gardner in her capacity as an employee
of UNMC and not Nebraska Medicine; and why it desired
to amend to add Nebraska Medicine as a party and change
Gardner’s designation to an employee of Nebraska Medicine,
to add three additional employees of UNMC as parties to the
lawsuit, and to include equitable reasons why Gardner and
UNMC, as well as Nebraska Medicine, should be estopped
from asserting a statute of limitations defense in connection
with their claims.
As it relates to Appellants’ motion, the district court found
that amending the complaint would be futile because “[t]o
allow [Appellants’] motion and proposed amendments would
place the physicians and Nebraska Medicine in the position
of having to defend a time-barred lawsuit.” As such, the court
denied Appellants’ motion to amend.
Appellants contend that the court erred in refusing to allow
them to amend the complaint. In furtherance of their position,
they argue that Gardner, the Board, UNMC, and Nebraska
Medicine’s acts and omissions created a factual question as to
whether Gardner and UNMC, as well as Nebraska Medicine,
should be estopped from asserting a statute of limitations
defense and that the district court erred in failing to allow them
to amend their complaint to add new parties and to assert their
equitable theory.
[13] Permission to amend a pleading is addressed to the
discretion of the trial court, and the trial court’s decision will
not be disturbed absent an abuse of discretion. Ferer v. Aaron
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Cite as 30 Neb. App. 767Ferer & Sons Co., 278 Neb. 282, 770 N.W.2d 608 (2009).
However, a finding that a proposed amendment to a pleading
would be futile is reviewed de novo. See Bailey v. First Nat.
Bank of Chadron, 16 Neb. App. 153, 741 N.W.2d 184 (2007).
A motion to amend should only be deemed as being futile if
the amendment could not survive a § 6-1112(b)(6) motion to
dismiss. See Bailey, supra.After reviewing Appellants’ proposed amended complaint,
the court found that amendment would be futile. Specifically,
the district court found that “no reasonable amendments to
an amended complaint of [Appellants] could be made which
would allege an action that would not be time barred by the
statute of limitations.”
Appellants specifically argue that the district court erred in
this finding for three reasons: First, Appellants argue that their
new allegations of misrepresentations made by the Board gov-
erning their ongoing investigation of Appellants’ claim were
sufficient to create a factual question as to whether UNMC
and its agents should be estopped from asserting a statute of
limitations defense. Second, Appellants argue that a similar
principle should apply in relation to their efforts to add three
UNMC employees as parties to the lawsuit. Third, Appellants
argue that their new allegations of misrepresentations made by
Gardner and UNMC governing Gardner’s employment status,
followed by the concealment of Gardner’s real employer by
Gardner, UNMC, Nebraska Medicine, and the Board, cre-
ated a factual question as to whether Nebraska Medicine and
Gardner should be estopped from asserting a statute of limita-
tions defense as to Appellants’ claims filed against Nebraska
Medicine and Gardner and as to whether Nebraska Medicine
could be substituted as a party to the lawsuit. We will address
these arguments independently.
Appellants first argue that their allegations in paragraphs
44 through 65 of the proposed second amended complaint
were sufficient to create a factual question as to whether
UNMC and its agents should be estopped from asserting a
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Cite as 30 Neb. App. 767statute of limitations defense to the claims filed against them.
Specifically, Appellants argue the Board’s multiple affirmative
representations that they were in receipt of Appellants’ claim,
that they were reviewing the claim, and that a response would
be forthcoming should be sufficient to preserve Appellants’
claims against UNMC and its agents. We disagree.
[14] Under the doctrine of equitable estoppel, estoppel
applies when a party engages in (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 will 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 the means of knowledge of the truth as to the facts in
question; (5) reliance, in good faith, upon the conduct or state-
ments 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. See Great Northern
Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d
378 (2021).
[15,16] In applying the doctrine of equitable estoppel to a
statute of limitations defense, the Nebraska Supreme Court
stated:
The equitable doctrine of estoppel was discussed at
length by this court in State Farm Mut. Auto. Ins. Co.
v. Budd, 185 Neb. 343, 346, 175 N.W.2d 621, 623-24
(1970), [overruled on other grounds, Aken v. Nebraska
Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994),]
wherein it stated: “By the great weight of authority, the
equitable doctrine of estoppel in pais may, in a proper
case, be applied to prevent a fraudulent or inequitable
resort to a statute of limitations and a defendant may, by
his representations, promises, or conduct be so estopped
where the other elements of estoppel are present. See
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Cite as 30 Neb. App. 767Annotation, 24 A.L.R.2d 1417. ‘Equitable estoppel rests
largely on the facts and circumstances of the particular
case and will be applied where the wisdom and justice
of the principle are founded upon equity, morality, and
justice in accordance with good conscience, honesty, and
reason. Under such circumstances, the doctrine subserves
its true purpose as a practical, fair, and necessary rule of
law.’ Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d
380 [1962].
“‘Equitable estoppels cannot in the nature of things be
subjected to fixed and settled rules of universal applica-
tion like legal estoppels, nor be hampered by the narrow
confines of a technical formula.
“‘Equitable estoppel rests largely on the facts and cir-
cumstances of the particular case . . . .
“‘“. . . a person is held to a representation made or
a position assumed, where otherwise inequitable conse-
quences would result to another who, having the right to
do so under all the circumstances of the case, has, in good
faith, relied thereon.”’ National Union Fire Ins. Co. v.
Bruecks, 179 Neb. 642, 139 N.W.2d 821 [1966].”
Muller v. Thaut, 230 Neb. 244, 253-54, 430 N.W.2d 884,
890-91 (1988).
Appellants argue that the Board’s representations that it
was still investigating Appellants’ claims and that a response
would be forthcoming, on its face, states a claim for which
relief can be granted applying the doctrine of equitable estop-
pel. As we stated earlier, once Appellants filed their notice of
claim more than 18 months from the date the claim occurred,
they were prohibited from filing their claim until the Board
responded. However, because the Board failed to respond
within 6 months of the time the claim was presented, Appellant
then had 6 months from that date to withdraw their claim and
file suit. See Komar v. State, 299 Neb. 301, 908 N.W.2d 610(2018). Appellants claim they did not withdraw the claim dur-
ing that time because of the Board’s representations. But none
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Cite as 30 Neb. App. 767of Appellants’ allegations suggest a time in which the Board
agreed it would respond. And since the Board failed to do so
within 6 months of the time in which Appellants filed their
claim, Appellants were legally entitled to either (1) withdraw
their claim and file suit within 6 months of the time they could
have withdrawn the claim, see Komar, supra, or (2) wait until
the Board responded and file their lawsuit within 6 months
thereafter, see Collins v. State, 264 Neb. 267, 646 N.W.2d
618 (2002), disapproved on other grounds, Geddes v. York
County, 273 Neb. 271, 729 N.W.2d 661 (2007). Appellants did
neither. Instead of timely withdrawing their claim and filing
suit, Appellants untimely withdrew their claim and filed suit.
Applying the principles set forth in Komar, supra, Appellants’
claim was untimely filed. Because Appellants had a remedy
available to them notwithstanding the alleged representations
of the Board, they failed to state a claim of good faith reason-
able reliance on the Board’s alleged misrepresentations. This
first argument fails.
As it relates to Appellants’ second argument, any attempt to
add the three additional employees of UNMC to the lawsuit
suffers the same fate. These additional parties were alleged to
be employees of UNMC, and for the same reason we articu-
lated above, the doctrine of equitable estoppel would not apply
to render the claim timely filed against them. The claim filed
against UNMC and its employees or agents was filed outside
of the limitations period set forth in § 81-8,227(1), and the doc-
trine of equitable estoppel, as pled, does not bar its application.
Appellants’ second argument fails.
But we reach a different conclusion as to Appellants’ third
argument. Here, Appellants argue for a different application of
the doctrine of equitable estoppel. Appellants argue that their
multiple allegations of misrepresentations made by Gardner
and UNMC that Gardner was an employee of UNMC, when
taken together with their notice to the Board, placed Gardner,
UNMC, Nebraska Medicine, and the Board on notice that
Appellants were pursuing their lawsuit against the wrong
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Cite as 30 Neb. App. 767party. Notwithstanding this mistake, due to the alleged mis-
representations by Gardner and UNMC, Appellants allege that
Gardner, UNMC, Nebraska Medicine, and the Board effec-
tively “la[id] in the weeds” and concealed the identity of
Gardner’s true employer until after the statute of limitations
had run. Appellants assert that those misrepresentations, fol-
lowed by their subsequent concealment, created a factual ques-
tion as to whether Nebraska Medicine and Gardner should be
estopped from asserting a statute of limitations defense. We
agree that a factual question exists, and the district court erred
in failing to allow Appellants to amend as to this aspect of
their claim.
The equitable doctrine of estoppel may, in a proper case, be
applied to prevent a fraudulent or inequitable resort to a statute
of limitations, and a defendant may, by his or her representa-
tions, promises, or conduct, be so estopped where the other
elements of estoppel are present. Muller v. Thaut, 230 Neb.
244, 430 N.W.2d 884 (1988). Here, Appellants alleged (1) that
Gardner and UNMC falsely represented Gardner’s employer
and that Gardner, UNMC, Nebraska Medicine, and the Board
then concealed Gardner’s true employer’s identity once they
learned Appellants mistakenly relied on it; (2) that by continu-
ing to conceal the true identity of Gardner’s employer, there
was an intention that Appellants would continue to rely on the
mistake of fact occasioned by the misrepresentations; (3) that
Gardner, UNMC, Nebraska Medicine, and the Board had actual
or constructive notice of the real facts; (4) that Appellants
lacked knowledge and the means of knowledge of the true
facts; (5) that Appellants relied in good faith on the original
representations and subsequent concealment of Gardner’s true
employer’s identity in pursuing a claim against UNMC under
the STCA rather than pursuing a normal tort claim against
Nebraska Medicine and Gardner; and (6) that had Appellants
known the true identity of Gardner’s employer, they would
have timely filed a claim against Nebraska Medicine and
Gardner within the 2-year statute of limitations.
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Cite as 30 Neb. App. 767Gardner and UNMC urge that Appellants’ attempt to amend
their complaint and substitute Nebraska Medicine for UNMC
as a party also requires analysis of the relation-back doctrine
found in Neb. Rev. Stat. § 25-201.02(2) (Reissue 2016), and
its associated jurisprudence. We disagree. Section 25-201.02
provides, in pertinent part:
(2) If the amendment changes the party or the name of
the party against whom a claim is asserted, the amendment
relates back to the date of the original pleading if (a) the
claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, and (b)
within the period provided for commencing an action the
party against whom the claim is asserted by the amended
pleading (i) received notice of the action such that the
party will not be prejudiced in maintaining a defense on
the merits and (ii) knew or should have known that, but
for a mistake concerning the identity of the proper party,
the action would have been brought against the party.
On its face, the relation-back doctrine applies when a lawsuit
is timely brought against a mistaken party and the claimant
desires to substitute a mistaken party for a proper one. In such
circumstances, the claimant needs the relation-back doctrine in
order for the substitution to be considered timely filed against
the substituted party.
That is not the case here. As to Appellants’ desire to sub-
stitute now, the original action was not timely filed. Relating
the second amended complaint back to the first would not
remedy the untimely filed original action. Instead, Appellants
have alleged that they should be able to amend their original
amended complaint to now sue Nebraska Medicine and Gardner
and that both such parties should be equitably estopped from
asserting a statute of limitations defense in its entirety. If they
are equitably estopped from doing so, there is no need for
application of the relation-back doctrine. And although both
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Cite as 30 Neb. App. 767doctrines involve similar or even overlapping considerations,
the elements are separate and distinct.
We hold that in its second amended complaint, Appellants
sufficiently alleged facts which could result in application
of the doctrine of equitable estoppel to the statute of limita-
tions defenses of Nebraska Medicine and Gardner acting in
her capacity as an employee of Nebraska Medicine. Although
we are mindful that the specific representations alleged were
made by Gardner and UNMC, we recognize that as now
alleged, Gardner is an employee of Nebraska Medicine which
brings into question what information she had and which
would be imputed to Nebraska Medicine. As such, we cannot
say Appellants’ second amended complaint, on its face, does
not survive a § 6-1112(b)(6) analysis. As such, we hold the
district court erred in failing to allow Appellants to amend
their complaint as it relates to allegations against Nebraska
Medicine and Gardner in her capacity as an employee of
Nebraska Medicine.
VI. CONCLUSION
In sum, we hold the district court erred in dismissing
Appellants’ complaint for failing to properly serve Gardner,
but properly dismissed Appellants’ first amended complaint
because that claim, filed against Gardner, in her capacity as an
employee of UNMC, and UNMC, was filed outside the appli-
cable statute of limitations period set forth in § 81-8,227(1).
The first amended complaint contained no allegations govern-
ing application of the doctrine of equitable estoppel. However,
as to Appellants’ motion to amend their complaint a second
time to substitute Nebraska Medicine as a party and sue
Gardner in her capacity as an employee of Nebraska Medicine,
we hold the district court erred in failing to allow Appellants to
so amend. Although we find that Appellants’ second amended
complaint could survive a § 6-1112(b)(6) motion to dismiss, we
make no substantive determination as to whether Appellants’
equitable estoppel claim will succeed on the merits. At this
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Cite as 30 Neb. App. 767stage of the proceedings, we need only find that, as pled,
Appellants stated a claim upon which relief can be granted.
As such, we affirm the district court’s dismissal of Appellants’
amended complaint and to that portion of the order over­ruling
Appellants’ motion to amend against UNMC or additional
UNMC employees, but we reverse that portion of the district
court’s order denying Appellants’ motion to amend as it relates
to allegations against Nebraska Medicine and Gardner, as an
employee of Nebraska Medicine, and remand the cause for
further proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.