Hayes v. Cnty. of Thayer

• Decision Date: 18 March 2014
• Docket Number: No. A–12–903,A–12–903
• Parties: Cecil L. Hayes et al., appellants, v. County of Thayer, Nebraska, appellee.
• Court: Nebraska Court of Appeals

21 Neb.App. 836

844 N.W.2d 347

Cecil L. Hayes et al., appellants,

v.County of Thayer, Nebraska, appellee.

No. A–12–903

Court of Appeals of Nebraska.

Filed March 18, 2014

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.

Syllabus by the Court

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. Pleadings. 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. Pleadings. 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 plaintiff 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 groundedin 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 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 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.

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 representation or concealment of material facts or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; (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 doctrine 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. Estoppel: Limitations of Actions. The mere pendency of negotiations, conducted in good faith with a view toward ultimate compromise, is not itself sufficient to establish estoppel.

Irwin, Judge.

I. INTRODUCTION

Cecil L. Hayes, Robert D. Hayes, and Harold L. Hayes (collectively 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 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 controlledburn was conducted. In late March, the area experienced sustained winds and a fire ignited and caused damage to Hayes' property.

In early April 2009, Hayes retained the services of an investigative 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 affidavit 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 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 judgment. 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 limitations, 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 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 evidence to support the estoppel claim. The court noted that the evidence adduced at the summary judgment hearing demonstrated 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...