Hike v. State
297 Neb. 212
| Neb. | 2017Background
- In 2008 the State condemned 1.05 acres of the Hikes’ property for U.S. Highway 75; the Hikes tried to recover remaining-damage at trial but the court excluded evidence of structural damage to their home as not proximately caused by the taking.
- The Hikes appealed that evidentiary ruling; in Hike I the Nebraska Supreme Court affirmed exclusion, finding the structural damage occurred after the taking and was not the proximate result of the condemnation.
- Construction by the State’s contractor began in August 2011; the Hikes’ experts attributed about $51,829 in structural damage to that work.
- The Hikes did not amend their condemnation complaint to assert a separate inverse-condemnation claim during the original proceeding or thereafter until they filed a separate complaint on April 17, 2015.
- The State moved for summary judgment arguing the inverse-condemnation claim against the State is barred by the 2-year limitations period in Neb. Rev. Stat. § 25-218; the district court granted summary judgment and the Hikes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judicial estoppel prevents State from asserting limitations defense | State previously said structural damage belonged in a separate action, so it cannot now say that separate action is time-barred | State’s earlier positions concerned admissibility and proximate cause, not that the Hikes were prevented from filing later; no bad-faith or intent to mislead shown | Judicial estoppel does not apply; State may assert statute-of-limitations defense |
| Which statute of limitations governs inverse-condemnation claims against the State | § 25-202 (10-year limitations for actions affecting title/possession) should apply | § 25-218 (2-year limitations for claims against the State) is controlling because it specifically governs claims against the State | § 25-218 (2-year) applies to inverse-condemnation claims against the State |
| When did the Hikes’ inverse-condemnation cause of action accrue; did they timely bring it | The Hikes argue they effectively raised the claim in Hike I, within two years | The Hikes did not bring a separate claim (i.e., file a complaint or amend) until April 17, 2015; accrual was August 2011 | Cause accrued in August 2011; Hikes did not bring the separate action within 2 years, so claim is time-barred |
| Whether the Hikes may rely on a self-executing constitutional right under art. I, § 21 to avoid the statutory limitations | (Raised for first time in reply) Argue constitutional self-execution entitles them to compensation notwithstanding § 25-218 | State: procedural limitations apply to actions against the State; argument not properly raised on appeal | Argument not considered (not assigned in initial brief); in any event limitations govern procedure against the State |
Key Cases Cited
- Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (Neb. 2014) (affirming exclusion of post-taking structural-damage evidence in condemnation trial)
- Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (Neb. 1977) (held § 25-202 governs inverse-condemnation claims not brought against the State)
- Steuben v. City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (Neb. 1996) (applied § 25-202 in inverse-condemnation context against a municipality)
- Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (Neb. 1943) (applied 2-year limitations for claims against the State for taking or damaging property)
- Czarnick v. Loup River P.P. Dist., 190 Neb. 521, 209 N.W.2d 595 (Neb. 1973) (applied § 25-218 to suits against the State for property damage)
- Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (Neb. 1993) (discusses effect of a pending appeal on trial-court jurisdiction and exceptions)