Hike v. State
297 Neb. 212
| Neb. | 2017Background
- The Hikes owned property from which the State condemned 1.05 acres in 2008 for U.S. Highway 75; they pursued a condemnation action (Hike I) and appealed a jury verdict, which was affirmed.
- During pretrial construction in August 2011, heavy machinery allegedly caused structural damage to the Hikes’ residence, later estimated at $51,829 by experts.
- At trial in Hike I the district court granted the State’s motion in limine excluding evidence of the post-taking structural damage as not proximately caused by the taking; this evidentiary ruling was affirmed on appeal in Hike I.
- The Hikes did not amend their condemnation complaint to add an inverse-condemnation claim; instead they appealed the evidentiary ruling and only filed a separate inverse-condemnation suit against the State on April 17, 2015.
- The State moved for summary judgment arguing the claim was barred by Neb. Rev. Stat. § 25-218’s 2-year statute of limitations; the district court granted summary judgment and the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State is judicially estopped from asserting SOL defense | State previously argued Hikes should bring separate action; thus cannot now assert time bar | State’s earlier position concerned admissibility in condemnation trial and is not inconsistent with asserting a SOL defense later | No estoppel: no inconsistent positions warranting judicial estoppel; Hikes failed to show bad faith or intent to mislead |
| Which statute of limitations governs inverse-condemnation claims against the State | § 25-202 (10-year) applies because inverse condemnation is akin to actions to recover title/possession | § 25-218 (2-year) controls for claims against the State because it specifically bars claims against the State within 2 years | § 25-218 applies to inverse-condemnation claims against the State; it is more specific when the State is defendant |
| When did the Hikes’ inverse-condemnation claim accrue and was it timely | Claim accrues when damage occurs (Aug 2011); asserting it during Hike I sufficed to bring action within 2 years | Claim was not brought as a separate action until Apr 17, 2015; Hikes did not institute proceedings within 2 years | Claim accrued in August 2011; Hikes did not "bring" (sue) until April 2015; claim barred by 2-year SOL |
| Whether a constitutional (self-executing) right under Neb. Const. art. I, § 21 removes SOL defense | Hikes argued constitutional self-execution guarantees compensation irrespective of statutory SOL | State: procedural remedy governed by statutes and SOL applies; issue not properly raised on appeal | Court declined to consider constitutional argument as it was not properly assigned in the initial brief |
Key Cases Cited
- Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (Neb. 2014) (prior appeal affirming exclusion of structural-damage evidence in condemnation trial)
- Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (Neb. 1943) (applied 2-year statute against State for property-taking claims)
- Czarnick v. Loup River P. P. Dist., 190 Neb. 521, 209 N.W.2d 595 (Neb. 1973) (applied 2-year SOL for claims against the State)
- Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (Neb. 1977) (held 10-year SOL under §25-202 applied to inverse-condemnation actions against political subdivisions)
- Steuben v. City of Lincoln, 249 Neb. 270, 543 N.W.2d 161 (Neb. 1996) (applied 10-year statute to inverse-condemnation claims against a city)
- Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (Neb. 1993) (doctrine on divested jurisdiction during appeal; distinguishes when separate action may proceed)