Great Northern Ins. Co. v. Transit Auth. of Omaha , 308 Neb. 916 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/09/2021 08:11 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916Great Northern Insurance Company, an Indiana
corporation, appellee and cross-appellant,
v. Transit Authority of the City of Omaha,
a governmental subdivision of the State of
Nebraska, individually and doing business
as Metro Area Transit, appellant and
cross-appellee, and Jessica Johnson,
an individual, appellee.
___ N.W.2d ___
Filed April 16, 2021. No. S-19-913.
1. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
2. Rules of the Supreme Court: Appeal and Error. Parties who wish to
secure appellate review of their claims must abide by the rules of the
Nebraska Supreme Court. Any party who fails to properly identify and
present its claim does so at its own peril.
3. ____: ____. Depending on the particulars of each case, failure to comply
with the mandates of Neb. Ct. R. App. P. § 2-109(D) (rev. 2014) may
result in an appellate court waiving the error, proceeding on a plain error
review only, or declining to conduct any review at all.
4. Appeal and Error. The assignments of error section is one of the most
critical sections of an appellant’s or cross-appellant’s brief.
5. Rules of the Supreme Court: Appeal and Error. Assignments of error
consisting of headings or subparts of argument do not comply with the
mandate of Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).
6. Appeal and Error. Where the assignments of error consist of headings
or subparts of arguments and are not within a designated assignments of
error section, an appellate court may proceed as though the party failed
to file a brief, providing no review at all, or, alternatively, may examine
the proceedings for plain error.
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 9167. ____. The decision to proceed on plain error is at the discretion of the
appellate court.
8. Actions: Political Subdivisions Tort Claims Act. The Political
Subdivisions Tort Claims Act specifies various nonjudicial procedures
which have been characterized as conditions precedent to the filing of
a lawsuit, and a claimant’s failure to follow these procedures may be
asserted as an affirmative defense in an action brought under the act.
9. Political Subdivisions Tort Claims Act: Notice. The presuit claim
procedures under the Political Subdivisions Tort Claims Act are admin-
istrative in nature, intended to give the government notice of a recent
tort claim so that it can investigate and, if appropriate, resolve the claim
before suit is commenced.
10. Political Subdivisions: Torts: Jurisdiction. The presuit claim present-
ment requirements are procedural conditions precedent to commenc-
ing a tort action against the government in district court; they are not
jurisdictional.
11. Political Subdivisions Tort Claims Act: Notice: Appeal and Error.
Where the relevant facts are undisputed, whether the notice require-
ments of the Political Subdivisions Tort Claims Act have been satisfied
is a question of law, on which an appellate court reaches a conclusion
independent of the lower court’s ruling.
12. Estoppel: Equity. Six elements must generally be satisfied for the
doctrine of equitable estoppel to apply: (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 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.
13. Political Subdivisions: Claims: Parties. A claimant is entitled to rely
on the representations and procedures of a political subdivision to iden-
tify the party to whom a claim should be addressed for filing—provided
that the plaintiff is diligent in inquiring.
14. Estoppel: Proof. Unless the facts are undisputed or only one reasonable
inference can be drawn from them, whether the facts presented ade-
quately establish estoppel is for the jury or other trier of fact to decide.
15. Summary Judgment: Trial. As a procedural equivalent to a trial, a
summary judgment is an extreme remedy.
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 91616. ____: ____. Summary judgment should not be used to deprive a litigant
of a formal trial if there is a genuine issue of material fact.
17. Summary Judgment. Summary judgment proceedings do not resolve
factual issues, but instead determine whether there is a material issue of
fact in dispute.
18. Summary Judgment: Evidence. When the parties’ evidence would
support reasonable, contrary inferences on the issue for which a movant
seeks summary judgment, it is an inappropriate remedy.
19. Summary Judgment. The overruling of a motion for summary judg-
ment does not decide any issue of fact or proposition of law affecting
the subject matter of the litigation, but merely indicates that the court
was not convinced by the record that there was not a genuine issue as to
any material fact or that the party offering the motion was entitled to a
judgment as a matter of law.
Appeal from the District Court for Douglas County:
Thomas A. Otepka, Judge. Affirmed and remanded for further
proceedings.
Samuel R. O’Neill, Robert M. Schartz, and Julie M. Ryan,
of Abrahams, Kaslow & Cassman, L.L.P., for appellant.
Matthew D. Hammes, of Locher, Pavelka, Dostal, Braddy &
Hammes, and Cheri MacArthur, of Cozen O’Connor, for appel-
lee Great Northern Insurance Company.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In a subrogation action, an insurer brought suit against
a political subdivision for reimbursement of the funds paid
on an insurance claim on behalf of its insured. The politi-
cal subdivision appeals from a denial of summary judg-
ment, arguing that there was no genuine issue that the insurer
failed to comply with the notice requirements of the Political
Subdivisions Tort Claims Act (PSTCA) 1 and that the political
1
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp. 2020).
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916subdivision was not equitably estopped from asserting this
defense. We affirm the order and remand the cause for further
proceedings.
BACKGROUND
Great Northern Insurance Company (Great Northern) filed
an action in subrogation seeking compensation from Transit
Authority of the City of Omaha, doing business as Metro
Area Transit (Metro), under the PSTCA. Great Northern
insured Omaha Performing Arts Society, doing business as
Omaha Performing Arts Center, and its property, the Holland
Performing Arts Center. Metro is a political subdivision cre-
ated by the city of Omaha and, therefore, is subject to
the PSTCA.
This action arose out of damage to the Holland Peforming
Arts Center that resulted from a motor vehicle accident on
October 21, 2016, involving a Metro bus. After Great Northern
paid for the damage pursuant to its insurance policy with
Omaha Performing Arts Society, Great Northern’s attorney
mailed a certified letter dated December 7, 2016, addressed
to “Claims Department[,] Omaha Metro Transit” and titled
“Statutory Notice.”
This letter informed Metro of the subrogation claim, the date
of the incident, and the estimated damages of $340,000, and it
specifically stated, “Please consider this letter as notice of a
potential claim against Metro . . . .”
To determine whom to direct the letter to, Great Northern’s
attorney had checked Metro’s website for the contact informa-
tion of the person responsible for claims. The website, how-
ever, did not provide the identity of any specific person within
Metro for the issuance of statutory notices. No further effort
was made by Great Northern to discover who the proper person
at Metro was to send the statutory notice to.
Great Northern’s letter was signed for at Metro by “F.
Winniski” on December 12, 2016, and was provided to Metro’s
director of legal/human resources. The director is respon-
sible for providing Metro legal advice, coordinating the work
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916of Metro’s outside legal counsel, and administering Metro’s
human resources functions.
The director forwarded Great Northern’s letter to Metro’s
outside counsel. On December 13, 2016, Metro’s outside coun-
sel sent a letter via email to Great Northern’s attorney, advis-
ing that the firm represented Metro and that the firm was in
receipt of the December 7 letter. Outside counsel requested in
the letter that all future correspondence regarding the claim be
directed to him.
Great Northern filed suit against Metro in May 2018. Metro,
as an affirmative defense, challenged Great Northern’s com-
pliance with the PSTCA, specifically claiming that Great
Northern did not properly comply with the notice requirement
of § 13-905. Great Northern pled equitable estoppel as an
affirm­ative defense to any noncompliance.
Metro thereafter moved for summary judgment. In support
of its motion, Metro asserted, among other things, that Great
Northern failed to strictly comply with the notice requirements
of the PSTCA, because it did not address its letter to the proper
person whose duty it was to maintain the official records of
Metro, and that even if the court were to find the letter was
properly sent to the proper official, the substance of the letter
indicates it was a notice of a potential future claim rather than
the current filing of a tort claim and did not make a specific
demand for relief.
Great Northern argued that the claim letter dated December
7, 2016, substantially complied with the PSTCA and satis-
fied the purpose of the statute, which is to give the political
subdivision timely notice so it can investigate and appropri-
ately respond. In the alternative, Great Northern argued that
if the court were to find that the letter did not comply with
the PSTCA, then Metro should be equitably estopped from
asserting a failure to provide adequate notice, because Great
Northern relied upon Metro’s counsel’s response to the letter
and subsequent communications along with Metro’s documen-
tary production to believe that the PSTCA notice requirements
had been properly fulfilled.
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916At the hearing on the motion for summary judgment, it was
undisputed that the executive director is the only official at
Metro whose duty it is to maintain the political subdivision’s
official records. The executive director of Metro, both at the
time of the accident on October 21, 2016, and when Great
Northern sent the first letter on December 7, did not sign for or
receive the letter from Great Northern.
The district court denied Metro’s motion for summary judg-
ment. The district court determined that Great Northern’s letter
was a “claim,” but that it should have been sent to Metro’s
executive director and therefore did not satisfy the notice
requirement of § 13-905. However, the district court found
that Metro had failed to demonstrate there was no genuine
issue concerning Great Northern’s affirmative defense of equi-
table estoppel.
Metro filed a motion to reconsider the order denying Metro’s
motion for summary judgment. Among other things, Metro
argued that the court should reconsider its finding, because
there was no genuine issue that the first, fourth, and sixth ele-
ments of equitable estoppel were not met. The court overruled
the motion to reconsider.
Metro timely appealed the order denying the motion for
summary judgment, which was based on the assertion of sov-
ereign immunity. 2 Great Northern cross-appealed.
ASSIGNMENTS OF ERROR
Neither Metro’s nor Great Northern’s brief has an assign-
ments of error section.
STANDARD OF REVIEW
[1] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judi-
cial process. 3
2
See Neb. Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2020).
3
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916ANALYSIS
There are no assignments of error in the briefs of either
Metro, the appellant, or Great Northern, the cross-appellant.
Both Metro and Great Northern instead include in certain head-
ings throughout their argument sections some statements that
allege the trial court erred in various ways. This is insufficient.
Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014) governs the
mandatory content of a brief of appellant and provides:
The brief of appellant, or plaintiff in an original action,
shall contain the following sections, under appropriate
headings, and in the order indicated:
....
(e) A separate, concise statement of each error a party
contends was made by the trial court, together with the
issues pertaining to the assignments of error. Each assign-
ment of error shall be separately numbered and para-
graphed, bearing in mind that consideration of the case
will be limited to errors assigned and discussed. The court
may, at its option, notice a plain error not assigned.
[2,3] Parties who wish to secure appellate review of their
claims must abide by the rules of the Nebraska Supreme
Court. 4 Any party who fails to properly identify and present its
claim does so at its own peril. 5 Depending on the particulars of
each case, failure to comply with the mandates of § 2-109(D)
may result in an appellate court waiving the error, proceed-
ing on a plain error review only, or declining to conduct any
review at all. 6
4
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
5
Id. See, also, e.g., Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb.
988, 759 N.W.2d 75 (2009); In re Guardianship & Conservatorship of
Larson, 270 Neb. 837, 708 N.W.2d 262 (2006); In re Interest of Natasha
H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999).
6
See In re Interest of Steven S. et al., 27 Neb. App. 831, 936 N.W.2d 762(2019). See, also, Knaub v. Knaub, 245 Neb. 172, 512 N.W.2d 124 (1994);
Harrison v. Harrison, 28 Neb. App. 837, 949 N.W.2d 369 (2020).
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916A cross-appeal must be properly designated, pursuant to
§ 2-109(D)(4), if affirmative relief is to be obtained. 7 When
a brief of an appellee fails to present a “proper” cross-appeal
pursuant to § 2-109(D)(4), we decline to consider its merits. 8
This is consistent with Neb. Ct. R. App. P. § 2-101(E) (rev.
2015), which provides: “The proper filing of an appeal shall
vest in an appellee the right to a cross-appeal against any other
party to the appeal. The cross-appeal need only be asserted in
the appellee’s brief as provided by § 2-109(D)(4).”
A cross-appeal is properly designated by noting it on the
cover of the appellee brief and setting it forth in a separate
division of the brief 9; however, the decisive particulars gov-
erning how we treat failures to fully abide with the rules
for the brief of an appellant, set forth in § 2-109(D)(1), do
not depend on whether the brief is of the appellant or of the
cross-appellant. 10 Rather, they depend upon the nature of the
noncompliance. 11
[4] And we have repeatedly refused to waive the require-
ment of § 2-109(D)(1) that a party set forth a separate and
concise statement of each error the party contends was made
by the trial court, through separately numbered and para-
graphed assignments of error contained in a separate section of
the brief, designated with an appropriate heading, and located
after the statement of the case and preceding the propositions
7
McDonald v. DeCamp Legal Servs., 260 Neb. 729, 619 N.W.2d 583(2000).
8
In re Estate of Graham, 301 Neb. 594, 602, 919 N.W.2d 714, 722 (2018).
9
See In re Interest of Chloe P., 21 Neb. App. 456, 840 N.W.2d 549 (2013).
10
See, e.g., Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019); D.W.
v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019); State v. Dill, 300 Neb.
344, 913 N.W.2d 470 (2018); Friedman v. Friedman, 290 Neb. 973, 863
N.W.2d 153 (2015); In re Interest of Justine J. & Sylissa J., 288 Neb. 607,
849 N.W.2d 509 (2014); Knaub v. Knaub, supra note 6; In re Interest of
Steven S. et al., supra note 6; In re Interest of Chloe P., supra note 9.
11
See id.- 924 -
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916of law. 12 The assignments of error section is one of the most
critical sections of an appellant’s or cross-appellant’s brief.
It gives the opposing party notice of what alleged errors to
respond to and advises the appellate court of what allegations
of error by the trial court it has been called upon to address.
Particularly, designated assignments of error are required not
only by our court rules but also by Neb. Rev. Stat. § 25-1919(Reissue 2016), which states that “[t]he brief of appellant shall
set out particularly each error asserted and intended to be urged
for the reversal, vacation, or modification of the judgment,
decree, or final order alleged to be erroneous . . . .”
[5-7] We have consistently rejected headings in the argu-
ment section as a sufficient substitute for assignments of
error contained in the proper place and properly designated.
Assignments of error consisting of headings or subparts of argu-
ment do not comply with the mandate of § 2-109(D)(1)(e). 13
Neither the appellate court nor the opposing party should have
to sift through headings to discern the errors alleged. Where
the assignments of error consist of headings or subparts of
arguments and are not within a designated assignments of
error section, an appellate court may proceed as though the
party failed to file a brief, providing no review at all, or, alter-
natively, may examine the proceedings for plain error. 14 The
12
See, In re Interest of Samantha L. & Jasmine L., 286 Neb. 778, 839
N.W.2d 265 (2013); In re Interest of Jamyia M., supra note 3.
13
In re Interest of Jamyia M., supra note 3. See, also, D.W. v. A.G., supra
note 10; In re Interest of Samantha L. & Jasmine L., supra note 12; Logan
v. Logan, 22 Neb. App. 667, 859 N.W.2d 886 (2015).
14
See In re Interest of Jamyia M., supra note 3. See, also, D.W. v. A.G.,
supra note 10; Estate of Schluntz v. Lower Republican NRD, 300 Neb.
582, 915 N.W.2d 427 (2018); Steffy v. Steffy, supra note 4; In re Interest of
Samantha L. & Jasmine L., supra note 12; Wilson v. Wilson, 23 Neb. App.
63, 867 N.W.2d 651 (2015); Logan v. Logan, supra note 13; In re Interest
of Laticia S., 21 Neb. App. 921, 844 N.W.2d 841 (2014); In re Interest of
Chloe P., supra note 9.
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916decision to proceed on plain error is at the discretion of the
appellate court. 15
In this appeal in which neither the appellant nor the cross-
appellant has the necessary assignments of error section in its
brief, we elect to proceed to review for plain error. We find
none. Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judi-
cial process. 16
[8-11] The trial court denied Metro’s motion for summary
judgment in which Metro alleged there was no genuine issue
that Great Northern had failed to comply with the presuit claim
procedures of the PSTCA specified in § 13-905 or that Metro
was not equitably estopped from relying on those procedures.
Section 13-905 provides:
All tort claims under the [PSTCA] shall be filed with
the clerk, secretary, or other official whose duty it is to
maintain the official records of the political subdivision,
or the governing body of a political subdivision may
provide that such claims may be filed with the duly con-
stituted law department of such subdivision. It shall be
the duty of the official with whom the claim is filed to
present the claim to the governing body. All such claims
shall be in writing and shall set forth the time and place
of the occurrence giving rise to the claim and such other
facts pertinent to the claim as are known to the claimant.
The PSTCA specifies various nonjudicial procedures which
we have characterized as conditions precedent to the filing
of a lawsuit, and a claimant’s failure to follow these proce-
dures may be asserted as an affirmative defense in an action
brought under the act. 17 The presuit claim procedures under
the PSTCA are administrative in nature, intended to give the
15
Steffy v. Steffy, supra note 4.
16
Estate of Schluntz v. Lower Republican NRD, supra note 14.
17
Hedglin v. Esch, 25 Neb. App. 306, 905 N.W.2d 105 (2017).
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916government notice of a recent tort claim so that it can inves-
tigate and, if appropriate, resolve the claim before suit is
commenced. 18 The presuit claim presentment requirements are
procedural conditions precedent to commencing a tort action
against the government in district court; they are not juris-
dictional. 19 Where the relevant facts are undisputed, whether
the notice requirements of the PSTCA have been satisfied is a
question of law, on which an appellate court reaches a conclu-
sion independent of the lower court’s ruling. 20
[12-14] In denying summary judgment, the district
court found that while Great Northern did not comply with
§ 13-905’s procedural condition precedent of sending notice to
“the clerk, secretary, or other official whose duty it is to main-
tain the official records of the political subdivision,” there was
a genuine issue as to whether Metro was equitably estopped
from claiming the affirmative defense of failing to follow
this procedure. Six elements must generally be satisfied for
the doctrine of equitable estoppel to apply: (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 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 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. 21 A
18
See Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
19
Id.20
Saylor v. State, 306 Neb. 147, 944 N.W.2d 726 (2020).
21
Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461(2003).
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GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 308 Neb. 916c­ laimant is entitled to rely on the representations and proce-
dures of a political subdivision to identify the party to whom a
claim should be addressed for filing—provided that the plain-
tiff is diligent in inquiring. 22 Unless the facts are undisputed
or only one reasonable inference can be drawn from them,
whether the facts presented adequately establish estoppel is for
the jury or other trier of fact to decide. 23
Metro argues in its brief for appellant that as a matter of
law, the content of the letter sent by Great Northern was insuf-
ficient to constitute a written claim under § 13-905, and that
there was no genuine issue that Great Northern did not satisfy
the first, fourth, and sixth elements of equitable estoppel. Great
Northern, for its part, argues in its brief on cross-appeal that
the district court erred in stating in its order denying summary
judgment that Great Northern did not provide statutory notice
of its claim to the proper party and that the doctrine of substan-
tial compliance did not apply to its delivery of the claim letter
to the improper party.
[15-18] As a procedural equivalent to a trial, a summary
judgment is an extreme remedy. 24 Summary judgment should
not be used to deprive a litigant of a formal trial if there is
a genuine issue of material fact. 25 Summary judgment pro-
ceedings do not resolve factual issues, but instead determine
whether there is a material issue of fact in dispute. 26 When the
parties’ evidence would support reasonable, contrary inferences
on the issue for which a movant seeks summary judgment, it is
an inappropriate remedy. 27
22
Id. (Gerrard, J., concurring; McCormack and Miller-Lerman, JJ., join).
23
28 Am. Jur. 2d Estoppel and Waiver § 173 (2011). See, also, Woodard v.
City of Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999).
24
McKinney v. Okoye, 287 Neb. 261, 842 N.W.2d 581 (2014).
25
Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018).
26
Tedd Bish Farm v. Southwest Fencing Servs., 291 Neb. 527, 867 N.W.2d
265 (2015).
27
Wynne v. Menard, Inc., supra note 25.
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Cite as 308 Neb. 916We discern no plainly evident error in the district court’s
determinations that the evidence would support reasonable,
contrary inferences concerning the elements of equitable estop-
pel and that Metro failed to demonstrate it was entitled to
judgment as a matter of law on the grounds that the letter
was not a “claim” pursuant to § 13-905. Additionally, we find
that even if assuming there were such error, it is not of such
a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
The same is true for Great Northern’s complaints regarding
the district court’s reasoning in its order denying summary
judgment—that Great Northern did not provide the statutory
notice of its claim to the proper party and that the doctrine of
substantial compliance did not apply to its delivery of its claim
letter to the improper party.
[19] The overruling of a motion for summary judgment does
not decide any issue of fact or proposition of law affecting the
subject matter of the litigation, but merely indicates that the
court was not convinced by the record that there was not a
genuine issue as to any material fact or that the party offering
the motion was entitled to a judgment as a matter of law. 28 The
parties are still free to litigate the questions the parties debate
in the present appeal, including equitable estoppel, during the
proceedings after remand.
CONCLUSION
On plain error review, we affirm the order of the district
court denying Metro’s motion for summary judgment. We
affirm the order and remand the cause for further proceedings.
Affirmed and remanded for
further proceedings.
28
Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).