Nelssen v. Ritchie , 304 Neb. 346 ( 2019 )


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    304 Nebraska R eports
    NELSSEN v. RITCHIE
    Cite as 
    304 Neb. 346
    Pamela Nelssen, appellant, v.
    H al T. R itchie, appellee.
    ___ N.W.2d ___
    Filed October 25, 2019.   No. S-18-1020.
    1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law. An appellate court has an obligation to reach an independent
    conclusion irrespective of the decision made by the court below.
    2. Equity: Estoppel. Although a party can raise estoppel claims in both
    legal and equitable actions, estoppel doctrines have their roots in equity.
    3. Equity: Appeal and Error. In reviewing judgments and orders dispos-
    ing of claims sounding in equity, an appellate court decides factual
    questions de novo on the record and reaches independent conclusions on
    questions of fact and law.
    4. Legislature: Intent. The intent of the Legislature is expressed by omis-
    sion as well as by inclusion.
    5. Equity: Estoppel. The doctrine of equitable estoppel applies where, as a
    result of conduct of a party upon which another person has in good faith
    relied to his or her detriment, the acting party is absolutely precluded,
    both at law and in equity, from asserting rights which might have other-
    wise existed.
    6. ____: ____. The elements of equitable estoppel are, as to the party
    estopped: (1) conduct which amounts to a false representation or con-
    cealment 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 shall be acted upon
    by, or influence, the other party or other persons; and (3) knowledge,
    actual or constructive, of the real facts. As to the other party, the ele-
    ments are: (1) lack of knowledge and of the means of knowledge of
    the truth as to the facts in question; (2) reliance, in good faith, upon
    the conduct or statements of the party to be estopped; and (3) action or
    inaction based thereon of such a character as to change the position or
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    status of the party claiming the estoppel, to his or her injury, detriment,
    or prejudice.
    7. Waiver: Words and Phrases. Waiver is a voluntary and intentional
    relinquishment of a known right, privilege, or claim.
    8. Waiver: Estoppel. To establish a waiver of a legal right, there must be
    a clear, unequivocal, and decisive act of a party showing such a purpose,
    or acts amounting to an estoppel on his or her part.
    Appeal from the District Court for Lancaster County: Lori
    A. M aret, Judge. Affirmed.
    Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
    for appellant.
    David L. Welch and Kellie Chesire Olson, of Pansing,
    Hogan, Ernst & Bachman, L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    Over 2 decades ago, Pamela Nelssen obtained a judgment
    against Hal T. Ritchie. Nelssen never executed on the judg-
    ment, but Ritchie made payments to her for many years. After
    Ritchie stopped making payments, Nelssen filed a motion to
    revive the judgment. The district court overruled Nelssen’s
    motion on the ground that the statutory deadline to revive the
    dormant judgment had expired. Nelssen now appeals the dis-
    trict court’s decision. We affirm.
    BACKGROUND
    Initial Judgment.
    This dispute arises out of a judgment Nelssen obtained
    against Ritchie in the district court for Lancaster County in
    1996. The record suggests that Nelssen sued Ritchie for failure
    to pay amounts owed under a promissory note, that Ritchie
    failed to respond to the lawsuit, and that Nelssen obtained the
    judgment as a result of Ritchie’s default. The judgment was in
    the amount of $200,000, plus 6 percent interest.
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    Ritchie did not immediately satisfy the judgment, and
    Nelssen did not immediately execute on it. Instead, Ritchie
    made payments to Nelssen beginning in 1996 and ending in
    2017. Ritchie apparently stopped making payments at some
    point in 2017.
    According to Nelssen, Ritchie paid her $132,300 during that
    time. Nelssen contends that, accounting for interest, Ritchie
    now owes her over $360,000.
    Motion for Revivor.
    In 2018, Nelssen filed a motion for revivor of the judgment.
    Ritchie filed an objection to the motion. In it, he argued that
    Nelssen’s motion was untimely. He contended that the judg-
    ment became dormant in 2001 under Neb. Rev. Stat. § 25-1515
    (Reissue 2016) and that, under Neb. Rev. Stat. § 25-1420
    (Reissue 2016), the time period to revive the dormant judgment
    expired in 2011.
    At a hearing on the motion, Nelssen offered an affidavit
    in which she referred to the periodic payments Ritchie made
    to her after the judgment was entered in 1996. The affidavit
    stated, in relevant part:
    3. That I agreed to accept payments from the Defendant,
    . . . Ritchie, in consideration of my agreement to forego
    [sic] executing on the judgment I have against [him] in
    this matter.
    4. That I relied on [Ritchie] to continue to make pay-
    ments on the judgment I obtained in this matter.
    Attached to Nelssen’s affidavit was a list of payments she
    claimed Ritchie made to her. The attachment listed 374 pay-
    ments with amounts ranging between $200 and $15,400. Aside
    from a period between November 2009 and March 2011 in
    which no payments are listed, the attachment lists a payment
    in most months. The only other evidence offered at the hearing
    was an affidavit signed by Nelssen’s counsel that also attached
    the same list of payments. Nelssen contended that the affidavits
    demonstrated that the motion for revivor was timely filed.
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    The district court overruled Nelssen’s motion for revivor
    in a written order. It concluded that Neb. Rev. Stat. § 25-216
    (Reissue 2016), a statute which provides that partial payments
    generally toll the limitations period in contract actions, did not
    extend the time period for Nelssen to seek revivor of a judg-
    ment. It also concluded that the time period was not extended
    by equitable estoppel or waiver.
    Nelssen appeals from this order.
    ASSIGNMENTS OF ERROR
    Nelssen assigns two errors on appeal. She contends that the
    district court erred (1) in finding that Nelssen’s motion for
    revivor of the judgment was time barred and (2) in failing to
    revive the judgment.
    STANDARD OF REVIEW
    [1] Statutory interpretation presents a question of law. Weyh
    v. Gottsch, 
    303 Neb. 280
    , 
    929 N.W.2d 40
    (2019). An appellate
    court has an obligation to reach an independent conclusion
    irrespective of the decision made by the court below. 
    Id. [2,3] Although
    a party can raise estoppel claims in both
    legal and equitable actions, estoppel doctrines have their roots
    in equity. deNourie & Yost Homes v. Frost, 
    289 Neb. 136
    , 
    854 N.W.2d 298
    (2014). In reviewing judgments and orders dispos-
    ing of claims sounding in equity, we decide factual questions
    de novo on the record and reach independent conclusions on
    questions of fact and law. 
    Id. ANALYSIS Dormant
    Judgments and Revivor.
    Two Nebraska statutes that dictate when a judgment becomes
    dormant and when a dormant judgment can be revived are at
    issue in this appeal. Section 25-1515 generally provides that a
    judgment becomes dormant if it has not been executed upon
    within 5 years. See Fry v. Fry, 
    281 Neb. 1001
    , 
    800 N.W.2d 671
    (2011). When a judgment becomes dormant, it ceases to oper-
    ate as a lien on the estate of the judgment debtor. § 25-1515.
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    Even if a judgment creditor allows a judgment to become
    dormant, Nebraska law allows the judgment creditor to seek
    to revive it. Section 25-1420 provides that dormant judgments
    “may be revived in the same manner as is prescribed for reviv-
    ing actions before judgment.” That same statute, however,
    comes with an important caveat: “[N]o judgment shall be
    revived unless action to revive the same be commenced within
    10 years after such judgment became dormant.” 
    Id. The parties
    in this case agree that the judgment was entered
    in 1996, that Nelssen did not execute on the judgment, and that
    she did not attempt to revive it until 2018. The parties disagree,
    however, as to the legal consequences of these facts. Ritchie
    takes the position adopted by the district court: that the judg-
    ment became dormant in 2001 after Nelssen failed to execute
    within 5 years of its entry and that the time period for revivor
    expired 10 years later in 2011.
    Nelssen asserts that the matter is not that simple. She con-
    tends that Ritchie’s payments to her after the entry of judgment
    extended the time period in which she could seek to revive the
    judgment. Nelssen claims that Ritchie’s payments tolled the
    deadline. She also argues that Ritchie cannot rely on the dead-
    line under the doctrines of equitable estoppel and waiver. We
    address each of Nelssen’s arguments below.
    Was Deadline for Revivor Tolled?
    Nelssen contends that the deadline for reviving the dormant
    judgment was tolled as a result of Ritchie’s agreement to make
    payments to her over the years. Nelssen made the same argu-
    ment in the district court, relying on § 25-216. Nelssen is less
    clear on appeal as to the basis for her tolling argument. She
    asserts that the trial court erred by concluding that the deadline
    to seek revivor was not tolled, but does not mention § 25-216
    or point to other authority in support of her assertion.
    Although Nelssen does not explicitly rely upon it, we believe
    § 25-216 is relevant to the question of whether the deadline to
    revive a dormant judgment is tolled if the judgment debtor
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    makes payments in partial satisfaction of the judgment. Section
    25-216 states:
    In any cause founded on contract, when any part of the
    principal or interest shall have been voluntarily paid, or
    an acknowledgment of an existing liability, debt or claim,
    or any promise to pay the same shall have been made in
    writing, an action may be brought in such case within
    the period prescribed for the same, after such payment,
    acknowledgment or promise . . . .
    (Emphasis supplied.)
    This statute has long been understood to provide for tolling
    of a statute of limitations if a party makes a voluntary pay-
    ment of part of a debt. See, e.g., Alexanderson v. Wessman,
    
    158 Neb. 614
    , 
    64 N.W.2d 306
    (1954). The statute is limited,
    however, to causes “founded on contract.” The statute thus
    would only provide for tolling in this case if Nelssen’s cause
    is “founded on contract.”
    On the surface, it may appear that Nelssen’s cause is founded
    on a contract. As noted above, she obtained the judgment based
    on her allegation that Ritchie failed to make payments he
    promised to pay. It is incorrect, however, to focus on Nelssen’s
    original claim. When a valid and final judgment is entered, the
    original claim “is extinguished and rights upon the judgment
    are substituted for it.” Restatement (Second) of Judgments
    § 18, comment a. (1982). See, also, American Nat. Bank v.
    Medved, 
    281 Neb. 799
    , 
    801 N.W.2d 230
    (2011); Yergensen v.
    Ford, 
    402 P.2d 696
    (Utah 1965).
    Because Nelssen’s rights now arise from a judgment, tolling
    would be available under § 25-216 only if the term “contract”
    encompasses judgments. We find that it does not.
    We are persuaded by the reasoning of many other courts that
    have concluded that a judgment is not a contract for purposes
    of their similar tolling statutes. See, e.g., Quaintance v. Fogg,
    
    392 So. 2d 360
    , 361 (Fla. App. 1981) (concluding that Florida
    statute allowing part payments to toll limitations period in
    actions “‘founded on a written instrument’” did not include
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    judgments); Sharp v. Sharp, 
    154 Kan. 175
    , 181, 
    117 P.2d 561
    ,
    565 (1941) (“it would be anomalous to hold that ‘contract’ in
    the part payment statute was broad enough to embrace judg-
    ments”); Olson v. Dahl, 
    99 Minn. 433
    , 437, 
    109 N.W. 1001
    ,
    1002 (1906) (“the weight of authority, both in England and
    this country, is to the effect that a judgment is not a contract in
    any proper sense of the term”); La Salle Extension University
    v. Barr, 
    19 N.J. Misc. 387
    , 390, 
    20 A.2d 609
    , 611 (1941)
    (concluding that statute tolling limitations period for cases
    founded on simple contract “does not apply to a judgment, for
    a judgment is not included within its terms”). Additionally, our
    law makes a distinction between a contract and a “specialty,”
    see Neb. Rev. Stat. § 25-205 (Reissue 2016), and a domestic
    judgment has long been recognized as a specialty. See, e.g.,
    Farmers & Merchants Bank v. Merryman, 
    126 Neb. 684
    , 
    254 N.W. 428
    (1934).
    [4] Having concluded that the tolling provision of § 25-216
    does not toll the time period to revive a dormant judgment,
    we see no basis to find tolling here. The Legislature has cho-
    sen to provide for tolling when partial payments are made on
    a debt founded on contract, but we are aware of no similar
    statute applying to judgments. The intent of the Legislature is
    expressed by omission as well as by inclusion. Christine W. v.
    Trevor W., 
    303 Neb. 245
    , 
    928 N.W.2d 398
    (2019). And, as at
    least one other state court has noted, there is a policy reason
    why a legislature might choose not to extend contractual toll-
    ing provisions to judgments:
    A contract is ordinarily not a matter of public record
    and the tolling of the statute of limitations . . . would
    have no significant effect except upon the parties to the
    contract. By contrast, a judgment is a public record, and
    this record is relied upon to determine the status of legal
    title to real property. A written acknowledgment or a part
    payment would not ordinarily be reflected upon the offi-
    cial records and, if they could extend the limitation period
    on judgments, it would not be possible to ascertain from
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    the public records a correct assessment of the legal title
    to real property.
    Yergensen v. 
    Ford, 402 P.2d at 698
    .
    The deadline to revive the dormant judgment was not tolled
    by Ritchie’s payments.
    Does Equitable Estoppel or Waiver Apply?
    Nelssen also argues that Ritchie could not claim that the
    motion for revivor was untimely under the doctrines of equi-
    table estoppel and waiver. Nelssen argues that by agreeing to
    make payments to her in exchange for her commitment not
    to execute on the judgment, Ritchie is barred by equitable
    estoppel and waiver from claiming the motion for revivor
    was untimely.
    Ritchie responds that the 10-year time period in § 25-1420
    is never subject to claims of equitable estoppel or waiver.
    Ritchie’s argument has some appeal. Dicta in one of our older
    opinions could be read to suggest that a dormant judgment can-
    not be revived after 10 years regardless of circumstances. See
    Farmers & Merchants Bank v. 
    Merryman, 126 Neb. at 686
    , 254
    N.W. at 429 (stating that if plaintiff failed to revive judgment
    within 10 years after it became dormant, “its right to have the
    judgment revived was forever barred” by earlier codification of
    § 25-1420). That is certainly a possible reading of § 25-1420,
    which says that “no judgment shall be revived unless action
    to revive the same be commenced within ten years after such
    judgment became dormant” and mentions no exceptions. In
    addition, as discussed above, if the time period to revive a
    dormant judgment could be extended by interactions between
    only the judgment debtor and judgment creditor, third parties
    interested in the status of a judgment would be left to wonder
    if a judgment was subject to revivor or if the time to do so
    had expired.
    Although we harbor serious doubts about whether a party
    could ever be precluded from claiming a motion for revivor
    was untimely under § 25-1420 under the doctrines of equitable
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    estoppel or waiver, we need not decide that question today.
    Even assuming that is a possibility, Nelssen has not shown that
    either of those doctrines would apply here.
    [5,6] The doctrine of equitable estoppel applies where, as
    a result of conduct of a party upon which another person has
    in good faith relied to his or her detriment, the acting party is
    absolutely precluded, both at law and in equity, from asserting
    rights which might have otherwise existed. Burns v. Nielsen,
    
    273 Neb. 724
    , 
    732 N.W.2d 640
    (2007). The elements of
    equitable estoppel are, as to the party estopped: (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; and (3) knowledge, actual or constructive, of the
    real facts. Omaha Police Union Local 101 v. City of Omaha,
    
    292 Neb. 381
    , 
    872 N.W.2d 765
    (2015). As to the other party,
    the elements are: (1) lack of knowledge and of the means of
    knowledge of the truth as to the facts in question; (2) reliance,
    in good faith, upon the conduct or statements of the party to
    be estopped; and (3) action or inaction based thereon of such
    a character as to change the position or status of the party
    claiming the estoppel, to his or her injury, detriment, or preju-
    dice. 
    Id. Assuming equitable
    estoppel could apply in these
    circumstances, Nelssen would have the burden to establish its
    elements. See Bryan M. v. Anne B., 
    292 Neb. 725
    , 
    874 N.W.2d 824
    (2016).
    Nelssen has not shown the required elements of equitable
    estoppel. As noted above, the record is quite sparse as to the
    interactions between Nelssen and Ritchie that led to Ritchie’s
    making payments toward the judgment over a number of years.
    The only evidence of their interactions comes from Nelssen’s
    affidavit, which simply asserts that Ritchie agreed to make
    payments and that she agreed not to execute on the judgment.
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    Nelssen’s affidavit, however, provides no insight into Ritchie’s
    state of mind. There is not even a suggestion Ritchie knew
    that at some point the judgment would become dormant and
    that the time period to revive it would expire. There is thus
    no evidence that Ritchie engaged in conduct resulting in false
    representations or concealment of material facts all while
    knowing the real facts, essential elements of a claim of equi-
    table estoppel.
    [7,8] For similar reasons, we find no basis to conclude that
    Ritchie could have waived the right to contend that the time
    to revive the judgment had expired. Waiver is a voluntary
    and intentional relinquishment of a known right, privilege, or
    claim. State ex rel. Wagner v. Amwest Surety Ins. Co., 
    280 Neb. 729
    , 
    790 N.W.2d 866
    (2010). Waiver can also be demonstrated
    by, or inferred from, a person’s conduct. See 
    id. To establish
    a
    waiver of a legal right, there must be a clear, unequivocal, and
    decisive act of a party showing such a purpose, or acts amount-
    ing to an estoppel on his or her part. 
    Id. Further, the
    waiving
    party must have full knowledge of all material facts. See 
    id. Again, we
    have no indication in our record as to what Ritchie
    intended to do by agreeing to make payments to Nelssen. We
    have no basis to determine he intended to relinquish a right
    to someday assert that the judgment had become dormant and
    that the time to revive it had expired.
    Because we see no reason to conclude that the deadline to
    revive a dormant judgment was extended, we conclude that it
    expired in 2011. The district court was correct to overrule the
    motion for revivor on the ground that it was untimely.
    CONCLUSION
    We find that the judgment became dormant and that the time
    period to revive it expired. Accordingly, we affirm the district
    court’s order overruling Nelssen’s motion for revivor.
    A ffirmed.