Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/08/2019 08:06 AM CST




                                                        - 346 -
                                  Nebraska Supreme Court A dvance Sheets
                                          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
                                    - 347 -
             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                            NELSSEN v. RITCHIE
                             Cite as 304 Neb. 346

    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.
                              - 348 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

   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.
                              - 349 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

   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.
                              - 350 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

   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
                              - 351 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

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
                               - 352 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                        NELSSEN v. RITCHIE
                         Cite as 304 Neb. 346

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
                              - 353 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

     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
                              - 354 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

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.
                              - 355 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       NELSSEN v. RITCHIE
                        Cite as 304 Neb. 346

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.
