Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/21/2017 10:13 AM CST




                                                        - 209 -
                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                           NYAMATORE v. SCHUERMAN
                                             Cite as 25 Neb. App. 209




                    Eunice Nyamatore, appellant, v. Barbara J. Schuerman
                        and Omaha Transit Authority, also known as
                         Transit Authority of Omaha, doing business
                             as M etro A rea Transit, appellees.
                                                    ___ N.W.2d ___

                                        Filed October 31, 2017.   No. A-16-881.

                1.	 Summary Judgment: Appeal and Error. An appellate court will
                    affirm a lower court’s grant of summary judgment if the pleadings
                    and admitted evidence show that there is no genuine issue as to any
                    material facts or as to the ultimate inferences that may be drawn from
                    the facts and that the moving party is entitled to judgment as a matter
                    of law.
                2.	 Estoppel: Equity: Appeal and Error. A claim of equitable estoppel
                    rests in equity, and in an appeal of an equity action, an appellate court
                    tries factual questions de novo on the record and reaches a conclusion
                    independent of the findings of the trial court.
                3.	 Statutes: Immunity: Waiver: Intent. Statutes that purport to waive
                    sovereign immunity must be clear in their intent and are strictly con-
                    strued in favor of the sovereign and against the waiver.
                4.	 Political Subdivisions Tort Claims Act: Jurisdiction. While not a
                    jurisdictional prerequisite, the filing or presentment of a claim to the
                    appropriate political subdivision is a condition precedent to commence-
                    ment of a suit under the Political Subdivisions Tort Claims Act.
                5.	 Estoppel. The doctrine of equitable estoppel will not be invoked
                    against a governmental entity except under compelling circumstances
                    where right and justice so demand; in such cases, the doctrine is to
                    be applied with caution and only for the purpose of preventing mani-
                    fest injustice.
                6.	 Limitations of Actions: Political Subdivisions. There is no duty on
                    the part of a political subdivision, or any other party, to inform an
                    adversary of the existence of a statute of limitations or other nuances of
                    the law.
                             - 210 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                   NYAMATORE v. SCHUERMAN
                     Cite as 25 Neb. App. 209

   Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
  Paul M. Muia, of Law Offices of Paul M. Muia, for
appellant.
  Ryan M. Kunhart and Jeffrey J. Blumel, of Dvorak Law
Group, L.L.C., and Kelsey M. Weiler, of Abrahams, Kaslow &
Cassman, L.L.P., for appellees.
  Moore, Chief Judge, and Bishop and A rterburn, Judges.
  A rterburn, Judge.
                        INTRODUCTION
   Eunice Nyamatore appeals from an order of the district
court which granted summary judgment in favor of Barbara J.
Schuerman and Omaha Transit Authority (collectively OTA).
On appeal, Nyamatore argues the district court erred in grant-
ing summary judgment in favor of OTA. She also asserts
that the district court erred in finding that equitable estoppel
did not apply in this matter. For the reasons set forth below,
we affirm.
                      BACKGROUND
   On June 19, 2015, Nyamatore was a passenger on a bus
owned and operated by OTA. The bus was involved in an
accident, and Nyamatore suffered injuries as a result of the
accident. Nyamatore, through counsel, sent a letter of notice
of claim to Edith A. Simpson, the legal and human resources
director for OTA. The letter was dated July 9, 2015. Simpson
was the only named recipient of the notice of claim.
   As the legal and human resources director for OTA,
Simpson is responsible for providing OTA with legal advice
and coordinating OTA’s outside legal counsel. Additionally,
Simpson is responsible for the administration and coordi-
nation of OTA’s human resources functions. At the time
Nyamatore sent her letter to Simpson, Simpson was not
a clerk, secretary, or other official whose duty it was to
                             - 211 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                   NYAMATORE v. SCHUERMAN
                     Cite as 25 Neb. App. 209

maintain the official records of OTA, nor had she ever held
that position. The executive director of OTA is the only offi-
cial whose duty it is to maintain the official records of OTA.
At the time the notice was received, Curt Simon was the
executive director for OTA.
   Simpson, on behalf of OTA, responded to Nyamatore’s
notice in a letter dated April 15, 2016. In the letter, Simpson
discussed settling Nyamatore’s claim against OTA. Following
Simpson’s response to Nyamatore, Nyamatore filed a com-
plaint in the district court on May 5, approximately 11 months
after the accident.
   A few days after Nyamatore filed her complaint in district
court, Simpson sent her another letter, dated May 13, 2016. In
this letter, Simpson again tried to settle the dispute between
Nyamatore and OTA.
   OTA filed its answer to Nyamatore’s complaint on June 20,
2016. OTA alleged as an affirmative defense that Nyamatore
failed to comply with the Political Subdivisions Tort Claims
Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012),
thereby barring her claim.
   OTA filed a motion for summary judgment on July 1, 2016.
The district court held a hearing on the motion on August 19.
On September 6, the district court entered an order granting
OTA’s motion for summary judgment. Nyamatore appeals.
                 ASSIGNMENTS OF ERROR
   Nyamatore argues, restated and consolidated, that the dis-
trict court erred in (1) granting OTA’s motion for summary
judgment and (2) finding equitable estoppel did not apply
under the facts of this case.
                  STANDARD OF REVIEW
   [1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
                              - 212 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                    NYAMATORE v. SCHUERMAN
                      Cite as 25 Neb. App. 209

of law. deNourie & Yost Homes v. Frost, 289 Neb. 136, 854
N.W.2d 298 (2014). An appellate court must view the evidence
in the light most favorable to the party against whom the judg-
ment was granted, and give that party the benefit of all reason-
able inferences deducible from the evidence. Id.
   In actions brought pursuant to the PSTCA, the factual find-
ings of the trial court will not be disturbed on appeal unless
clearly wrong. Funk v. Lincoln-Lancaster Cty. Crime Stoppers,
294 Neb. 715, 885 N.W.2d 1 (2016).
   [2] A claim of equitable estoppel rests in equity, and in an
appeal of an equity action, an appellate court tries factual ques-
tions de novo on the record and reaches a conclusion indepen-
dent of the findings of the trial court. Steckelberg v. Nebraska
State Patrol, 294 Neb. 842, 885 N.W.2d 44 (2016).
                           ANALYSIS
                      Notice R equirements
                          Under PSTCA
   Nyamatore argues the district court erred in granting
OTA’s motion for summary judgment because she substan-
tially complied with the notice requirement under the PSTCA.
We disagree.
   [3] The PSTCA provides limited waivers of sovereign
immunity. Shipley v. Department of Roads, 283 Neb. 832, 813
N.W.2d 455 (2012). Statutes that purport to waive sovereign
immunity must be clear in their intent and are strictly con-
strued in favor of the sovereign and against the waiver. See
King v. State, 260 Neb. 14, 614 N.W.2d 341 (2000). Section
13-919 provides in part: “Every claim against a political sub-
division permitted under the [PSTCA] shall be forever barred
unless within one year after such claim accrued the claim is
made in writing to the governing body.” The same limitation
applies for suits against an employee of a political subdivision.
See § 13-920.
   In this case, Nyamatore sent a letter to OTA’s legal and
human resources director approximately 3 weeks after the
                               - 213 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                    NYAMATORE v. SCHUERMAN
                      Cite as 25 Neb. App. 209

accident. However, OTA argues that Nyamatore’s letter did
not constitute proper notice “in writing to the governing body”
because the letter did not comply with § 13-905, which pro-
vides as follows:
         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 subdivi-
      sion, or the governing body of a political subdivision
      may provide that such claims may be filed with the duly
      constituted 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.
   [4] While not a jurisdictional prerequisite, the filing or pre-
sentment of a claim to the appropriate political subdivision is
a condition precedent to commencement of a suit under the
PSTCA. Estate of McElwee v. Omaha Transit Auth., 266 Neb.
317, 664 N.W.2d 461 (2003). If a political subdivision, by
an appropriately specific allegation in a demurrer or answer,
raises the issue of the plaintiff’s noncompliance with the
notice requirement of § 13-905 of the PSTCA, the plaintiff
has the burden to show compliance with the notice require-
ment. Id.
   The facts of this case are extremely similar to the facts in
Estate of McElwee, supra, including that OTA was the defend­
ant therein. In Estate of McElwee, the Nebraska Supreme
Court found that the plaintiff failed to satisfy the notice require-
ment of the PSTCA because the plaintiff served notice of
claim on the defendant’s director of administration and human
resources rather than the individual responsible for maintain-
ing the defendant’s official records—the defendant’s executive
director of the board of directors—upon whom service was
required by the PSTCA.
                               - 214 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                    NYAMATORE v. SCHUERMAN
                      Cite as 25 Neb. App. 209

   Nyamatore concedes that this matter was brought under
the PSTCA. She also appears to concede that she did not
forward her letter to the correct individual at OTA. However,
Nyamatore argues that she substantially complied with the
PSTCA because OTA was put on notice with the letter she
sent to Simpson. Nyamatore also argues that OTA was put on
notice of the claim since Simpson was authorized by OTA to
offer two different settlement sums. The Nebraska Supreme
Court has applied a substantial compliance analysis when there
is a question about whether the content of the required claim
meets the requirements of the PSTCA; however, the court has
expressly held that if the notice is not filed with the person
designated by statute as the authorized recipient, a substantial
compliance analysis is not applicable. Niemoller v. City of
Papillion, 276 Neb. 40, 752 N.W.2d 132 (2008).
   In Estate of McElwee, 266 Neb. at 325, 664 N.W.2d at 468,
the Nebraska Supreme Court addressed a substantial compli-
ance argument:
      While § 13-905 does facilitate the timely investigation
      of claims . . . it is also obviously intended to ensure that
      notice of pending claims is provided to those who have a
      legal duty to file those claims in the official records of the
      political subdivision, and to notify the governing body of
      the subdivision.
         While a subordinate employee may ultimately be
      directed to oversee the administration of the claim, it
      is still necessary that the claim be filed in the official
      records and made known to the governing body, and
      § 13-905 facilitates this purpose by requiring that claims
      be presented to the officer of the political subdivision with
      the legal responsibility for filing such records. “It would
      defeat the purpose of § 13-905 if mere knowledge of an
      act or omission, by a nondesignated party, was sufficient
      to satisfy the requirements of that section.” . . . In any
      event, we are not at liberty to ignore the plain language
      of the statute. In the absence of ambiguity, courts must
                              - 215 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                    NYAMATORE v. SCHUERMAN
                      Cite as 25 Neb. App. 209

       give effect to statutes as they are written. [The human
       resources director] did not have any of the duties set forth
       by the unambiguous language of § 13-905, so the notice
       of claim directed to [her] was not effective notice under
       the [PSTCA]. The plaintiff’s purported claim did not meet
       the plainly stated requirements of § 13-905.
(Citations omitted.)
    This issue was again addressed in Brothers v. Kimball Cty.
Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015). There, the plain-
tiff filed his claim with the chief executive officer (CEO) of
the hospital. The evidence demonstrated that although the CEO
actually maintained the records of the hospital (a political sub-
division), the secretary of the board of trustees of the hospital
was the person who was given the duty to maintain the records
of the hospital under its bylaws. Therefore, the secretary of the
board of trustees was the person with whom the claim had to
be filed. The evidence demonstrated that the CEO discussed
the claim with the board of trustees, including the secretary.
The court held that filing with an official who does not have
the duty to maintain the official records of the political subdi-
vision does not satisfy the PSTCA. The court noted that there
was no evidence that the CEO was a de facto clerk, secretary,
or official recordkeeper and that no misrepresentation was
made by the CEO or the hospital that the CEO was the person
designated by statute to receive claims.
    The undisputed evidence received at the hearing herein
established that Simon, the executive director of OTA, was the
only official whose duty it was to maintain the official records
of OTA. Simpson was the only named recipient on the letter of
notice of claim sent to OTA. Nyamatore failed to present any
evidence that she complied with the notice requirements of the
PSTCA, nor did she present any evidence that Simpson was a
de facto clerk or official recordkeeper. She also provided no
evidence that Simpson misrepresented herself as the official
recordkeeper of OTA. Therefore, we find that the district court
did not err in granting summary judgment in favor of OTA.
                               - 216 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                    NYAMATORE v. SCHUERMAN
                      Cite as 25 Neb. App. 209

                        Equitable Estoppel
   Nyamatore argues that the district court erred in not finding
that equitable estoppel applied in this matter because Simpson’s
actions led Nyamatore to rely on the premise that OTA received
notice of Nyamatore’s claim against it. We disagree.
   [5,6] The doctrine of equitable estoppel will not be invoked
against a governmental entity except under compelling circum-
stances where right and justice so demand; in such cases, the
doctrine is to be applied with caution and only for the purpose
of preventing manifest injustice. Steckelberg v. Nebraska State
Patrol, 294 Neb. 842, 885 N.W.2d 44 (2016). There is no
duty on the part of a political subdivision, or any other party,
to inform an adversary of the existence of a statute of limita-
tions or other nuances of the law. Estate of McElwee v. Omaha
Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003); Woodard
v. City of Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999). Six
elements must 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.
Capitol City Telephone v. Nebraska Dept. of Rev., 264 Neb.
515, 650 N.W.2d 467 (2002).
   Two cases with somewhat similar facts to the present case
are helpful to our analysis. In Willis v. City of Lincoln, 232 Neb.
533, 441 N.W.2d 846 (1989), counsel for the claimant sent a
letter to a city agency requesting that an insurance representa-
tive for the city contact him regarding injuries the claimant
                             - 217 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                   NYAMATORE v. SCHUERMAN
                     Cite as 25 Neb. App. 209

had received while being transported on a city handibus. An
insurance adjuster thereafter contacted counsel for the claim-
ant. Additional medical records were provided to the adjuster,
and further telephone conversations ensued. No further actions
were taken by the city. Following the filing of suit in the
district court, the city’s motion for summary judgment was
sustained. The Nebraska Supreme Court affirmed. The court
stated that there was no evidence that any city official informed
the claimant or his counsel that proper filing of a claim was
necessary under the PSTCA. The court further found that the
PSTCA contains a clear procedure for filing a claim against a
municipality. Therefore, the city was not estopped from deny-
ing the claimant’s compliance with the notice requirement of
the PSTCA.
   In Lowe v. Lancaster Cty. Sch. Dist. 0001, 17 Neb. App.
419, 766 N.W.2d 408 (2009), we applied the doctrine of equi-
table estoppel to allow an action against the Lincoln Public
Schools (LPS) to proceed. In Lowe, counsel for the claimant
made inquiry to LPS employees as to where specifically he
should provide the claim on two separate occasions. He was
given incorrect information both times. Moreover, he was later
provided a carefully worded letter from the person he was
instructed to provide the claim to that acknowledged receipt
of the claim but did nothing to correct the incorrect informa-
tion previously supplied by the LPS employees. We found
that viewed in the light most favorable to the claimant, the
letter could be seen as calculated to convey the impression to
the claimant’s attorney that the claim was properly filed. As a
result, we reversed the district court’s grant of summary judg-
ment to LPS.
   This case lies between Willis, supra, and Lowe, supra.
However, we find that the offers of settlement sent by OTA
to counsel for Nyamatore do not provide a basis for equitable
estoppel. Nyamatore, through her counsel, did not lack the
knowledge or the means to acquire the knowledge necessary
to properly file the claim. The PSTCA details the procedure
                              - 218 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                    NYAMATORE v. SCHUERMAN
                      Cite as 25 Neb. App. 209

for filing a claim against a political subdivision. There is a sig-
nificant volume of case law on this issue. Estate of McElwee v.
Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003),
involves the same political subdivision and even directs claim-
ants how to properly file the notice of claim to OTA. We fur-
ther note that (unlike Lowe, supra) Nyamatore presented no
evidence demonstrating what, if any, steps were taken by her
counsel to determine the proper official with whom the claim
should be filed. Moreover, there is no evidence that any official
of OTA made any affirmative representation to her counsel that
misinformed him of the proper manner of filing. As we have
stated, there is no duty on the part of a political subdivision,
or any other party, to inform an adversary of the existence of
a statute of limitations or other nuances of the law. Estate of
McElwee, supra; Woodard v. City of Lincoln, 256 Neb. 61, 588
N.W.2d 831 (1999). Upon our de novo review, we find that the
district court did not err in finding that equitable estoppel did
not apply in this matter.
   As was stated by our Supreme Court in Brothers v. Kimball
Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015), we rec-
ognize that the procedural requirements of the PSTCA can
lead to harsh results, particularly where, as here, the evidence
demonstrates OTA’s knowledge and consideration of the claim.
However, our Supreme Court has consistently demanded strict
compliance with statutory requirements in cases involving a
waiver of sovereign immunity. See Jill B. & Travis B. v. State,
297 Neb. 57, 899 N.W.2d 241 (2017). It is the province of the
Legislature to amend the statute if something less than strict
compliance with procedural requirements is to be demanded.
The courts do not possess that power. See Brothers, supra.
                          CONCLUSION
  We find the district court did not err in granting OTA’s
motion for summary judgment. We also find that the district
court did not err in finding that equitable estoppel did not apply
under the facts of this case.
                                                       A ffirmed.
