Lowe v. Lancaster Cty. Sch. Dist. 0001

John R. L owe , appeLLant and cRoss -appeLLee , v.
L ancasteR county schooL distRict 0001, aLso known as
L incoLn pubLic schooLs , and M ichaeL kaczMaRczyk ,
appeLLees and cRoss -appeLLants.
766 N.W.2d 408
Filed March 10, 2009. 	No. A-08-363.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appel-
late court resolves the questions of law independently of the trial court’s
conclusions.
4. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort Claims
Act is the exclusive means by which a tort claim may be maintained against a
political subdivision or its employees.
5. Political Subdivisions Tort Claims Act: Notice. The filing requirement of Neb.
Rev. Stat. § 13-905 (Reissue 2007) constitutes a “procedural precedent” to the
commencement of a judicial action.
6. ____: ____. An appellate court applies a substantial compliance analysis when
there is a question about whether the content of the required claim filed under the
Political Subdivisions Tort Claims Act meets the requirements of Neb. Rev. Stat.
§ 13-905 (Reissue 2007); however, if the notice is not filed with the person desig-
nated by statute as the authorized recipient, a substantial compliance analysis is
not applicable.
7. Equity: Estoppel. Six elements must be satisfied for the doctrine of equitable
estoppel to apply: (1) conduct which amounts to a false representation or conceal-
ment 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.
8. ____: ____. The doctrine of equitable estoppel will not be invoked against a gov-
ernmental 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 manifest injustice.
loWe v. lANCASTeR CTy. SCh. dIST. 0001 	419
Cite as 17 Neb. App. 419
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

9. Political Subdivisions Tort Claims Act: Notice. A claimant is entitled to rely on
the representations and procedures of a political subdivision to identify the party
to whom a claim should be addressed for filing—provided that the plaintiff is
diligent in inquiring.
10. Limitations of Actions: Political Subdivisions. There is no legal 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 nuance of the law.
11. Rules of Evidence. In proceedings where the Nebraska evidence Rules apply,
the admissibility of evidence is controlled by such rules; judicial discretion
is involved only when the rules make such discretion a factor in determin-
ing admissibility.
Appeal from the district Court for lancaster County: kaRen
b. FLoweRs, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Vincent M. Powers, of Vincent M. Powers & Associates, for
appellant.
John M. Guthery and derek A. Aldridge, of Perry, Guthery,
haase & Gessford, P.C., l.l.o., for appellees.
inbody, Chief Judge, and sieveRs and MooRe, Judges.
inbody, Chief Judge.
INTRodUCTIoN
John R. lowe appeals the dismissal of his tort action
against lancaster County School district 0001, also known
as lincoln Public Schools (lPS), and lPS employee Michael
Kaczmarczyk, based on the district court’s finding that lowe
failed to comply with the filing requirements of the Political
Subdivisions Tort Claims Act (Tort Claims Act) and the court’s
determination that the doctrine of equitable estoppel was
not applicable in this case. For the reasons set forth herein,
we affirm in part, and in part reverse and remand for fur-
ther proceedings.
STATeMeNT oF FACTS
lowe filed a negligence action against lPS and Kaczmarczyk,
alleging that lowe was injured on or about March 10, 2005,
when the motor vehicle that lowe was driving was rear-
ended by a vehicle owned by lPS and negligently driven by
Kaczmarczyk. lPS and Kaczmarczyk filed answers denying
420 	17 NebRASKA APPellATe RePoRTS

any act of negligence and further asserting, inter alia, the
affirmative defenses that lowe failed to comply with the notice
requirement of Neb. Rev. Stat. § 13-905 (Reissue 2007) of the
Tort Claims Act and that lowe’s claims were barred by the
applicable statute of limitations.
lPS and Kaczmarczyk moved for summary judgment, and
a hearing thereon was held. The facts adduced, when viewed
in the light most favorable to lowe, established the following:
After the accident, lowe hired an attorney to represent him
in the personal injury action against lPS and Kaczmarczyk.
According to the attorney’s deposition testimony contained
in exhibit 14, the attorney telephoned the lPS district office,
identified himself as an attorney, and asked the person who
answered the telephone where to file a political subdivisions
tort claim. The person who answered lPS’ telephone told the
attorney to file the claim with the human resources department
and gave him a specific post office box address for that depart-
ment. during the attorney’s deposition, he testified that he
made notes contemporaneously with that telephone call, which
notes were marked as deposition exhibit 7. The notes stated
“Nancy” and “hR lincoln Public Schools Po box 82889
lincoln 68501.” Although the attorney could not recall whether
“Nancy” was the person whom he talked to or a person who
worked for human resources whom he was directed to contact,
the attorney testified that he was directed to file his claim with
the human resources department at the address which he had
been provided and which he wrote down contemporaneously
with the telephone call. each of the women named “Nancy”
who worked in the human resources department during the
time period in question was deposed and denied speaking with
the attorney.
In the attorney’s deposition, when asked if the person who
answered the telephone was a man or a woman, the attorney
responded, “To the best of my recollection, I believe it was a
woman. . . . but I — like I said, I can’t recall.” The attorney did
not believe that he asked who the secretary of the governing
body was or whose duty it was to maintain the official records
of the political subdivision or the governing body. he further
testified that he was not claiming this person intentionally
loWe v. lANCASTeR CTy. SCh. dIST. 0001 	421
Cite as 17 Neb. App. 419

gave him the wrong information and that “they seemed to be
acting in good faith . . . when they relayed the information to
me, and so I assumed that they were.” on September 13, 2005,
the attorney mailed a claim to lPS’ human resources depart-
ment at the post office box address which had been provided
to him.
When the attorney did not receive an acknowledgment of
lPS’ receipt of the claim, as requested in the claim letter, the
attorney telephoned lPS’ district office, identified himself as
an attorney who had been told to file a tort claim with the
human resources department, and said that he had not received
a response on the previously filed claim. The attorney was
told that he should speak with “Sue Wright.” however, in his
deposition testimony, the attorney was not entirely certain
whether the second telephone call occurred prior to, or after,
his hand delivery of the amended claim. The attorney did not
remember whom he talked to during that second call, and he
stated, “[C]ould I swear on a stack of bibles? No. but to the
best of my recollection that’s how — that’s how it would have
happened.” The attorney stated that the telephone call was his
primary reliance.
The attorney subsequently decided to amend the claim
and drafted an amended claim dated october 26, 2005. The
amended claim was not addressed to Wright personally; it
was addressed “dear Sir or Madam.” Since there had been
no acknowledgment of the initial claim, the attorney hand-
delivered the amended claim to the district office on october
31. he then went to the front desk, indicated that he was
an attorney who had previously filed a political tort claim
with the human resources/risk management department, and
asked with whom he should follow up. (Risk management is
a department within the human resources division of lPS.)
The receptionist identified the appropriate individual as Sue
Wright. The attorney proceeded to Wright’s office, but was
informed that Wright was not in; however, he was able to
speak to claims handler Kim Miller, who told him that Wright
was “the one that handles” the tort claims. Miller was asked
to date stamp a copy of the amended claim for the attorney,
422 	17 NebRASKA APPellATe RePoRTS

which she did. The attorney testified that after speaking with
Miller, he left feeling reassured that his claim had been filed
with the right person. Wright, the risk manager for lPS in
2005 and 2006, responded to the attorney by letter dated
November 1, 2005, wherein she “acknowledges receipt by
the human Resources department of your September 13,
2005 and october 26, 2005 letters on the above referenced
claim.” At her deposition, Wright acknowledged that, at the
time she mailed the aforementioned letter, she knew that the
superintendent, not the human resources department, was
designated to accept tort claims on behalf of lPS. Wright
further knew that lowe’s claim had not been delivered to
the superintendent, because she had made an inquiry with
the superintendent’s assistant. Further, when asked in her
deposition whether Wright had received input from, or had a
conversation with, an lPS attorney prior to drafting the letter,
Wright stated, “Possibly,” and “I could have been advised. I
do not remember.”
In Wright’s deposition, she testified that when a tort claim
is delivered to the superintendent, the claim is forwarded to
her. Wright then sends a copy of the claim to legal counsel and
lPS’ insurance company and opens a file under the claimant’s
name. In lowe’s case, Wright followed the same process as
she did with claims forwarded to her by the superintendent.
Wright stated that if, hypothetically, she had known the attor-
ney had been informed by someone from lPS that the human
resources department, or Wright herself, was the appropriate
place to file a tort claim, Wright would have advised the attor-
ney that neither was the proper place.
lPS is a Class IV public school district as classified under
the statutes of the State of Nebraska and is a political subdivi-
sion for the purposes of the Tort Claims Act. lPS regulation
No. 3500.5 of the lPS Policies and Regulations states, in part,
that “[t]ort claims will be received and placed on file with the
secretary of the board . . . .” lPS policy No. 2110 states, in
part, that “the superintendent serves as executive secretary of
the board of education.” dr. e. Susan Gourley was the superin-
tendent of lPS in 2005 and 2006 and served as the executive
loWe v. lANCASTeR CTy. SCh. dIST. 0001 	423
Cite as 17 Neb. App. 419

secretary of the lincoln board of education. The terms “sec-
retary of the board” and “executive secretary of the board” are
the same position with lPS.
The district court granted lPS and Kaczmarczyk’s motion
for summary judgment, based upon its determination that there
were no material facts in dispute regarding lowe’s failure
to serve his tort claim upon the appropriate individual under
the Tort Claims Act. Further, the district court found that the
doctrine of equitable estoppel did not excuse lowe’s failure
to comply with the act, because the evidence did not support
a finding of false representation or concealment of material
facts. The district court determined that, because the statute
of limitations had run, lPS and Kaczmarczyk were entitled
to judgment as a matter of law. lowe has timely appealed to
this court.
ASSIGNMeNTS oF eRRoR
lowe contends that the district court erred in finding that
he did not comply with the Tort Claims Act and in failing
to apply the doctrine of equitable estoppel to preclude lPS
and Kaczmarczyk from raising the affirmative defense that
lowe did not comply with the filing requirements of the Tort
Claims Act. lPS and Kaczmarczyk have cross-appealed, claim-
ing that the district court erred in receiving exhibit 14, the
attorney’s deposition, into evidence over hearsay and founda-
tion objections.
STANdARd oF ReVIeW
[1-3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Chebatoris v. Moyer, 276 Neb.
733, 757 N.W.2d 212 (2008). In reviewing a summary judg-
ment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence. Id. When reviewing questions of
law, an appellate court resolves the questions of law indepen-
dently of the trial court’s conclusions. Id.
424 	17 NebRASKA APPellATe RePoRTS

ANAlySIS
Compliance With Tort Claims Act.
[4] lowe contends that the district court erred in finding that
he failed to comply with the filing requirements of § 13-905
of the Tort Claims Act. The Tort Claims Act is the exclusive
means by which a tort claim may be maintained against a
political subdivision or its employees. Jessen v. Malhotra, 266
Neb. 393, 665 N.W.2d 586 (2003); Keller v. Tavarone, 265
Neb. 236, 655 N.W.2d 899 (2003); Villanueva v. City of South
Sioux City, 16 Neb. App. 288, 743 N.W.2d 771 (2008). See,
Neb. Rev. Stat. § 13-919 (Reissue 2007) (claims against politi-
cal subdivision; limitation of action); Neb. Rev. Stat. § 13-920
(Reissue 2007) (suit against employee of political subdivision
for act occurring after May 13, 1987; limitation of action). It is
undisputed that lPS is a political subdivision for the purposes
of the Tort Claims Act.
[5,6] All tort claims under the Tort Claims Act “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 constituted law
department of such subdivision.” § 13-905. The filing require-
ment of § 13-905 constitutes a “procedural precedent” to the
commencement of a judicial action. See, id.; Niemoller v. City
of Papillion, 276 Neb. 40, 752 N.W.2d 132 (2008); Crown
Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294
(1997). 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 statute; 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, supra.
In the instant case, the evidence is undisputed that lowe did
not file his claim with Gourley, who was the superintendent of
lPS and secretary of the board of education and, as such, was
the person designated by lPS as the authorized recipient to
receive tort claims under the Tort Claims Act. The aforemen-
tioned case law is clear that a substantial compliance analysis
loWe v. lANCASTeR CTy. SCh. dIST. 0001 	425
Cite as 17 Neb. App. 419

is inapplicable to situations in which the political subdivision
contends that the claim was not filed with the recipient desig-
nated by § 13-905. because lowe did not file his claim with
the person designated by lPS to receive tort claims, he did not
comply with the filing requirements of § 13-905.
Equitable Estoppel.
Next, lowe contends that the district court erred in failing
to apply the doctrine of equitable estoppel to preclude lPS
and Kaczmarczyk from raising the affirmative defense that
lowe did not comply with the filing requirements of the Tort
Claims Act.
[7] Six elements must be satisfied for the doctrine of equi-
table 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 influ-
ence, 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 ques-
tion; (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. Becton, Dickinson & Co. v.
Nebraska Dept. of Rev., 276 Neb. 640, 756 N.W.2d 280 (2008);
Capitol City Telephone v. Nebraska Dept. of Rev., 264 Neb.
515, 650 N.W.2d 467 (2002).
[8] The doctrine of equitable estoppel will not be invoked
against a governmental entity except under compelling circum-
stances where right and justice so demand. Estate of McElwee
v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003).
In such cases, the doctrine is to be applied with caution and
only for the purpose of preventing manifest injustice. Id.
[9,10] Viewing lowe’s evidence in the light most beneficial
to lowe and giving him the benefit of all reasonable infer-
ences deducible from the evidence, as we are required to do,
we note the evidence establishes lowe’s attorney contacted
426 	17 NebRASKA APPellATe RePoRTS

lPS on two separate occasions, once by telephone and once in
person, and was told that the human resources department was
the place to file his tort claim and that Wright was the person
who “handles” the tort claims. “A claimant is entitled to rely
on the representations and procedures of a political subdivi-
sion to identify the party to whom a claim should be addressed
for filing—provided that the plaintiff is diligent in inquiring.”
Estate of McElwee v. Omaha Transit Auth., 266 Neb. at 328,
664 N.W.2d at 470 (Gerrard, J., concurring; McCormack and
Miller-lerman, JJ., join) (joining majority opinion finding that
plaintiff did not meet filing requirements of Tort Claims Act;
however, concurrence noted that plaintiff made no inquiries of
political subdivision and that therefore there were no repre-
sentations by political subdivision upon which plaintiff could
show reliance). however, we note that there is no legal 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 nuance of the law. Estate of McElwee v. Omaha Transit
Auth., supra.
other evidence, when also viewed in the light most favor-
able to lowe, supports lowe’s claim of equitable estoppel.
Wright’s letter dated November 1, 2005, wherein she “acknowl-
edges receipt by the human Resources department of your
September 13, 2005 and october 26, 2005 letters on the above
referenced claim,” was clearly artfully crafted. Wright’s letter,
when viewed favorably to lowe, can be seen as calculated
to convey the impression that lowe’s attorney had properly
filed the claim, which is inconsistent with the position lPS
and Kaczmarczyk now assert. Moreover, when giving lowe
the benefit of all reasonable inferences deducible from the
evidence, it can be said that this letter was drafted and, impor-
tantly, sent—given that the law requires no acknowledgment
of the filing of a claim—with the expectation that the attorney
would rely upon the letter as evidence that lowe’s tort claim
had been properly filed. Consequently, the letter can be seen
as lulling lowe’s attorney into a false sense of security regard-
ing the purported filing and implies that the lawyer needed to
neither make further inquiry nor take additional action with
respect to the perfection of lowe’s claim.
loWe v. lANCASTeR CTy. SCh. dIST. 0001 	427
Cite as 17 Neb. App. 419

In contrast to the impression conveyed by the letter, when
viewed as outlined above, Wright had actual knowledge of the
real facts and Wright knew at the time she mailed the afore-
mentioned letter that the superintendent, rather than herself or
Miller or the human resources department, was designated to
accept tort claims on behalf of lPS. For purposes of the sum-
mary judgment motion, the evidence, when viewed favorably
to lowe, reveals that his attorney relied upon Wright’s letter in
his belief that lowe’s claim had been properly filed. Thus, the
lawyer’s failure to discover the proper person with whom to
file the claim pursuant to the Tort Claims Act does not prevent
the application of the doctrine of equitable estoppel.
Further, the fact that lowe’s letter was addressed to “Sir or
Madam” in human resources, not to Wright, does not defeat his
claim, because there is no statutory requirement that a claim
filed pursuant to the Tort Claims Act need be addressed to a
particular individual. Three Nebraska Supreme Court justices
have indicated that addressing a claim in the statutory language
of § 13-905 is sufficient:
If the identity of the appropriate party is unknown, mir-
roring the statutory language and addressing a claim to
the “clerk, secretary, or other official whose duty it is
to maintain the official records” of a political subdivi-
sion would, in my opinion, suffice to meet the statutory
requirement. See § 13-905.
Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317,
328, 664 N.W.2d 461, 470 (2003) (Gerrard, J., concurring;
McCormack 	and 	Miller-lerman, 	JJ., 	join). Therefore, 	by
extension, if the notice is addressed to a person or entity
that the defendants are equitably estopped from asserting
is improper, the addressee used by lowe’s attorney is not
determinative.
We find, after viewing the evidence most favorably to lowe,
that there are genuine issues of material fact as to whether lPS
and Kaczmarczyk are equitably estopped from asserting the
defense that notice was not properly given, which would bar
lowe’s claim. In so holding, we recall the standard for equi-
table estoppel against a governmental entity: There must be
compelling circumstances where right and justice so demand
428 	17 NebRASKA APPellATe RePoRTS

for the purpose of preventing manifest injustice. See Estate of
McElwee v. Omaha Transit Auth., supra. Whether the circum-
stance here rises to that standard is part and parcel of the mate-
rial issues of fact set out in the record made on the motion for
summary judgment.
Therefore, we find that the evidence presented by lowe,
when viewed most favorably to him, raises genuine issues of
material fact as to whether equitable estoppel should be applied
to preclude lPS and Kaczmarczyk from raising the affirmative
defense that lowe did not comply with the filing requirements
of the Tort Claims Act.
Cross-Appeal.
lPS and Kaczmarczyk have cross-appealed, claiming that
the district court erred in receiving portions of exhibit 14, the
attorney’s deposition, into evidence over hearsay and founda-
tion objections. Specifically, lPS and Kaczmarczyk objected
to the oral conversations that lowe’s attorney claimed he had
with alleged employees of lPS, where, in response to the attor-
ney’s question about where to file a tort claim against the dis-
trict, he was told to send it to the human resources department
and was given the post office box address to send the claim to.
Additional testimony objected to on the basis of foundation and
hearsay was lowe’s attorney’s testimony that he was told to
follow up with, and talk to, Wright because she was the person
who handles the tort claims.
[11] In proceedings where the Nebraska evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make such
discretion a factor in determining admissibility. Sturzenegger
v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008); Karel v. Nebraska Health Sys., 274 Neb. 175, 738
N.W.2d 831 (2007).
during the attorney’s deposition, he testified that he made
notes contemporaneously with his first telephone call to lPS
when he requested the place to file a political subdivision tort
claim, which notes were marked as deposition exhibit 7. The
notes stated “Nancy” and “hR lincoln Public Schools Po
box 82889 lincoln 68501.” Although the attorney could not
loWe v. lANCASTeR CTy. SCh. dIST. 0001 	429
Cite as 17 Neb. App. 419

recall whether “Nancy” was the person whom he talked to
or a person who worked for human resources whom he was
directed to contact, the attorney testified that he was directed
to file his claim with the human resources department at the
address which he had been provided and which he wrote down
contemporaneously with the telephone call. Since the district
court’s consideration of deposition exhibit 7 was not raised as
an issue on appeal and the attorney’s testimony was necessary
foundation for the admission of said deposition exhibit, the
testimony was admissible. Further, as to the second telephone
conversation, we find that, because other similar evidence was
admitted during the deposition and was not objected to, the
objected-to evidence was cumulative. Therefore, we find that
the district court did not err in receiving portions of exhibit 14,
the attorney’s deposition testimony, into evidence over lPS and
Kaczmarczyk’s objections.
CoNClUSIoN
In sum, we find that the district court properly determined
that lowe failed to comply with the filing requirements of
§ 13-905 of the Tort Claims Act. however, we find that the
evidence presented by lowe, and the reasonable inferences
deducible therefrom, has raised a genuine issue of material fact
regarding whether the required elements of equitable estop-
pel should be applied to preclude lPS and Kaczmarczyk from
raising the affirmative defense that lowe did not comply with
the filing requirements of the Tort Claims Act. Further, we
reject lPS and Kaczmarczyk’s claim that the district court
erred in receiving portions of exhibit 14 into evidence over
objection and affirm the district court’s consideration of exhibit
14 for the purposes of the summary judgment determination.
Therefore, the decision of the district court granting summary
judgment in favor of lPS and Kaczmarczyk and dismissing
lowe’s petition is affirmed in part, and in part reversed, and
this cause is remanded for further proceedings.
aFFiRMed in paRt, and in paRt ReveRsed and
ReManded FoR FuRtheR pRoceedings.
430 	17 NebRASKA APPellATe RePoRTS