statute of limitations defense in Nebraska

2018If the complaint on its face shows that the cause of action is time barred, the plaintiff must allege facts to avoid the bar of the statute of limitations and, at trial, has the burden to prove those facts.7 In order to successfully assert the doctrine of fraudulent concealment and thus estop the defend­ant from claiming a statute of limitations defense, the plaintiff must show the defendant has, either by deception 5 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428 , 811 N.W.2d 178 (2012). 6 Andres v. McNeil Co., 270 Neb. 733 , 707 N.W.2d 777 (2005).

2018If the complaint on its face shows that the cause of action is time barred, the plaintiff must allege facts to avoid the bar of the statute of limitations and, at trial, has the burden to prove those facts.7 In order to successfully assert the doctrine of fraudulent concealment and thus estop the defend­ant from claiming a statute of limitations defense, the plaintiff must show the defendant has, either by deception 5 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428 , 811 N.W.2d 178 (2012). 6 Andres v. McNeil Co., 270 Neb. 733 , 707 N.W.2d 777 (2005).

2005See, Schendt v. Dewey, 252 Neb. 979 , 568 N.W.2d 210 (1997); Muller v. Thaut, 230 Neb. 244 , 430 N.W.2d 884 (1988).

2005See, Schendt v. Dewey, 252 Neb. 979 , 568 N.W.2d 210 (1997); Muller v. Thaut, 230 Neb. 244 , 430 N.W.2d 884 (1988).

2025Although our independent research has not uncovered any case law wherein a Nebraska appellate court has considered whether a defendant’s motion for postconviction relief is time barred for the first time in its appellate review, there is precedent for a district court to sua sponte consider whether a motion for postconviction relief is time barred. [5] For instance, in State v. Amaya, 298 Neb. 70 , 902 N.W.2d 675 (2017), the Nebraska Supreme Court addressed the issue of the State’s waiver of the statute of limitations defense and the district court’s right to consider the defense sua sponte.

2025Although our independent research has not uncovered any case law wherein a Nebraska appellate court has considered whether a defendant’s motion for postconviction relief is time barred for the first time in its appellate review, there is precedent for a district court to sua sponte consider whether a motion for postconviction relief is time barred. [5] For instance, in State v. Amaya, 298 Neb. 70 , 902 N.W.2d 675 (2017), the Nebraska Supreme Court addressed the issue of the State’s waiver of the statute of limitations defense and the district court’s right to consider the defense sua sponte.

2022Ferer v. Aaron - 789 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports BOLDEN v. BOARD OF REGENTS Ferer & Sons Co., 278 Neb. 282 , 770 N.W.2d 608 (2009).

2022Ferer v. Aaron - 789 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports BOLDEN v. BOARD OF REGENTS Ferer & Sons Co., 278 Neb. 282 , 770 N.W.2d 608 (2009).

2022Co. v. Transit Auth. of Omaha, 308 Neb. 916 , 958 N.W.2d 378 (2021). [15,16] In applying the doctrine of equitable estoppel to a statute of limitations defense, the Nebraska Supreme Court stated: The equitable doctrine of estoppel was discussed at length by this court in State Farm Mut.

2022Co. v. Transit Auth. of Omaha, 308 Neb. 916 , 958 N.W.2d 378 (2021). [15,16] In applying the doctrine of equitable estoppel to a statute of limitations defense, the Nebraska Supreme Court stated: The equitable doctrine of estoppel was discussed at length by this court in State Farm Mut.

2021Co., 225 Neb. 235 , 404 N.W.2d 32 (1987). 23 See, McCaulley v. C L Enters., supra note 22 ; Adams v. Manchester Park, 291 Neb. 978 , 871 N.W.2d 215 (2015).

2021Co., 225 Neb. 235 , 404 N.W.2d 32 (1987). 23 See, McCaulley v. C L Enters., supra note 22 ; Adams v. Manchester Park, 291 Neb. 978 , 871 N.W.2d 215 (2015).

2021The de Vrieses’ action was not brought until February 15, 2017. [22,23] Aside from discovery periods set forth by statute, we have recognized equitable estoppel may be successfully asserted to avoid the statute of limitations defense when one lulls his or her adversary into a false sense of security, thereby causing that person to subject his or her claim to the bar of the statute of limitations, and then pleads the very delay caused by his or her conduct as a defense to the action when it is filed. 24 Used in this way, estoppel does not extend the statute of limitations but prevents a party f

2021The de Vrieses’ action was not brought until February 15, 2017. [22,23] Aside from discovery periods set forth by statute, we have recognized equitable estoppel may be successfully asserted to avoid the statute of limitations defense when one lulls his or her adversary into a false sense of security, thereby causing that person to subject his or her claim to the bar of the statute of limitations, and then pleads the very delay caused by his or her conduct as a defense to the action when it is filed. 24 Used in this way, estoppel does not extend the statute of limitations but prevents a party f

2021Co., 225 Neb. 235 , 404 N.W.2d 32 (1987). 23 See, McCaulley v. C L Enters., supra note 22 ; Adams v. Manchester Park, 291 Neb. 978 , 871 N.W.2d 215 (2015).

2021Co., 225 Neb. 235 , 404 N.W.2d 32 (1987). 23 See, McCaulley v. C L Enters., supra note 22 ; Adams v. Manchester Park, 291 Neb. 978 , 871 N.W.2d 215 (2015).

2021The de Vrieses’ action was not brought until February 15, 2017. [22,23] Aside from discovery periods set forth by statute, we have recognized equitable estoppel may be successfully asserted to avoid the statute of limitations defense when one lulls his or her adversary into a false sense of security, thereby causing that person to subject his or her claim to the bar of the statute of limitations, and then pleads the very delay caused by his or her conduct as a defense to the action when it is filed. 24 Used in this way, estoppel does not extend the statute of limitations but prevents a party f

2021The de Vrieses’ action was not brought until February 15, 2017. [22,23] Aside from discovery periods set forth by statute, we have recognized equitable estoppel may be successfully asserted to avoid the statute of limitations defense when one lulls his or her adversary into a false sense of security, thereby causing that person to subject his or her claim to the bar of the statute of limitations, and then pleads the very delay caused by his or her conduct as a defense to the action when it is filed. 24 Used in this way, estoppel does not extend the statute of limitations but prevents a party f

2020On cross-appeal, Geoffrey assigns, contingent on a finding of plain error in the district court’s conclusion that Tyler’s - 404 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 paternity acknowledgment did not have to be set aside before the district court could determine whether Geoffrey had paternity, that the court erred in failing to set aside Tyler’s paternity acknowledgment.

2018A respected commentator noted that in Jarrett, this court could have held that the order under review was not final but that to do so would have required us “to say that [we had] made a mistake in reviewing the order in five cases.”16 In addition to the two discussed in the preceding paragraph, the commen- tator identified three other cases.17 In one of these decisions, Fanning v. Richards,18 we addressed a ­ reinstatement order 13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803 , 366 N.W.2d 751 (1985). 14 Id. at 806 , 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221 , 263 N.W

2018A respected commentator noted that in Jarrett, this court could have held that the order under review was not final but that to do so would have required us “to say that [we had] made a mistake in reviewing the order in five cases.”16 In addition to the two discussed in the preceding paragraph, the commen- tator identified three other cases.17 In one of these decisions, Fanning v. Richards,18 we addressed a ­ reinstatement order 13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803 , 366 N.W.2d 751 (1985). 14 Id. at 806 , 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221 , 263 N.W

2018A respected commentator noted that in Jarrett, this court could have held that the order under review was not final but that to do so would have required us “to say that [we had] made a mistake in reviewing the order in five cases.”16 In addition to the two discussed in the preceding paragraph, the commen- tator identified three other cases.17 In one of these decisions, Fanning v. Richards,18 we addressed a ­ reinstatement order 13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803 , 366 N.W.2d 751 (1985). 14 Id. at 806 , 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221 , 263 N.W

2018A respected commentator noted that in Jarrett, this court could have held that the order under review was not final but that to do so would have required us “to say that [we had] made a mistake in reviewing the order in five cases.”16 In addition to the two discussed in the preceding paragraph, the commen- tator identified three other cases.17 In one of these decisions, Fanning v. Richards,18 we addressed a ­ reinstatement order 13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803 , 366 N.W.2d 751 (1985). 14 Id. at 806 , 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221 , 263 N.W

2018A respected commentator noted that in Jarrett, this court could have held that the order under review was not final but that to do so would have required us “to say that [we had] made a mistake in reviewing the order in five cases.”16 In addition to the two discussed in the preceding paragraph, the commen- tator identified three other cases.17 In one of these decisions, Fanning v. Richards,18 we addressed a ­ reinstatement order 13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803 , 366 N.W.2d 751 (1985). 14 Id. at 806 , 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221 , 263 N.W

2018A respected commentator noted that in Jarrett, this court could have held that the order under review was not final but that to do so would have required us “to say that [we had] made a mistake in reviewing the order in five cases.”16 In addition to the two discussed in the preceding paragraph, the commen- tator identified three other cases.17 In one of these decisions, Fanning v. Richards,18 we addressed a ­ reinstatement order 13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803 , 366 N.W.2d 751 (1985). 14 Id. at 806 , 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221 , 263 N.W

2017Ed. 2d 288 (1984); U.S. v. Saccoccia, 18 F.3d 795 (9th Cir. 1994). 22 See State v. Williams, supra note 16 . 23 See State v. Loyd, 269 Neb. 762 , 696 N.W.2d 860 (2005). - 453 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports DUGAN v. STATE Cite as 297 Neb. 444 In State v. Loyd,24 we held that the denial of the defendant’s motion to quash based on a statute of limitations defense, which the defendant had styled as a “‘motion to discharge,’” was not a final order.

2017R elevant Statutes Section 48-665(1) provides that “[a]ny person who has received any sum as benefits under the Employment Security Law to which he or she was not entitled shall be liable to repay such sum to the commissioner for the fund.” That sec- tion sets forth four ways in which repayment might be sought: “without interest by civil action,” “by offset against any future - 301 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports McCOY v. ALBIN Cite as 298 Neb. 297 benefits payable to the claimant with respect to the benefit year current at the time of such receipt or any benefit

2017Ed. 2d 288 (1984); U.S. v. Saccoccia, 18 F.3d 795 (9th Cir. 1994). 22 See State v. Williams, supra note 16 . 23 See State v. Loyd, 269 Neb. 762 , 696 N.W.2d 860 (2005). - 453 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports DUGAN v. STATE Cite as 297 Neb. 444 In State v. Loyd,24 we held that the denial of the defendant’s motion to quash based on a statute of limitations defense, which the defendant had styled as a “‘motion to discharge,’” was not a final order.

2017Ed. 2d 288 (1984); U.S. v. Saccoccia, 18 F.3d 795 (9th Cir. 1994). 22 See State v. Williams, supra note 16 . 23 See State v. Loyd, 269 Neb. 762 , 696 N.W.2d 860 (2005). - 453 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports DUGAN v. STATE Cite as 297 Neb. 444 In State v. Loyd,24 we held that the denial of the defendant’s motion to quash based on a statute of limitations defense, which the defendant had styled as a “‘motion to discharge,’” was not a final order.

2017Ed. 2d 288 (1984); U.S. v. Saccoccia, 18 F.3d 795 (9th Cir. 1994). 22 See State v. Williams, supra note 16 . 23 See State v. Loyd, 269 Neb. 762 , 696 N.W.2d 860 (2005). - 453 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports DUGAN v. STATE Cite as 297 Neb. 444 In State v. Loyd,24 we held that the denial of the defendant’s motion to quash based on a statute of limitations defense, which the defendant had styled as a “‘motion to discharge,’” was not a final order.

2016Therefore, Schmidt’s second motion for postconviction relief was ineli- gible for the statute of limitations exception provided under § 29-3001(4)(d). [8] Schmidt also cites to State v. Alfredson, 287 Neb. 477 , 842 N.W.2d 815 (2014), arguing that the Nebraska Supreme Court did not clearly identify the constitutional right at issue - 252 - Nebraska Court of A ppeals A dvance Sheets 24 Nebraska A ppellate R eports STATE v. SCHMIDT Cite as 24 Neb.

2016Therefore, Schmidt’s second motion for postconviction relief was ineli- gible for the statute of limitations exception provided under § 29-3001(4)(d). [8] Schmidt also cites to State v. Alfredson, 287 Neb. 477 , 842 N.W.2d 815 (2014), arguing that the Nebraska Supreme Court did not clearly identify the constitutional right at issue - 252 - Nebraska Court of A ppeals A dvance Sheets 24 Nebraska A ppellate R eports STATE v. SCHMIDT Cite as 24 Neb.

2015Instead, the McDonough Court characterized the 1-year limitation period as a statute of limitations defense and stated that therefore, “courts are under no obligation to raise the time bar sua sponte.” 547 U.S. at 205 .

2014However, in City of Lincoln v. Hershberger, 272 Neb. 839 , 725 N.W.2d 787 (2007), the Nebraska Supreme Court held that although that case involved guarantors asserting a statute of limitations defense, as opposed to the original debtor, the principles relied on in National Bank of Commerce v. Ham, supra, apply equally to the original debtor and the guarantor of the same debt.

2014However, in City of Lincoln v. Hershberger, 272 Neb. 839 , 725 N.W.2d 787 (2007), the Nebraska Supreme Court held that although that case involved guarantors asserting a statute of limitations defense, as opposed to the original debtor, the principles relied on in National Bank of Commerce v. Ham, supra, apply equally to the original debtor and the guarantor of the same debt.

2007Rev.Stat. § 25-201.02 (Cum.Supp.2006), which has been mentioned by the Nebraska Supreme Court in Smeal v. Olson, 263 Neb. 900 , 644 N.W.2d 550 (2002) (Smeal) , to the extent that the court noted that such statute was enacted during the time that the petition for further review of this court's decision in Smeal v. Olson, 10 Neb.

2007Rev.Stat. § 25-201.02 (Cum.Supp.2006), which has been mentioned by the Nebraska Supreme Court in Smeal v. Olson, 263 Neb. 900 , 644 N.W.2d 550 (2002) (Smeal) , to the extent that the court noted that such statute was enacted during the time that the petition for further review of this court's decision in Smeal v. Olson, 10 Neb.

2007Rev.Stat. § 25-201.02 (Cum.Supp.2006), which has been mentioned by the Nebraska Supreme Court in Smeal v. Olson, 263 Neb. 900 , 644 N.W.2d 550 (2002) (Smeal) , to the extent that the court noted that such statute was enacted during the time that the petition for further review of this court's decision in Smeal v. Olson, 10 Neb.

2007See, Delaware State College v. Ricks, 449 U.S. 250 , 101 S.Ct. 498 , 66 L.Ed.2d 431 (1980), abrogated on other grounds, Patterson v. McLean Credit Union, 491 U.S. 164 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989); United Air Lines, Inc. v. Evans, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977).

2007See, Delaware State College v. Ricks, 449 U.S. 250 , 101 S.Ct. 498 , 66 L.Ed.2d 431 (1980), abrogated on other grounds, Patterson v. McLean Credit Union, 491 U.S. 164 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989); United Air Lines, Inc. v. Evans, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977).