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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

KOMAR v. STATE

Cite as 24 Neb. App. 692

Stacey L. Komar, appellant, 

v. State of Nebraska

et al., appellees.

___ N.W.2d ___

Filed May 9, 2017. No. A-16-127.

1. Statutes: Appeal and Error. Statutory interpretation is a matter of law, 

in connection with which an appellate court has an obligation to reach 

an independent conclusion irrespective of the determination made by the 

court below.

2. Tort Claims Act. Tort claims brought against the State must be brought 

in accordance with the provisions of the State Tort Claims Act, Neb. 

Rev. Stat. § 81-8,209 et seq. (Reissue 2014).

3. Tort Claims Act: Limitations of Actions. A claimant who could have 

withdrawn a claim from the State Claims Board prior to the expiration of the 2-year statute of limitations should be given an additional 

6 months from the time the claimant could have withdrawn the claim 

from the State Claims Board, rather than an additional 6 months from 

the time the claimant actually withdrew the claim, to file a complaint in 

the district court.

4. Statutes: Judicial Construction: Legislature: Presumptions: Intent.

When judicial interpretation of a statute has not evoked a legislative 

amendment, an appellate court presumes that the Legislature has acquiesced in the court’s interpretation.

5. Estoppel: Fraud: Limitations of Actions. The equitable doctrine of 

estoppel in pais may be applied to prevent a fraudulent or inequitable 

resort to a statute of limitations, and a defendant may, by his or her 

representations, promises, or conduct, be so estopped where the other 

elements of estoppel are present.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/09/2017 09:14 AM CDT
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

KOMAR v. STATE

Cite as 24 Neb. App. 692

Denise E. Frost, of Johnson & Mock, P.C., L.L.O., for 

appellant.

Brien M. Welch and John A. McWilliams, of Cassem, 

Tierney, Adams, Gotch & Douglas, for appellees.

Pirtle, Bishop, and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Stacey L. Komar filed a complaint in the district court pursuant to the provisions of the State Tort Claims Act, Neb. Rev. 

Stat. § 81-8,209 et seq. (Reissue 2014), against the State of 

Nebraska, the Board of Regents of the University of Nebraska, 

and Nebraska Medicine (collectively the State). The district 

court dismissed Komar’s complaint, finding that the allegations contained in the complaint were time barred. Komar 

appeals from the district court’s dismissal of her complaint. 

Upon our review, we affirm the district court’s decision to dismiss Komar’s complaint because it was filed after the statute 

of limitations had expired.

BACKGROUND

On July 15, 2015, Komar filed a complaint against the State. 

In the complaint, she alleged that various employees of the 

State had accessed her medical records without her permission and without a proper purpose, in violation of both federal 

and state laws. Specifically, Komar alleged that a pediatrician employed by the State had improperly viewed Komar’s 

medical records on July 3, 2012. Komar alleged that she did 

not learn of this incident until January 15, 2013. Komar also 

alleged that a second employee of the State had improperly 

viewed Komar’s medical records on multiple dates between 

July 16, 2012, and January 9, 2013. Komar alleged that she did 

not learn of these incidents until January 8, 2014.

In her complaint, Komar indicated that on June 27, 2014, 

she filed an “administrative notice” of the matters discussed 
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KOMAR v. STATE

Cite as 24 Neb. App. 692

in her complaint with the “State of Nebraska Division of 

Risk Management State Claims Board” (the Board). Having 

received no disposition of her claim from the Board or the risk 

manager, Komar indicated that she withdrew her claim from 

the Board on July 14, 2015, just 1 day prior to filing her complaint in the district court.

In response to Komar’s complaint, the State filed a motion 

to dismiss “pursuant to Nebraska Court Rule § 6-1112(b)(6) 

for the reason that [Komar’s] Complaint fails to state a claim 

upon which relief can be granted.”

The district court ultimately sustained the State’s motion 

to dismiss Komar’s complaint. The court found that Komar’s 

action was barred by the relevant statute of limitations. While 

the court’s decision was based on the date that Komar discovered the first improper access of her records, the court 

noted, “The fact [Komar] later discovered that more employees 

improperly accessed her information does not affect the statute of limitations in this action, as it is pled.” We note that, 

in her brief on appeal, Komar does not specifically assign 

error to the district court’s decision concerning the subsequent 

improper accesses of her records. Moreover, during oral argument, Komar’s counsel declined the opportunity to argue that 

the subsequent improper accesses of the records constituted 

claims that could be severed from the claim concerning the 

initial access.

ASSIGNMENTS OF ERROR

On appeal, Komar asserts that the district court erred in (1) 

wrongly computing the last date for filing the action and (2) 

failing to find that even if she filed her complaint too late, the 

State was estopped from asserting the time bar.

STANDARD OF REVIEW

[1] The issues presented by this appeal are controlled by 

statute. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach 
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KOMAR v. STATE

Cite as 24 Neb. App. 692

an independent conclusion irrespective of the determination 

made by the court below. Hullinger v. Board of Regents, 249 

Neb. 868, 546 N.W.2d 779 (1996), overruled on other grounds, 

Collins v. State, 264 Neb. 267, 646 N.W.2d 618 (2002).

ANALYSIS

[2] Tort claims brought against the State must be brought in 

accordance with the provisions of the State Tort Claims Act, 

§ 81-8,209 et seq. See Hullinger v. Board of Regents, supra.

Statute of Limitations Under

State Tort Claims Act

Komar’s first assignment of error, that the district court 

wrongly computed the last date by which her complaint must 

have been filed in the district court, is controlled by §§ 81-8,213 

and 81-8,227(1). Section 81-8,213 provides:

No suit shall be permitted under the State Tort Claims 

Act unless the Risk Manager or State Claims Board has 

made final disposition of the claim, except that if the 

Risk Manager or board does not make final disposition 

of a claim within six months after the claim is made in 

writing and filed with the Risk Manager in the manner 

prescribed by the board, the claimant may, by notice in 

writing, withdraw the claim from consideration of the 

Risk Manager or board and begin suit under such act.

Section 81-8,227(1) provides, in relevant part:

[E]very tort claim permitted under the State Tort Claims 

Act shall be forever barred unless within two years after 

such claim accrued the claim is made in writing to the 

Risk Manager in the manner provided by such act. The 

time to begin suit under such act shall be extended for a 

period of six months from the date of mailing of notice to 

the claimant by the Risk Manager or State Claims Board 

as to the final disposition of the claim or from the date 

of withdrawal of the claim under section 81-8,213 if the 

time to begin suit would otherwise expire before the end 

of such period.
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KOMAR v. STATE

Cite as 24 Neb. App. 692

In her complaint, Komar indicates that she filed her claim 

with the Board, not the risk manager. In Coleman v. Chadron 

State College, 237 Neb. 491, 498, 466 N.W.2d 526, 531 

(1991), overruled on other grounds, Collins v. State, supra, the 

Nebraska Supreme Court held that the 2-year statute of limitations discussed in § 81-8,227(1) applies to both the time for 

filing a claim with the Board and the filing of “lawsuits” in the 

district court.

In this case, the district court found that Komar’s cause of 

action accrued on January 15, 2013, when she discovered that 

a pediatrician employed by the State had improperly accessed 

her medical records. Komar does not assign as error the district 

court’s determination of the date her cause of action accrued. 

Accordingly, in our analysis of the timeliness of Komar’s district court complaint, we will use January 15, 2013, as the date 

her cause of action accrued. Because Komar’s cause of action 

accrued on January 15, 2013, the 2-year statute of limitations 

to file the action expired on January 15, 2015, unless the time 

for filing Komar’s claim was extended in some way.

In her complaint, Komar alleged that she filed her claim 

with the Board on June 27, 2014, a little more than 17 months 

after her claim accrued, but still within the 2-year statute of 

limitations. Pursuant to the language of § 81-8,213, Komar 

could have withdrawn her claim from the Board and filed 

her complaint in the district court as early as December 28, 

2014. On December 28, there remained approximately 19 

days before the expiration of the 2-year statute of limitations 

for Komar’s claim. If Komar had withdrawn her claim during 

these 19 days, she would have had an additional 6 months 

from the date of her withdrawal to file her complaint in the 

district court, pursuant to the language of § 81-8,227(1). 

However, Komar did not withdraw her claim from the Board 

until July 14, 2015, almost 6 months after the 2-year statute 

of limitations had expired.

The district court, relying on the Supreme Court’s holding in Hullinger v. Board of Regents, 249 Neb. 868, 546 
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KOMAR v. STATE

Cite as 24 Neb. App. 692

N.W.2d 779 (1996), overruled on other grounds, Collins v. 

State, 264 Neb. 267, 646 N.W.2d 618 (2002), found that the 

2-year statute of limitations for filing Komar’s complaint was 

extended by 6 months from the date she could have withdrawn 

her claim from the Board. In Hullinger v. Board of Regents, 

the Nebraska Supreme Court analyzed the interplay between 

§§ 81-8,213 and 81-8,227(1), and interpreted them together 

to provide:

“[A] claimant who files a tort claim with the Risk Manager 

of the State Claims Board 18 months or more after his or 

her claim has accrued, but within the 2-year statute of 

limitations, has 6 months from the first day on which the 

claim may be withdrawn from the claims board in which 

to begin suit.”

249 Neb. at 871-72, 546 N.W.2d at 783. Based on the decision in Hullinger v. Board of Regents, supra, the district court 

found that Komar had until 6 months from the first day on 

which her claim could have been withdrawn from the Board, 

or until June 28, 2015, to file her complaint with the district 

court. Komar did not file her complaint until July 15, 2015. 

The district court concluded that Komar’s complaint was 

time barred.

We note that the Supreme Court has modified its decision 

in Hullinger v. Board of Regents, supra, to some extent. In 

Collins v. State, supra, disapproved on other grounds, Geddes 

v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007), the 

Supreme Court found that when a claimant allows the Board 

to actually reach a decision on a claim, the claimant has 6 

months to file suit after notice of the denial of the claim is 

mailed by the Board. The Collins court specifically held, “The 

reasoning of Coleman and Hullinger does not apply to claims 

that are decided by the claims board.” 264 Neb. at 272, 646 

N.W.2d at 621. This limited modification to the court’s decision in Hullinger v. Board of Regents, supra, does not apply in 

this case because Komar chose to withdraw her claim from the 

Board prior to the Board’s actually deciding her claim.
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KOMAR v. STATE

Cite as 24 Neb. App. 692

Accordingly, we conclude that the Supreme Court’s reasoning in Hullinger v. Board of Regents, supra, governs the 

decision in this case. However, we note that this case presents a slightly different factual scenario than that presented 

by Hullinger v. Board of Regents, supra. In that case, the 

Supreme Court was presented with a claimant who had filed a 

claim with the Board more than 18 months after his claim had 

accrued, but within the 2-year statute of limitations. Because 

the claim had been filed more than 18 months after the claim 

had accrued, the claim could not have been withdrawn from 

the Board before the 2-year statute of limitations had expired. 

In this case, Komar filed her claim with the Board prior to 

18 months after the claim had accrued. As such, she could 

have withdrawn her claim prior to the expiration of the 2-year 

statute of limitations. As we discussed above, Komar had 

approximately 19 days prior to the expiration of the statute of 

limitations to withdraw her claim, and if she had done so, she 

would have had an additional 6 months from the date of that 

withdrawal to file a complaint in the district court. However, 

Komar did not withdraw her complaint prior to the expiration 

of the statute of limitations. As such, we are presented with 

the question of when Komar had to file her complaint in the 

district court, given that she could have withdrawn her claim 

from the Board prior to the 2-year statute of limitations, but 

chose not to.

We conclude that, despite the minor difference in the factual 

circumstances of our case, the rationale of the Supreme Court’s 

decision in Hullinger v. Board of Regents, 249 Neb. 868, 546 

N.W.2d 779 (1996), overruled on other grounds, Collins v. 

State, 264 Neb. 267, 646 N.W.2d 618 (2002), still applies. 

Accordingly, the time for Komar to file her complaint with 

the district court was extended by 6 months from the time she 

could have withdrawn her claim from the Board.

In Hullinger v. Board of Regents, the Supreme Court reasoned that in order to interpret §§ 81-8,213 and 81-8,227(1) “‘in 

a consistent and commonsense fashion,’” a “‘fourth-quarter 
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Cite as 24 Neb. App. 692

claimant[]’” must be provided with an additional 6 months 

from the date he or she could have withdrawn a claim from 

the Board to file a complaint in the district court. 249 Neb. at 

872, 546 N.W.2d at 783, quoting Coleman v. Chadron State 

College, 237 Neb. 491, 466 N.W.2d 526 (1991), overruled on 

other grounds, Collins v. State, supra. The court noted that the 

6-month extension should begin accruing from the first day on 

which the claim may be withdrawn, rather than from the day 

it was actually withdrawn, because a claimant should not be 

permitted to

file a claim with the claims board just before 2 years 

after the accrual of the cause of action, wait however 

long until just before final disposition of the claim by 

the claims board to withdraw the claim, and then receive 

an additional 6 months in which to file suit in the district court.

Hullinger v. Board of Regents, 249 Neb. at 873, 546 N.W.2d 

at 783.

We read the Supreme Court’s rationale in Hullinger v. Board 

of Regents, supra, to suggest that a claimant should not be permitted to delay the action indefinitely by his or her own actions 

or inactions. In fact, in Collins v. State, 264 Neb. at 272, 646 

N.W.2d at 621, the Supreme Court specifically indicated that a 

claimant should not be permitted to “allow a claim to remain 

undecided by the board for as long as possible as a way for 

the claimant to delay the filing of an action in district court.” 

However, the court also indicated that “[w]hen a claimant 

allows the claims board to reach a decision, any delay in the 

process is beyond the control of the claimant.” Id.

[3] Given the Supreme Court’s decision in Hullinger v. 

Board of Regents, supra, we conclude that a claimant, who 

could have withdrawn a claim from the Board prior to the 

expiration of the 2-year statute of limitations, should be given 

an additional 6 months from the time the claimant could have 

withdrawn the claim from the Board, rather than an additional 

6 months from the time the claimant actually withdrew the 
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KOMAR v. STATE

Cite as 24 Neb. App. 692

claim, to file a complaint in the district court. However, also 

given the rationale of Hullinger v. Board of Regents, supra, and 

Collins v. State, supra, Komar could not delay the expiration of 

the statute of limitations by choosing to delay the withdrawal 

of her claim from the Board. The delay in this case is attributable to Komar’s decision to delay the withdrawal of her claim. 

Therefore, the rationale of Hullinger v. Board of Regents, 

supra, is applicable.

Komar had until June 28, 2015, to file her complaint with 

the district court. She did not file her complaint until July 

15. Accordingly, Komar’s complaint was time barred and 

we affirm the decision of the district court dismissing her 

complaint.

[4] We acknowledge the apparent harshness of this result. 

However, as the Supreme Court explained in Geddes v. York 

County, 273 Neb. 271, 729 N.W.2d 661 (2007), it is our duty 

to strictly construe the provisions of the State Tort Claims 

Act in favor of the State and against the waiver of sovereign 

immunity. In addition, we note that since the Supreme Court’s 

decision in Hullinger v. Board of Regents, 249 Neb. 868, 546 

N.W.2d 779 (1996), overruled on other grounds, Collins v. 

State, 264 Neb. 267, 646 N.W.2d 618 (2002), the Legislature 

has amended the State Tort Claims Act, but has not seen fit 

to make any modifications which would address the decision 

in that case. When judicial interpretation of a statute has not 

evoked a legislative amendment, an appellate court presumes 

that the Legislature has acquiesced in the court’s interpretation. 

See Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740, 861 

N.W.2d 742 (2015).

Estoppel

Komar’s second assignment of error is that the district court 

erred in failing to find that even if her complaint was filed 

after the statute of limitations had expired, the State is estopped 

from asserting the time bar as a defense. Upon our review, we 

conclude that Komar’s assertion lacks merit.
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[5] The equitable doctrine of estoppel in pais may be 

applied to prevent a fraudulent or inequitable resort to a statute 

of limitations, and a defendant may, by his or her representations, promises, or conduct, be so estopped where the other 

elements of estoppel are present. See Hullinger v. Board of 

Regents, supra.

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. 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 

injury, detriment, or prejudice. Id.

Komar argues in her brief on appeal that the State should 

be estopped from asserting the statute of limitations as a 

defense because of the Board’s delay in hearing her case. 

Although she filed her claim with the Board in June 2014, by 

June 2015, the Board still had not set a hearing for her claim. 

As such, Komar indicates that she withdrew her claim from 

the Board in order that her complaint could be filed in the 

district court.

We first note that it is not clear from our record whether 

Komar argued before the district court that the State should 

be estopped from asserting the statute of limitations defense. 

It is clear that the district court, in its February 2016 order, 

does not discuss or rule on the issue of estoppel. Generally, an 

appellate court will not consider for the first time on appeal 

issues not properly raised in the pleadings nor litigated at trial. 
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Leseberg v. Meints, 224 Neb. 533, 399 N.W.2d 784 (1987). 

However, we conclude that in this case, even if we were to 

rule on the merits of Komar’s estoppel argument, her argument 

would fail. Komar chose to withdraw her claim from the Board 

on July 14, 2015. There is nothing to suggest that the Board 

took any action to influence Komar’s decision to withdraw the 

claim or to make her believe that it would not raise the statute 

of limitations as a defense. Komar could have chosen to wait 

for the Board to rule on her claim. Had she chosen to do so, 

then she would have had an additional 6 months from the date 

of that ruling to file her complaint in the district court. In that 

instance, any delay in the proceedings would have been attributed to the Board, rather than to Komar. See Collins v. State, 

264 Neb. 267, 646 N.W.2d 618 (2002).

CONCLUSION

We affirm the decision of the district court. Komar’s complaint was not timely filed in the district court, and as a result, 

her cause of action is time barred.

Affirmed.