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NELSSEN v. RITCHIE

Cite as 304 Neb. 346

Pamela Nelssen, appellant, 

Hal T. Ritchie, appel

___ N.W.2d ___

Filed October 25, 2019. No. S-18-1020.

1. Statutes: Appeal and Error. Statutory interpretation presents a question 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 disposing 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 omission 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 otherwise existed.

6. ____: ____. 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 

Nebraska Supreme Court Online Library

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

12/13/2019 09:06 AM CST
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NELSSEN v. RITCHIE

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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: Lor

A. Maret, Judge. Affirme

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

Papik, and Freudenberg, J

Papik, J

Over 2 decades ago, Pamela Nelssen obtained a judgment 

against Hal T. Ritchie. Nelssen never executed on the judgment, 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 district 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.
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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 judgment 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 payments 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 payments 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.
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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 judgment. 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 disposing 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 operate as a lien on the estate of the judgment debtor. § 25-1515.
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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 reviving 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 judgment 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 contends 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 deadline 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 argument 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 
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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 payment 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 
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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 judgments”); 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 chosen 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 tolling 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 official records and, if they could extend the limitation period 

on judgments, it would not be possible to ascertain from 
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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 equitable 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 cannot 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 
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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 prejudice. 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. 
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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 equitable 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 amounting 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.

Affirm