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Omaha Police Union Local 101, IUPA, AFL-CIO, 

also known as Omaha Police Officers Association, 

appellee and cross-appellant, v. City of Omaha, 

a municipal corporation, appellant

and cross-appellee.

___ N.W.2d ___

Filed December 31, 2015. No. S-14-1153.

1. Contracts: Appeal and Error. The interpretation of a contract is a 

question of law, in connection with which an appellate court has an 

obligation to reach its conclusions independently of the determinations 

made by the court below.

2. Trial: Witnesses: Judgments: Appeal and Error. A trial court’s factual 

findings in a bench trial of an action at law have the effect of a jury 

verdict and will not be set aside unless clearly erroneous. The trial court 

is the sole judge of the witnesses’ credibility and the weight to be given 

their testimony.

3. Equity: Appeal and Error. In an appeal in equity, the reviewing court 

tries factual questions de novo on the record.

4. ____: ____. On appeal from an equity action, when credible evidence 

is in conflict on material issues of fact, an appellate court considers and 

may give weight to the fact that the trial court observed the witnesses 

and accepted one version of the facts over another.

5. Estoppel: Words and Phrases. Equitable estoppel is a bar which 

precludes a party from denying or asserting anything to the contrary 

of those matters established as the truth by his or her own deeds, acts, 

or representations.

6. 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.
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7. Waiver: Words and Phrases. A waiver is a voluntary and intentional 

relinquishment or abandonment of a known existing legal right or such 

conduct as warrants an inference of the relinquishment of such right.

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.

9. Contracts: Waiver: Proof. A party may prove the waiver of a contract 

by (1) a party’s express declarations manifesting the intent not to claim 

an advantage or (2) a party’s neglecting and failing to act so as to induce 

the belief that it intended to waive.

10. Waiver: Proof. The party asserting a waiver defense bears the burden of 

establishing that a clear and unmistakable waiver has occurred.

11. Judgments: Equity: Proof. To be entitled to equitable relief from a 

judgment, a party must show that the situation is not due to his or her 

fault, neglect, or carelessness.

Appeal from the District Court for Douglas County: Joseph

S. Troia, Judge. Affirmed.

Christopher R. Hedican, of Baird Holm, L.L.P., for appellant.

Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., for 

appellee.

Heavican, C.J., Wright, Connolly, McCormack, Cassel, 

and Stacy, JJ.

Wright, J.

NATURE OF CASE

The appellee and cross-appellant, the Omaha Police Union 

Local 101, IUPA, AFL-CIO, also known as the Omaha Police 

Officers Association (Union), filed a declaratory judgment 

action against the appellant and cross-appellee, City of Omaha 

(City). The Union requested the district court declare that the 

collective bargaining agreement between the Union and the 

City had rolled over to the 2014 calendar year. The Union 

claimed that the City did not timely provide written notice 

of its intent to negotiate or modify the terms of the contract 

for 2014. The City argued that the Union’s action was barred 

by the doctrines of waiver and equitable estoppel. It claimed 
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written notice was waived by the Union or the Union was 

estopped from asserting that the City was required to give 

written notice of its intent to negotiate changes to the contract. 

We affirm the order of the district court granting declaratory 

judgment to the Union and denying its request for attorney fees.

SCOPE OF REVIEW

[1,2] The interpretation of a contract is a question of law, 

in connection with which an appellate court has an obligation 

to reach its conclusions independently of the determinations 

made by the court below. Gaver v. Schneider’s O.K. Tire Co., 

289 Neb. 491, 856 N.W.2d 121 (2014). A trial court’s factual 

findings in a bench trial of an action at law have the effect of 

a jury verdict and will not be set aside unless clearly erroneous. The trial court is the sole judge of the witnesses’ credibility and the weight to be given their testimony. See Stauffer 

v. Benson, 288 Neb. 683, 850 N.W.2d 759 (2014). This case 

hinges on the applicability of the City’s equitable defenses, 

and we consider the facts de novo on the record. See Estate of 

McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 

461 (2003).

FACTS

The parties entered into an agreement which was to remain 

in effect from December 14, 2008, until December 21, 2013 

(Contract). The Contract contained an “evergreen clause” 

(Article 47), which provided for an automatic extension of the 

Contract if neither party notified the other of a desire to modify 

or renegotiate any portion thereof. Article 47 provided:

This Agreement shall be and shall remain in full force 

and effect from and after . . . December 14, 2008, until 

. . . December 21, 2013, and thereafter for successive one 

(1) calendar year periods, unless one of the parties hereto 

on or before April 1st of any such year shall notify the 

other party hereto in writing of its desire to modify the 

same, or any part thereof.
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Neither party disputes that Article 47 required written notice 

of intent to negotiate changes by April 1, 2014, and that notice 

was not provided by either party by that date. Consequently, 

whether the district court erred in granting declaratory relief 

depends upon whether it erred in rejecting the City’s equitable defenses.

The City’s argument concerns a series of exchanges 

between the lead negotiators of the parties which occurred 

before and after April 1, 2014. The first exchange between 

the parties was a meeting on February 27. Attorney Mark 

McQueen, the chief negotiator for the City, contacted Sgt. 

John Wells, the president and lead negotiator of the Union, to 

set up a meeting. The purpose of the meeting was to discuss 

negotiation style and topics for negotiation. During the meeting, McQueen discussed the City’s objectives for negotiating the Contract and identified three specific topics which 

required discussion.

At this meeting, Wells expressed the Union’s desire to 

allow the Contract to roll over in its entirety. The City characterizes this as an “offer” on behalf of the Union to allow the 

Contract to roll over. McQueen said that he would relay the 

“offer” to decisionmakers and get back to Wells. McQueen 

conveyed the Union’s desire to allow the Contract to roll over 

to the City’s mayor and the city council’s law committee at its 

next meeting.

In contrast to McQueen’s explanation of the February 27, 

2014, exchange, Wells described the meeting as an informal 

meeting to develop a working relationship for future negotiations. Neither party mentioned written notice at the meeting.

The next contact was a brief telephone call on March 19, 

2014. McQueen informed Wells that the City wanted to discuss three items: (1) the deferred option retirement plan, which 

the parties refer to as “DROP”; (2) police cruisers’ being 

taken home; and (3) a pension contribution by the Union of 

$400,000. Wells indicated that he would relay the information to the Union’s executive board and get back to McQueen. 

McQueen testified that he understood his statements to Wells 
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during this telephone call to be a counteroffer to an initial offer 

by the Union to allow the Contract to roll over. Wells did not 

mention written notice in this call. There was no further contact between the Union and the City before April 1.

The next exchange was a breakfast meeting on April 11, 

2014, to discuss rules and procedures for future negotiations. 

The three items from the March 19 telephone call were discussed. The City claimed that it understood this discussion to 

pertain to the 2014 calendar year, whereas the Union claimed 

these discussions were to create a workable atmosphere for 

negotiations for the 2015 calendar year. At this meeting, Wells 

requested written notice to open negotiations, but did not specify the year to which those negotiations pertained.

The next contact was a telephone call on April 16, 2014, 

wherein McQueen informed Wells that he had heard from a 

fire union official that Wells had made comments regarding 

the City’s failure to provide written notice. The parties did not 

agree as to what statements were made during this conversation. McQueen testified that Wells reassured him that there 

must have been a misunderstanding and that the Union was not 

going to take the position that a rollover had occurred. Wells 

testified that he never gave McQueen such assurances, but 

also did not expressly state to McQueen that the Union did, 

in fact, intend to invoke Article 47 to impose a rollover of the 

Contract in its entirety for 2014.

On April 17, 2014, the City sent written notice via e-mail to 

open negotiations. Wells informed McQueen that this language 

was acceptable. This communication did not identify 2014 as 

the year for which the Contract was being negotiated. The following day, the parties met to discuss rules for negotiation. No 

mention of negotiations for 2015 was made in the record of 

this meeting. The Union did not express its position that the 

Contract had rolled over.

On May 6, 2014, McQueen attended as an observer of 

a meeting between Wells, certain Union officers, and the 

chief and deputy chief of police. At some point during the 

meeting, the issue of taking police cruisers home arose. 
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McQueen interjected that the City could implement that change 

unilaterally.

Following this meeting, on May 15, 2014, the Union sent 

the City a letter that the Contract had rolled over for the 2014 

calendar year. This was the first time that the Union conveyed 

its position definitively to the City. The Union claimed that 

all negotiations were for 2015 and that any changes to the 

Contract for 2014 would require a memorandum of understanding agreed to by both parties. The City claimed that 

the exchanges beginning on February 27 were negotiations 

for changes to the Contract and that both parties understood 

these negotiations to be in regard to the 2014 calendar year. It 

claimed that in the past, the City had conducted such negotiations without written notice.

The Union filed a complaint against the City pursuant 

to the Uniform Declaratory Judgments Act, Neb. Rev. Stat. 

§ 25-21,149 et seq. (Reissue 2008). It requested that the district court construe Article 47 to extend the Contract through 

the 2014 calendar year and declare the rights and duties of the 

parties. The Union claimed that the language of the Contract 

provided a binding date for exchange of written notice to commence negotiations. The Union also claimed that the City had 

engaged in bad faith and requested attorney fees pursuant to 

Neb. Rev. Stat. § 25-824 (Reissue 2008).

In its answer, the City asserted the defenses of equitable 

estoppel and waiver. It claimed that the Union was estopped to 

assert that the City did not provide written notice because of 

statements made by Wells which led the City to believe such 

written notice was not required. Additionally, the City claimed 

that the Union had waived any such written notice requirements by engaging in negotiations both before and after April 

1, 2014.

The City filed a counterclaim asserting that if the district 

court agreed with the Union’s position, then the Contract had 

also rolled forward to the end of 2015. It claimed that the 

language of Article 47 required written notice by April 1 of 
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the year prior to whichever year was being modified. Thus, it 

claimed that written notice was required by April 1, 2013, to 

negotiate for 2014, and by April 1, 2014, to negotiate for 2015. 

It claimed that if the court found that the Contract rolled over 

for the 2014 calendar year, it must also find that it rolled forward for the 2015 calendar year.

The district court rejected the City’s equitable defenses. It 

also rejected the City’s interpretation regarding Article 47 that 

would require written notice to be provided by April 1 of the 

year prior to the year being negotiated. It found that in order 

to negotiate for the 2014 calendar year, written notice was 

required by April 1, 2014.

In rejecting the City’s estoppel defense, the court reasoned 

that the City could not have detrimentally relied upon the 

Union’s conduct in failing to provide written notice of intent 

to negotiate. In the City’s pleadings and in the testimony of 

McQueen, the mayor, and the City’s labor relations director, 

the City showed its understanding of Article 47 was that written notice was required by April 1, 2013—not April 1, 2014—

to prevent a rollover through 2014. Thus, at all operative times, 

the City believed that the Contract had already rolled over in 

its entirety pursuant to Article 47. Moreover, the court found 

that the Union did not make a clear and unmistakable waiver 

of Article 47.

The district court denied the Union’s request for attorney 

fees. The parties timely appealed.

ASSIGNMENTS OF ERROR

The City assigns, consolidated and restated, that the district 

court erred in granting declaratory relief to the Union and 

in denying the City’s equitable defenses. In its cross-appeal, 

the Union claims that the district court erred in denying its 

request for attorney fees.

ANALYSIS

We consider whether the district court erred in granting 

judgment to the Union and in rejecting the City’s equitable 
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defenses of waiver and estoppel. The parties do not dispute 

that Article 47 required written notice of intent to open negotiations by April 1, 2014, to prevent an automatic rollover and 

that neither party provided such written notice by that date. 

The issue is whether the Union was estopped to assert the provision of Article 47 or whether the Union waived the requirement of Article 47.

[3,4] In an appeal in equity, the reviewing court tries factual questions de novo on the record. See State ex rel. Dept. 

of Health v. Jeffrey, 247 Neb. 100, 525 N.W.2d 193 (1994). 

On appeal from an equity action, when credible evidence is in 

conflict on material issues of fact, an appellate court considers 

and may give weight to the fact that the trial court observed the 

witnesses and accepted one version of the facts over another. 

Twin Towers Condo. Assn. v. Bel Fury Invest. Group, 290 Neb. 

329, 860 N.W.2d 147 (2015).

The City argues that because the district court did not make 

specific findings regarding the credibility of the witnesses, 

there is no factual determination to which this court may give 

weight. This argument mischaracterizes the district court’s ruling. In determining whether the Union’s conduct constituted a 

waiver of Article 47 or whether the doctrine of equitable estoppel applied, the court necessarily relied upon the testimony of 

the witnesses. The exchanges between the parties were either 

face-to-face or via telephone conversations, and the court considered testimony from the witnesses to discern what transpired 

during those conversations. Moreover, the witnesses typically 

gave differing characterizations of the exchanges. Therefore, 

in reaching its conclusions, the court determined the credibility of the witnesses and accepted one version of the facts 

over another.

The City claims that declaratory judgment should have been 

denied, because the Union participated in negotiations both 

before and after April 1, 2014, and was therefore estopped to 

claim the City failed to provide written notice or the Union 

waived the requirements of Article 47.
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Equitable Estoppel

[5,6] Equitable estoppel is a bar which precludes a party 

from denying or asserting anything to the contrary of those 

matters established as the truth by his or her own deeds, acts, 

or representations. Berrington Corp. v. State, 277 Neb. 765, 

765 N.W.2d 448 (2009). The doctrine 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. Farmington Woods Homeowners Assn. 

v. Wolf, 284 Neb. 280, 817 N.W.2d 758 (2012). 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.

The City argues that the Union is estopped from asserting 

the City’s noncompliance with Article 47, because the Union 

engaged in negotiations to modify the Contract for 2014 both 

before and after April 1, 2014, and asked for written notice 

only after the deadline had passed. It claims the Union’s conduct induced the City into believing that the Union would 

engage in negotiations without written notice and that, therefore, the City did not provide written notice as a result.
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The evidence showed that Wells told the City that the Union 

intended to “stand by” the Contract and that it desired the 

Contract to roll over. Moreover, the City understood Article 

47 to require written notice by April 1, 2013, to prevent a rollover for the 2014 calendar year. Therefore, the City could not 

have relied to its detriment on the Union’s actions beginning 

in February 2014, in which it stated that it wanted the Contract 

to extend through 2014.

There was considerable disagreement between the parties 

concerning the exchanges between Wells and McQueen. Both 

parties characterize the conversations differently. However, 

even accepting the City’s characterization of the facts, it has 

not shown that it reasonably relied to its detriment on the 

Union’s conduct in allowing the April 1, 2014, deadline to pass.

The City asserted in its counterclaim that Article 47 required 

that either party must give written notice of intent to modify 

the contract on or before April 1 of the year during which 

the contract expires. According to this interpretation, to open 

negotiations for the 2014 calendar year, a party was obligated to notify the other in writing of the desire to modify 

the Contract prior to April 1, 2013. McQueen, the mayor, and 

the City’s labor relations director all interpreted Article 47 

in this manner. Consequently, the City believed that the time 

to provide written notice to open negotiations for 2014 had 

expired 11 months before the initial exchange at the meeting 

on February 27, 2014, and more than a year before the City 

provided written notice on April 17, 2014.

The district court rejected the City’s interpretation and held 

that the deadline to provide written notice to negotiate for the 

2014 calendar year was April 1, 2014. Because the City, as 

shown by its pleadings and witness testimony, believed that 

written notice for the 2014 calendar year had to be given by 

April 1, 2013, the trial court did not err in concluding that the 

City could not have detrimentally relied on Wells’ statements 

during the meeting on February 27, 2014, or in the March 19 

telephone call.
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The City claims that Wells did not inform McQueen prior 

to April 1, 2014, that the Union desired written notice to prevent the operative effect of Article 47. It suggests that this 

inaction was deceptive in that it led the City to believe such 

requirement had been waived. We reject this argument. Wells 

was not under a duty to disclose the requirements of Article 

47. Declining to expressly request that the City follow the 

terms of Article 47 did not amount to a misrepresentation. At 

the February 27 meeting, the Union informed the City that it 

wanted the Contract to extend for another year. And at that 

time, the City believed the time to provide written notice to 

negotiate for 2014 had expired. We conclude that the City has 

failed to establish the required elements of equitable estoppel.

Waiver of Article 47

We next consider whether the Union waived Article 47. The 

City argues that the Union, through its conduct, waived the 

requirement of written notice to open negotiations. It claims 

that the parties engaged in negotiations before and after April 

1, 2014, and that each party understood the negotiations to be 

in regard to the 2014 calendar year. The Union asserts that it 

did not clearly and unmistakably waive Article 47.

[7-10] A waiver is a voluntary and intentional relinquishment or abandonment of a known existing legal right or such 

conduct as warrants an inference of the relinquishment of 

such right. Davenport Ltd. Partnership v. 75th & Dodge I, 

L.P., 279 Neb. 615, 780 N.W.2d 416 (2010). 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. State ex rel. 

Wagner v. Amwest Surety Ins. Co., 280 Neb. 729, 790 N.W.2d 

866 (2010). A party may prove the waiver of a contract by 

(1) a party’s express declarations manifesting the intent not 

to claim an advantage or (2) a party’s neglecting and failing to act so as to induce the belief that it intended to waive. 

D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 

1 (2010). The party asserting a waiver defense bears the 
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burden of establishing that a clear and unmistakable waiver 

has occurred. See Hogelin v. City of Columbus, 274 Neb. 453, 

741 N.W.2d 617 (2007).

The City argues that the parties were negotiating despite 

neither having provided the other with written notice and that, 

therefore, the Union had waived Article 47. To support this 

position, it cites to various points in the testimony of Wells and 

McQueen to suggest that they both understood the exchanges 

to be negotiations for 2014.

The Union argues that once the deadline passed, Wells and 

its negotiators understood the subsequent exchanges to be on 

a voluntary basis and would require a memorandum of understanding to implement any changes, or pertained to the 2015 

calendar year. It claims that it never led the City to believe 

written notice was not required. The district court found that 

the Union did not wish to renegotiate the Contract for 2014, 

but would agree to a memorandum of understanding with 

respect to the “take home car” issue.

Although the parties focus much on the events after April 

1, 2014, our decision hinges on the two exchanges prior to 

April 1. These exchanges occurred in a face-to-face meeting 

on February 27 and in a brief telephone conversation on March 

19. The City inferred that these exchanges negated the written 

notice requirement of Article 47. We consider the subsequent 

exchanges between the parties only to the extent that they 

demonstrate whether Article 47 was clearly and unmistakably 

waived in either of the meetings prior to April 1.

The parties agree that during the February meeting, Wells 

conveyed to McQueen the Union’s desire to allow the Contract 

to roll over in its entirety by neither party sending notice. The 

City claims that this was an “offer” which commenced negotiations. However, in a meeting between the parties on May 

18, 2014, McQueen refers to this as a “suggestion” to roll the 

Contract over, which surprised McQueen.

Whether the City refers to this communication as an “offer” 

or an expression of the Union’s desire, it did not have the 

effect of clearly and unmistakably waiving the requirements 
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of Article 47. A waiver would be against the interest of the 

Union, which wanted the Contract to extend through 2014. 

Moreover, Wells informed McQueen that he was unable to 

agree to anything without review from his executive board. 

Thus, beyond his communication of the Union’s position that 

it desired the contract to extend through 2014, Wells did not 

suggest at the February meeting that the Union had waived 

Article 47. It would be absurd to hold that the Union’s expression of its desire to allow the Contract to roll over was, in 

fact, a waiver of Article 47’s operative effect. Nor does the 

record support that such “offer” was intended to lull the City 

into inaction.

The only other contact between the parties prior to April 

1, 2014, was on March 19. This was a brief telephone conversation between Wells and McQueen. Wells and McQueen 

testified this conversation was in response to the February 

discussion. The conversation occurred while Wells was at an 

airport and picking up his luggage. Wells stated that McQueen 

informed him that the City would allow a rollover if they could 

discuss the three issues (take-home cars, the interest rate of the 

DROP program, and additional pension contribution).

Although McQueen testified that this was a “counteroffer” 

and that its conditions must be met for the City to otherwise 

allow the remainder of the Contract to roll over, the City did 

not memorialize or confirm this communication in a subsequent writing. For the sake of recordkeeping, this is inexplicable. McQueen testified he understood the exchanges to this 

point to be that the Union offered to allow a rollover and that 

the City counteroffered for the three conditions.

Wells testified he understood McQueen’s statements to mean 

that the City desired some changes to allow a rollover. He 

again stated to McQueen that he could not agree unilaterally 

to anything and that any change would need to be approved 

through the executive board. He did not expressly state that the 

Union had waived or intended to waive Article 47.

Beyond McQueen’s testimony regarding this brief telephone 

conversation, we find no indication in the record that the 
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Union clearly and unmistakably waived Article 47. On the 

contrary, it appears that such unilateral waiver would have 

exceeded Wells’ negotiating authority and been detrimental 

to the Union’s intent to allow the Contract to roll over in 

its entirety. The record including the telephone call does not 

establish that the Union waived the required written notice.

The next meeting between the parties was on April 11, 2014, 

10 days after the deadline to provide written notice had passed. 

The parties discussed the three issues which McQueen brought 

to Wells’ attention in the March 19 telephone conversation. The 

parties also discussed rules and protocol for negotiations. Wells 

provided McQueen a copy of what had been used in prior 

negotiations. Neither party stated to what year these rules and 

protocols would apply.

Later that day, McQueen had a conversation with a fire 

union official who informed him that Wells told the fire union 

official that the City had made a serious mistake by not sending written notice. In an April 16, 2014, conversation between 

Wells and McQueen, Wells did not specifically tell McQueen 

that the Union intended to take the position that the Contract 

had rolled over.

On April 17, 2014, written notice was sent by McQueen and 

accepted by Wells. Inexplicably, neither party specified the 

year to which the notice applied. The parties met the following day. The minutes of that meeting do not state which year 

the parties were discussing, nor do they discuss the Contract 

rollover or Article 47. The minutes indicate that the parties 

discussed only the three issues McQueen raised on March 19. 

Both Wells and McQueen signed off on the minutes. In an 

April 18 e-mail, Wells stated: “We are getting underway on our 

negotiations with the City. . . . We are discussing some unresolved issues before we get started on overall negotiations.” 

Again, there is no reference to a year for which the parties 

were negotiating.

On May 6, 2014, the parties met to discuss the issues, but 

again did not specify the year. The Union did not expressly 
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communicate that the Contract had rolled over, nor did it 

expressly waive Article 47. Nor did the City state its position 

that the Union had waived Article 47 and that the parties were 

negotiating for the 2014 calendar year.

We conclude that the City did not meet its burden to show 

the Union waived Article 47 regarding the 2014 calendar year. 

Undoubtedly, the exchanges between Wells and McQueen led 

to ambiguity and misunderstanding between the parties, but 

ambiguity is not the standard for waiver of a contractual right. 

The purported waiver must be clear and unmistakable. The 

record does not show that the Union’s conduct rose to the level 

of a waiver of Article 47.

Nor did the Union’s conduct in tacitly allowing the City to 

fail to meet the deadline to provide written notice amount to 

a waiver of such written notice. Wells had no duty to inform 

McQueen that the Union required written notice to open negotiations. The plain language of Article 47 served that purpose. 

And we find no indication that the Union’s conduct induced 

the City into believing that the Union had waived the written 

notice requirement.

Further foreclosing on the City’s argument that the Union’s 

conduct waived Article 47 was the City’s belief, nearly a year 

prior to the initial meeting between Wells and McQueen, that 

the Contract was extended through 2014. Based on the City’s 

understanding of Article 47, the City should have believed that 

the Union was negotiating for 2015. If the City interpreted 

Article 47 to require written notice by April 1, 2013, to open 

negotiations for 2014, by the time it issued its “counteroffer” 

to the Union on March 19, 2014, the supposed deadline had 

been expired for nearly a year. It would be unreasonable for the 

City to believe that the Union waived Article 47 nearly a year 

after April 1, 2013, despite the Union’s express statement that 

it wanted the Contract to roll over to 2014.

In support of its waiver defense, the City relied upon Hornig 

v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000). 

In that case, we affirmed a district court’s order vacating the 
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dismissal of an action and reinstating it under the court’s inherent equitable authority. The action had been dismissed on April 

1, 1997. In January 1998, the appellants refused to stipulate to 

a reinstatement. The appellants argued that the appellees failed 

to exercise due diligence in seeking reinstatement and, therefore, were not entitled to reinstatement. However, we noted the 

appellees had continued to participate in discovery, including 

participating in depositions and sending substantial amounts of 

materials to the appellees. Moreover, it rescheduled the deposition of its own expert numerous times. In January 1998, the 

appellants’ counsel took advantage of the situation which he 

helped create by refusing to stipulate to reinstatement.

We concluded that although the appellees’ counsel perhaps 

should have been more zealous, we could not condone the 

appellants’ apparent strategy of “I gotcha.” We held: “When 

the equities are balanced in this case, it is clear that appellants’ ‘I go[t]cha’ tactic entitled the [appellees] to equitable 

relief. To conclude otherwise would be to reward appellants 

for taking advantage of a situation which they helped create.” 

Id. at 775, 606 N.W.2d at 772. Given the appellants’ conduct, 

we found that it was reasonable for the appellees to believe 

the appellants would stipulate to a reinstatement. Thus, we 

concluded that the appellants’ conduct prevented them from 

benefiting under the maxim that “equity aids the diligent, 

not those who sleep on their rights.” Id. at 771, 606 N.W.2d 

at 770.

We do not find the case at bar to be analogous to Hornig. 

Whereas in Hornig, the appellants’ sustained participation in 

extensive discovery was unequivocally inconsistent with a 

position that it would not stipulate to a reinstatement of the 

case, we find no such conduct here. The clear and unmistakable conduct in Hornig clearly lulled the appellees into repose 

on diligently and timely seeking such reinstatement. Here, the 

City could not have been reasonably lulled into repose by the 

Union’s expression on February 27, 2014, that it intended to 

allow the Contract to roll over. Nor do we find that McQueen’s 
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OMAHA POLICE UNION LOCAL 101 v. CITY OF OMAHA

Cite as 292 Neb. 381

oral “counteroffer” during the telephone call on March 19 

could have reasonably led the City to believe the Union was 

waiving Article 47. The record shows none of the unequivocal 

and documented conduct that existed in Hornig.

[11] To be entitled to equitable relief from a judgment, a 

party must show that the situation is not due to his or her 

fault, neglect, or carelessness. State on behalf of L.L.B. v. Hill, 

268 Neb. 355, 682 N.W.2d 709 (2004). In this case, neither 

party clearly expressed its statements in the meetings and 

communications prior to May 15, 2014. By including Article 

47 in the Contract, the parties intended to prevent ambiguity 

concerning one party’s intentions by requiring written notice. 

As the party desiring to modify the Contract, the City had the 

duty to provide such written notice. The record does not show 

that the conversations between Wells and McQueen prior to 

April 1 justified the City’s belief that it did not need to comply 

with Article 47. The Union’s stated intention was to allow the 

Contract to extend for another year.

Attorney Fees

Finally, we conclude that the district court did not abuse 

its discretion in ordering the parties to pay their own attorney 

fees. The City failed to meet its burden of showing its equitable defenses. But the City’s interpretation of the Union’s 

conduct was not so wholly without merit as to be frivolous or 

in bad faith.

CONCLUSION

For the reasons stated above, we affirm the order of the 

district court granting declaratory judgment to the Union and 

ordering the parties to pay their own attorney fees.

Affirmed.

Miller-Lerman, J., not participating.