deNourie & Youst Homes v. Frost ( 2014 )

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136 289 NEBRASKA REPORTS
Appeals’ determination that Abdullah’s remaining ineffective
assistance of trial counsel claims were alleged with insuf-
ficient specificity and thus lacked “merit.” We find, instead,
that the merits of these arguments cannot be reviewed upon
the trial record. To that extent, the Court of Appeals’ decision
is reversed.
Affirmed in part, and in part reversed.
Heavican, C.J., not participating.
deNourie & Yost Homes, LLC, Nebraska limited
a
liability company, appellant, v.Joe Frost and
Amy Frost, husband and wife, and Security
State Bank, doing business as Dundee Bank,
a Nebraska corporation, appellees.
___ N.W.2d ___
Filed September 26, 2014. No. S-13-656.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Equity: Estoppel. Although a party can raise estoppel claims in both legal and
equitable actions, estoppel doctrines have their roots in equity.
4. 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. But
when credible evidence is in conflict on material issues of fact, an appellate court
considers and may give weight to the fact the trial court observed the witnesses
and accepted one version of the facts over another.
5. Contracts: Fraud. A party to a business transaction can be liable to another
party for failing to disclose a fact that he or she knows may justifiably induce the
other to act or refrain from acting in the transaction. But a nondisclosing party
can only be liable if it was under a duty to the other to exercise reasonable care
to disclose the fact at issue.
6. Fraud: Proof. A fraudulent misrepresentation claim requires a plaintiff to estab-
lish the following elements: (1) A representation was made; (2) the representation
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DENOURIE & YOST HOMES v. FROST 137
Cite as 289 Neb. 136was false; (3) when made, the representation was known to be false or made
recklessly without knowledge of its truth and as a positive assertion; (4) the rep-
resentation was made with the intention that the plaintiff should rely on it; (5) the
plaintiff did so rely on it; and (6) the plaintiff suffered damage as a result.
7. Fraud. Misleading half-truths can constitute fraud. When a party makes a partial
or fragmentary statement that is materially misleading because of the party’s fail-
ure to state additional or qualifying facts, the statement is fraudulent. Fraudulent
misrepresentations may consist of half-truths calculated to deceive, and a repre-
sentation literally true is fraudulent if used to create an impression substantially
false. To reveal some information on a subject triggers the duty to reveal all
known material facts.
8. ____. If a defendant’s partial or ambiguous representation is materially mislead-
ing, then the defendant has a duty to disclose known facts that are necessary to
prevent the representation from being misleading.
9. ____. A party’s mere silence about its financial condition cannot constitute a
misrepresentation unless the other party asks for the information.
10. ____. The recipient of an intentionally false statement of material fact may justi-
fiably rely on the statement if the recipient would have to investigate to discover
the truth.
11. ____. The recipient of a representation must exercise ordinary prudence to
ascertain its truth when the means of discovering the truth was in his or her
hands. But in claims of intentional misrepresentations, this rule applies only in
limited circumstances.
12. Negligence: Fraud. A plaintiff’s contributory negligence is not a defense to
claims of intentional misrepresentation.
13. Fraud: Notice. Absent information that should put a recipient on notice that a
representation may be false, a person may generally rely on the truth of another’s
representation.
14. Fraud. In intentional misrepresentation cases, a plaintiff fails to exercise ordi-
nary prudence only when the plaintiff’s reliance was wholly unreasonable,
given the facts open to the plaintiff’s observation and his or her own skill
and experience.
15. Conspiracy: Words and Phrases. A civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlawful or oppressive object,
or a lawful object by unlawful or oppressive means.
16. Conspiracy: Damages. The gist of a civil conspiracy action is not the conspiracy
charged, but the damages the plaintiff claims to have suffered due to the wrongful
acts of the defendants.
17. Conspiracy: Proof. A party does not have to prove a civil conspiracy by direct
evidence of the acts charged. It may be proved by a number of indefinite acts,
conditions, and circumstances which vary according to the purpose to be accom-
plished. It is, however, necessary to prove the existence of at least an implied
agreement to establish conspiracy.
18. Actions: Conspiracy: Torts. A civil conspiracy is only actionable if the alleged
conspirators actually committed some underlying misconduct. That is, a con-
spiracy is not a separate and independent tort in itself; rather, it depends upon the
existence of an underlying tort.
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19. Conspiracy: Torts: Proof. A claim of civil conspiracy requires the plaintiff to
establish that the defendants had an expressed or implied agreement to commit an
unlawful or oppressive act that constitutes a tort against the plaintiff.
20. Conspiracy: Torts. A plaintiff is not required to plead the underlying tort of civil
conspiracy as a separate claim against the defendants.
21. Rules of the Supreme Court: Pleadings. Under Nebraska’s liberal pleading
rules, a party is only required to set forth a short and plain statement of the claim
showing that the pleader is entitled to relief.
22. Notice. A plaintiff’s allegations are sufficient if they give the defendant fair
notice of the claim to be defended against.
23. Appeal and Error. For an appellate court to consider an alleged error, a party
must specifically assign and argue it.
24. Forbearance: Estoppel. A claim of promissory estoppel requires a plaintiff to
show (1) a promise that the promisor should have reasonably expected to induce
the plaintiff’s action or forbearance, (2) the promise did in fact induce the plain-
tiff’s action or forebearance, and (3) injustice can only be avoided by enforcing
the promise. A plaintiff need not show a promise definite enough to constitute
a unilateral contract, but it must be definite enough to show that the promisee’s
reliance on it was reasonable and foreseeable.
25. Estoppel: Proof. In an estoppel claim, a plaintiff generally fails to show that he
or she reasonably and in good faith relied on the defendant’s false statements or
conduct if it knew or had reason to know that the misrepresentations were false
when made or when it acted in reliance upon them.
26. ____: ____. A plaintiff must establish each element of equitable estoppel by clear
and convincing evidence.
27. Fraud: Estoppel: Proof. A clear and convincing standard of proof applies to a
promissory estoppel claim resting on allegations of fraud.
28. Fraud: Proof. In claims for equitable relief, Nebraska law imposes a clear and
convincing standard of proof for allegations of fraud. But it does not impose a
clear and convincing standard of proof for fraud claims in actions at law.
29. ____: ____. The standard of proof for fraudulent misrepresentation claims is
proof by a preponderance of the evidence.
30. Issue Preclusion: Proof. Issue preclusion does not apply to a party who had
a higher standard of proof in the first action than the standard that applies in a
later proceeding.
Appeal from the District Court for Douglas County: Gary
B. R andall, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Jerrold L. Strasheim for appellant.
Christopher J. Tjaden, Michael J. Whaley, and Adam J.
Wachal, of Gross & Welch, P.C., L.L.O., for appellee Security
State Bank.
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DENOURIE & YOST HOMES v. FROST 139
Cite as 289 Neb. 136Kristopher J. Covi, of McGrath, North, Mullin & Kratz,
P.C., L.L.O., for appellees Joe Frost and Amy Frost.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
deNourie & Yost Homes, LLC (D&Y), contracted with Joe
Frost (Frost) and Amy Frost to finish construction on a house
the Frosts had started with another builder but had discontin-
ued 11⁄2 years earlier. The Frosts defaulted on progress pay-
ments after D&Y started work. D&Y eventually sued the Frosts
and Security State Bank, doing business as Dundee Bank (the
bank). It claimed, in part, that at different times, the defendants
falsely represented or concealed material information about
whether the Frosts could pay for the work.
In D&Y’s operative complaint, it alleged five claims against
the Frosts and the bank: (1) breach of contract against the
Frosts; (2) fraud, concealment, and nondisclosure against the
Frosts for representing that they could pay for D&Y’s work
when they were insolvent and could not perform their obliga-
tions under the contract; (3) civil conspiracy against Frost and
the bank for falsely creating the appearance, after D&Y had
stopped work, that the Frosts were solvent, to induce D&Y to
resume work; (4) equitable estoppel against the bank, as guar-
antor; and (5) promissory estoppel against the bank to enforce
its promise to pay funds directly to D&Y for its services.
The district court sustained the defendants’ motions for sum-
mary judgment on the fraud and conspiracy claims. In April
2012, before the bench trial began on the remaining claims, the
Frosts confessed judgment on D&Y’s breach of contract claim.
And after the bench trial, the court ruled for the defendants on
D&Y’s equitable and promissory estoppel claims. D&Y assigns
error to all the court’s rulings.
We will explain our holdings with some specificity in the
following pages, but briefly stated, we hold as follows:
•  he court erred in granting summary judgment to the Frosts
T
on D&Y’s fraud claim because genuine issues of material
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fact existed whether the Frosts had intentionally made false
or misleading representations that they could pay for
D&Y’s work.
•  he court erred in granting summary judgment to the bank
T
on D&Y’s civil conspiracy claim because the complaint was
sufficient to put the bank on notice that the claim rested on
the bank’s alleged conspiracy to commit fraud.
•  he court erred in granting summary judgment to the Frosts
T
on D&Y’s civil conspiracy claim because its ruling rested
on its incorrect judgment that D&Y’s fraud claim failed as
a matter of law and because it failed to consider that D&Y
alleged two separate instances of fraudulent conduct.
•  n the bench trial, the court did not err in finding that D&Y
I
had failed to prove by clear and convincing evidence that the
bank promised to finance D&Y’s construction contract and to
pay these funds directly to D&Y.
But the court’s factual findings in the bench trial do not
preclude D&Y’s proof of the same facts for its fraud claims
because a preponderance standard of proof governs those
claims, instead of the clear and convincing standard that
applied to the claims in the bench trial. We affirm in part and
reverse in part the judgment and remand the cause to the court
to conduct further proceedings consistent with this opinion.
II. BACKGROUND
1. Historical Facts
In September 2004, the Frosts obtained two loans for a new
home: a $133,000 loan to purchase a lot and a $712,500 con-
struction loan. The construction stopped in December 2005.
The bank was not the lender for either loan. But in 2007, the
bank made several business loans to the Frosts. The Frosts
used these loans to acquire and renovate houses, which they
then sold or rented.
In April 2007, the Frosts contracted with D&Y to complete
their house. The previous builder had completed the exterior
of the house, but not the interior. Jon deNourie and Shane
Yost are the principals of D&Y. The “Recitals” section of the
contract stated that the original construction had stopped in
December 2005 “due to builder default.” The contract made
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Cite as 289 Neb. 136the Frosts the general contractor. They were to pay D&Y for
materials and labor and directly pay subcontractors. D&Y
was the project manager. It would obtain subcontractors and
approve their invoices for payment by the Frosts and also
furnish materials. D&Y would bill the Frosts for outstanding
invoices. The Frosts agreed to pay $51,280 to D&Y for man-
agement serv­ces. The parties estimated construction costs to
i
be $274,350. The contract also required the Frosts to make
monthly progress payments during construction.
Yost testified in his deposition that before D&Y signed
the contract, Frost told him that he had sued the previous
builder but that they had settled the case and there were no
liens against the property. Yost also testified Frost told him
that $200,000 from the original construction loan was avail-
able for the work and that he could easily obtain an additional
$75,000. The contract’s recitals stated that the Frosts had
“made arrangements for financing” to complete construction
of the house.
But in his deposition, Yost said that sometime in 2008,
after the Frosts defaulted on D&Y’s contract, he learned that
the first builder had sued the Frosts and that there were liens
against the property. The record from the bench trial showed
that the first builder had filed a lien against the property in
April 2005 because the Frosts had defaulted on their pay-
ments. The builder had sought a $315,567.52 judgment and
a decree of foreclosure. Yost said that D&Y would not have
contracted to do the work if it had known that the previous
builder had sued the Frosts. Yost stated that because of Frost’s
representations, D&Y did not perform independent research on
the property.
After D&Y sent the first bill to the Frosts in May 2007,
they defaulted. They did not pay the entire bill, and they
wrote a check with insufficient funds to a subcontractor.
After that, D&Y required the Frosts to pay the money they
owed directly to D&Y so it could pay its subcontractors. By
August 1, the Frosts were substantially behind in payments.
On August 20, Frost told deNourie and Yost that he had not
obtained financing from his construction lender but that he
was meeting with the president of the bank to obtain funding.
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In early October, D&Y stopped work because the Frosts had
failed to pay the amount owed or to provide a commitment
letter from a lender.
At some point, D&Y informed Frost that it intended to
file a lien. After that, the parties attempted to negotiate. At
a November 1, 2007, meeting, Frost told deNourie and Yost
that the bank would be providing funding for the construction.
Frost told Yost that although he still had $200,000 left from
the construction loan, he had to get the loan extended to make
a draw against it. On November 14, Frost told D&Y that he
had received an extension for the construction loan and wrote
checks to D&Y for about $34,000. D&Y refused to resume
work because the Frosts owed considerably more.
On November 27, 2007, Amy Frost asked Yost, via e-mail,
to stop e-mailing her about the money the Frosts owed. She
stated that she had only $800 in her checking account, that
the Frosts had drained their retirement savings, that they owed
$60,000 to a lawyer, and that she was worried whether they
could pay their mortgage payments and subcontractors. On
November 30, D&Y filed a construction lien against the prop-
erty for $208,896.41. The Frosts had paid a little over $108,000
toward the total contract price.
On December 10, 2007, Jeff Royal, the president of the
bank, sent the following e-mail to Frost, which Frost then for-
warded to Yost on December 11:
Per our conversation - please provide this e-mail to
your builder, [D&Y], that you have funds available to
complete the renovation of your property . . . .
If anyone from [D&Y] needs any additional informa-
tion on this e-mail please have them call me directly . . . .
deNourie believed that this e-mail showed the funds would
come from the bank because Royal could not have been refer-
ring to funding from any other lender. From his experience
with construction loans, deNourie believed that Royal could
not have made this statement without knowing the payments
that had been made and the amount of money needed to
complete the project. According to Yost, he called Royal on
December 11, 2007, and said that D&Y was considering fore-
closure and would continue the work only if the bank would
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Cite as 289 Neb. 136pay the amount of its lien directly to D&Y. Yost said that dur-
ing this call and later calls, Royal assured him that the bank
would provide the funding and a letter detailing the terms. Yost
testified that on December 11, at Royal’s request, he sent an
e-mail to Royal to confirm their conversation:
As per our discussion, the intent of the requested letter
is to document the exact funds necessary to complete the
Frost Home . . . .
The key to this is not only total funds to be paid out,
but also the timing of these funds to be distributed to
[D&Y]. This letter will enable us to work w/ the subs in
when and how they will get paid.
Thus, the following items will help in this purpose:
1) The amount to be paid directly to [D&Y] will be
$208,896.41.
2) The above funds will be paid directly to [D&Y]
upon [the Frosts’] move-in date, refinancing/closing of
the home, or Certificate of Occupancy . . . whichever
comes first.
Yost said that he then called Royal, who told him that D&Y
should proceed with construction because the bank would pro-
vide the necessary funding. Yost said that D&Y relied on this
oral commitment from Royal and wanted a confirmation letter
only to assure its subcontractors that funding for their work
was secure.
D&Y resumed work on December 12, 2007, and paid a sig-
nificant amount to subcontractors. Yost said that on December
13, 17, and 21, he again spoke with Royal, who assured him
that funding would be available and that the bank would pay
the funds directly to D&Y. Yost said that during these calls,
Royal repeatedly assured him that the bank would send him
a written confirmation letter, but Royal never sent the letter.
On December 19, Yost e-mailed Royal to ask whether Royal
had written the letter. The record shows no e-mail response
from Royal until January 3, 2008. According to Yost, during
a telephone conversation on December 31, 2007, Royal said
that he had asked Frost to contact the lot lender about obtain-
ing the construction loan because it held the first mortgage
lien against the property, but that the bank would provide
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the funding if the lot lender did not. Yost testified that until
December 31, D&Y never heard about the lot lender’s possibly
loaning the Frosts money.
Royal’s testimony conflicted with the testimony of deNourie
and Yost. Royal admitted that on the same day he sent the
December 10, 2007, e-mail, Frost had told him he might
need money to pay his builders, and that he sent the e-mail at
Frost’s request. And Royal admitted that he had not verified
Frost’s available cash or credit worthiness. But Royal said he
did not have a specific plan to provide funds to D&Y when he
sent the e-mail. He testified that the reason he stated Frost had
funds available was because (1) he knew Frost had recently
generated income from real estate transactions on projects the
bank had financed and (2) Frost had told him that Amy Frost’s
father would make funds available to them for the house.
Although Royal had not spoken to Amy Frost’s father when
he sent the e-mail, he said he was not committing the bank to
loan the Frosts money by stating that they had funds available
because he knew that Amy Frost’s father wanted to help them.
Royal said he was simply committed to helping the Frosts
come up with the money.
Regarding his conversations with Yost, Royal said he told
Yost that Frost had mentioned getting money from the lot
lender so that he would not need help from Royal. But
deNourie testified that D&Y would not have resumed work
if Royal had said that Frost was seeking a loan from the lot
lender. Royal denied telling Yost that the bank would directly
pay D&Y the amount of its lien. Royal could not recall having
a telephone conversation with Yost about an agreement with
the bank on December 11 or 19, 2007. Royal said he never
sent a written confirmation to provide funding because the
Frosts never applied for a loan.
On January 3, 2008, Royal replied to Yost’s December 19,
2007, e-mail asking whether Royal had written a confirma-
tion letter yet. In Royal’s January 3, 2008, response, he asked
whether Yost had ever connected with Frost on “this.” Yost
testified that he understood “this” to refer to a possible loan
from the lot lender. Yost responded to Royal that Frost had
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Cite as 289 Neb. 136not returned his calls. He asked Royal to contact Frost and
find out whether Frost was going to “refinance” through the
lot lender or the bank. Yost said D&Y would like to have
the financing resolved because D&Y was close to finishing
the house.
On January 4, 2008, Yost sent an e-mail to Frost stating
that Royal was waiting to hear from Frost about the financ-
ing. He asked Frost to verify Royal’s statement that Frost was
seeking a loan from the lot lender but that otherwise Royal
would “set it up” at the bank. Frost did not respond. Royal
testified that by “set it up,” he meant that he would “be open
to working with the Frosts and their overall financial picture to
make funds available for [D&Y] to the extent that [the Frosts]
wanted them.”
On January 10, 2008, Royal sent an e-mail to Yost stating
that Frost had said he was “in good shape” with the lot lender
and asking Yost to confirm that information. Neither Frost
nor Royal replied to Yost’s later inquiries about the financ-
ing. On January 30, the house was inspected and approved
for occupancy.
On March 3, 2008, Frost told Yost that the lot lender would
not provide a loan to the Frosts but that he was working with
the bank to obtain the money. Royal acknowledged that after
the lot lender refused to loan the Frosts money, he spoke to
Frost about possibly loaning money to Amy Frost’s father,
who would provide the money to the Frosts to pay D&Y.
Royal said to settle the dispute with D&Y, the bank loaned
$150,000 to Amy Frost’s father, who made the money avail-
able to the Frosts. The Frosts received this money, but Frost
then claimed that D&Y’s work was inferior and did not pay
anything to D&Y. Royal claimed that he did not know why the
Frosts had been turned down for a loan by the lot lender and
did not ask.
On March 18, 2008, Royal informed deNourie and Yost
that the bank could not loan money to the Frosts because the
bank had purchased Frost’s mortgage company and Frost was
now the bank’s employee. Yost said that this meeting was the
first time Royal had notified D&Y that the bank would not
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provide funding for the construction. deNourie said that D&Y
did not learn about the bank’s loan to Amy Frost’s father until
November 2008, when it took Royal’s deposition.
In April 2008, D&Y sued the Frosts and the bank. At some
point, the house was foreclosed. In December 2008, the Frosts
filed for chapter 7 bankruptcy. D&Y sought a determination in
bankruptcy court that the debt to it was nondischargable.1 The
bankruptcy court stayed that action pending the outcome of
this litigation.
2. P rocedural History
In 2011, the Frosts and the bank moved for summary judg-
ment. The court granted the motions in part. The court deter-
mined that the Frosts had no duty to disclose their financial
condition because D&Y had not asked for this information. It
found that the Frosts made no misleading representations about
their financial condition and that D&Y had instead assumed
that they were solvent. It granted summary judgment to the
Frosts on D&Y’s fraud claim. Because it found no evidence
of fraud, it concluded that the civil conspiracy claim against
the Frosts failed. It further concluded that the conspiracy claim
failed against the bank because D&Y had not specifically
alleged a separate fraud claim against the bank. It granted sum-
mary judgment to the Frosts and the bank on the conspiracy
claim. But it denied summary judgment on D&Y’s equitable
estoppel and promissory estoppel claims.
In April 2013, at the start of the bench trial, the Frosts
confessed judgment for $245,000 on D&Y’s breach of con-
tract claim. After the trial, the court entered judgment against
D&Y on its remaining claims of equitable and promis-
sory estoppel.
III. ASSIGNMENTS OF ERROR
D&Y assigns, reordered and somewhat reduced, that the
court erred in (1) granting partial summary judgment to the
defendants and failing to rule that the defendants did not
meet their burden of proof for summary judgment; (2) failing
1
See 11 U.S.C. § 523(a)(2) (2006).
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Cite as 289 Neb. 136to view the summary judgment evidence in the light most
favorable to D&Y and to give it the benefit of all reasonable
inferences; (3) failing to rule on D&Y’s claims of fraudulent
representations and promises at the summary judgment stage;
(4) ruling that the Frosts had no duty to disclose their financial
condition despite evidence that they did have this duty; (5)
failing to rule on objections to evidence taken under advise-
ment; (6) failing to find that D&Y’s reliance on the bank’s
promise was reasonable and in good faith; (7) failing to find
that D&Y had proved all the elements of its claims for promis-
sory estoppel and equitable estoppel; and (8) failing to award
D&Y $208,896.41, plus prejudgment interest.
IV. STANDARD OF REVIEW
[1,2] We will affirm a lower court’s grant of summary judg-
ment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from the facts and that the mov-
ing party is entitled to judgment as a matter of law.2 In review-
ing a summary judgment, we view the evidence in the light
most favorable to the party against whom the judgment was
granted, and give that party the benefit of all reasonable infer-
ences deducible from the evidence.3
[3,4] Regarding the trial court’s judgment after the bench
trial on D&Y’s equitable and promissory estoppel claims,
the traditional distinction between legal and equitable claims
remains relevant to our review of the court’s judgment.4
Although a party can raise estoppel claims in both legal
and equitable actions, estoppel doctrines have their roots in
­equity.5 In reviewing judgments and orders disposing of claims
2
SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 N.W.2d 745 (2014).
3
Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).
4
See Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 493(2014).
5
See, D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010);
Rauscher v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844 (2005); 1 Dan
B. Dobbs, Dobbs Law of Remedies § 2.3(5) (2d ed. 1993); 28 Am. Jur. 2d
Estoppel and Waiver §§ 1 and 34 (2011).
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s
­ ounding in equity, we decide factual questions de novo on the
record and reach independent conclusions on questions of fact
and law.6 But when credible evidence is in conflict on material
issues of fact, we consider and may give weight to the fact the
trial court observed the witnesses and accepted one version of
the facts over another.7
V. ANALYSIS
1. Court Incorrectly Granted the Defendants
Summary Judgment on D&Y’s Claims
for Fraud and Civil Conspiracy
(a) Questions of Fact Precluded Summary
Judgment for the Frosts on
D&Y’s Fraud Claim
In D&Y’s fraud claim against the Frosts, it alleged that (1)
they induced D&Y to enter the contract by falsely representing
their ability to pay for D&Y’s work and (2) they concealed
that they were insolvent and lacked the resources to fulfill
their obligations under the contract. As noted, the court found
that the Frosts had no duty to disclose their financial condition
because the facts show none of the triggering circumstances
requiring disclosure of material facts under the Restatement
(Second) of Torts § 551.8
[5] Under § 551 of the Restatement, which we have adopted,9
a party to a business transaction can be liable to another party
for failing to disclose a fact that he or she knows may jus-
tifiably induce the other to act or refrain from acting in the
transaction. But a nondisclosing party can only be liable if it
was under a duty to the other to exercise reasonable care to
6
See, Neb. Rev. Stat. § 25-1925 (Reissue 2008); Christiansen, supra note
4; American Family Mut. Ins. Co. v. Regent Ins. Co., 288 Neb. 25, 846
N.W.2d 170 (2014); In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d
868 (2012).
7
Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013).
8
Restatement (Second) of Torts § 551 (1977).
9
See Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110(2000), overruled in part on other grounds, Knights of Columbus Council
3152 v. KFS BD, Inc., 280 Neb. 904, 791 N.W.2d 317 (2010).
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Cite as 289 Neb. 136disclose the fact at issue.10 Whether a duty to disclose exists
is determined by all the circumstances, but § 551(2) sets out
“several situations which have been consistently recognized
as creating a duty to disclose.”11 The court found that none of
these circumstances were present.
D&Y contends that the court erred because it overlooked
D&Y’s claims and evidence of fraudulent misrepresentations
that induced it to enter into the contract. D&Y argues that its
evidence showed there were genuine issues of fact whether the
Frosts had falsely represented the following facts:
•  he Frosts’ first builder defaulted, and they had sued the
T
builder (when the first builder had sued them for defaulting).
•  o liens had been filed against the property (when contrac-
N
tors had filed liens against it).
•  hey had $200,000 from the original construction loan (when
T
they had defaulted on this loan).
•  hey could easily obtain cash or financing for an additional
T
$75,000 toward the contract price.
The Frosts counter that they had no duty to disclose their
financial condition because they made no ambiguous or mis-
leading statements about their finances. They also contend
that whether they were insolvent was immaterial to the trans-
action because the construction was to be funded by third-
party financing. Finally, they contend that D&Y did not rely
on their statements.
But to support their nonreliance argument, the Frosts cherry-
pick statements from deNourie’s depositions. deNourie stated
that he could not recall “specifics” about his conversations
with Frost before the parties contracted for the work. And
the Frosts point to Yost’s deposition statement that he and
d
­ eNourie had assumed the Frosts were solvent because Frost
owned a mortgage company that was located in a building that
he owned. We disagree that there were no genuine issues of
fact regarding these issues.
10
See Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb.
997, 792 N.W.2d 484 (2011).
11
See Streeks, supra note 9, 258 Neb. at 590, 605 N.W.2d at 118.
Nebraska Advance Sheets
150 289 NEBRASKA REPORTS
[6] Initially, we point out that in addition to alleging fraudu-
lent concealment, D&Y alleged the Frosts made fraudulent
misrepresentations. A fraudulent misrepresentation claim
requires a plaintiff to establish the following elements: (1) A
representation was made; (2) the representation was false; (3)
when made, the representation was known to be false or made
recklessly without knowledge of its truth and as a positive
assertion; (4) the representation was made with the intention
that the plaintiff should rely on it; (5) the plaintiff did so rely
on it; and (6) the plaintiff suffered damage as a result.12
[7] But misleading half-truths can also constitute fraud:
When a party makes a partial or fragmentary statement
that is materially misleading because of the party’s failure
to state additional or qualifying facts, the statement is
fraudulent. “Fraudulent misrepresentations may consist
of half-truths calculated to deceive, and a representation
literally true is fraudulent if used to create an impression
substantially false.” “‘To reveal some information on
a subject triggers the duty to reveal all known material
facts.’” Consistent with imposing liability for half-truths,
the Restatement (Second) of Torts § 527 provides that an
ambiguous statement is fraudulent if made with the intent
that it be understood in its false sense or with reckless
disregard as to how it will be understood.13
[8] We have recognized an overlap between fraudulent
concealment and fraudulent misrepresentation claims. If a
defendant’s partial or ambiguous representation is materially
misleading, then under § 551(2)(b) of the Restatement, the
defendant has a duty to disclose known facts that are necessary
to prevent the representation from being misleading.14
It is true that the record shows Yost admitted to making some
assumptions about Frost’s solvency based on the appearance
of a successful mortgage business that he owned. The court
apparently relied on Yost’s statement in sustaining the Frosts’
12
See Knights of Columbus Council 3152, supra note 9.
13
Id. at 922-23, 791 N.W.2d at 331-32.
14
See Knights of Columbus Council 3152, supra note 9.
Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 151
Cite as 289 Neb. 136motion for summary judgment. But the court erred in implicitly
concluding that because of D&Y’s assumptions, it could not
have relied upon or been misled by Frost’s positive statements
of facts about the Frosts’ ability to pay for D&Y’s work. The
Frosts’ house had not been worked on for 11⁄2 years when they
asked D&Y to finish the construction. So a fact finder could
reasonably conclude that deNourie and Yost would have been
reluctant to contract for the work without some explanation for
why the first builder stopped its work—even if they generally
believed Frost ran a successful business. Under these circum-
stances, a fact finder could determine that deNourie and Yost’s
assumptions about Frost’s solvency made them more likely to
believe Frost’s statements, while still finding that they had in
fact relied on them.
[9] And we recognize that a party’s mere silence about
its financial condition cannot constitute a misrepresentation
unless the other party asks for the information.15 But here, the
Frosts voluntarily made statements about their ability to pay
for D&Y’s work and they had to do so in a manner that was
not false or materially misleading. Giving D&Y the benefit of
all reasonable inferences, the record supports its claim that the
Frosts made fraudulent misrepresentations or concealed mate-
rial information that they had a duty to disclose.
In his deposition, deNourie stated that Frost had told him
before executing the contract that no liens against the property
existed. Yost testified that before entering the contract, Frost
told him that he had sued the previous builder but that the
litigation had been resolved and there were no liens against the
property. Yost said that Frost told him that he had $200,000
left from the original construction loan and that he could easily
obtain an additional $75,000 in cash or financing. Moreover,
the contract itself stated that the original construction had
stopped in December 2005 “due to builder default” and that
the Frosts had arranged financing to complete the construction
of their house.
15
See, Moyer v. Richardson Drug Co., 70 Neb. 190, 97 N.W. 244 (1903); 37
Am. Jur. 2d Fraud and Deceit § 223 (2013).
Nebraska Advance Sheets
152 289 NEBRASKA REPORTS
So this is not a case in which a party to a contract prom-
ised to seek financing or was merely silent about its ability to
fulfill its obligations. If a fact finder believed deNourie and
Yost’s evidence, then Frost represented that he had $200,000
left from a construction loan when he had defaulted on the first
construction contract funded by the loan and been sued by the
builder. And if the Frosts had defaulted on their original con-
struction contract, a fact finder could conclude that the Frosts
knew their ability to obtain further draws against the construc-
tion loan was likely compromised. So D&Y’s evidence was
sufficient to raise an issue of fact whether Frost knew his
representation about funds being available from the original
construction loan to pay for D&Y’s work was false or materi-
ally misleading.
In some circumstances, Frost’s statement that he could eas-
ily obtain cash or financing for an additional $75,000 toward
the contract price would amount to an opinion of his abili-
ties. But here, a fact finder could conclude that Frost knew
his statement was false when made or made recklessly to
induce D&Y’s reliance on it without knowledge that it was
true. The same facts that undermine his representation about
funding availability from the original construction loan sup-
port an inference that the Frosts knew in April 2007 that they
could not easily obtain cash or financing for an additional
$75,000. The evidence supports a finding that the Frosts had
defaulted on the original construction contract and that soon
after D&Y’s work began, the Frosts defaulted on required
payments during construction. In sum, the court failed to
consider whether a fact finder could conclude that Frost made
intentionally false or misleading statements intended to dispel
any concerns D&Y had about the unfinished construction and
the Frosts’ ability to pay for the work to induce D&Y to enter
the contract.
[10,11] The Frosts also argue that D&Y failed to exercise
reasonable diligence to ask for financial statements show-
ing the Frosts’ ability to pay for its work. But this argument
assumes that the Frosts did not make fraudulent statements
about their ability to pay for D&Y’s work. If D&Y proves that
they did, then the applicable rule is that the recipient of an
Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 153
Cite as 289 Neb. 136intentionally false statement of material fact may justifiably
rely on the statement if the recipient would have to inves-
tigate to discover the truth.16 It is true that under Nebraska
law, the recipient of a representation must exercise ordinary
prudence to ascertain its truth when the means of discovering
the truth is in his or her hands.17 But in claims of intentional
misrepresentations, we have applied this rule only in limited
circumstances: (1) when a property’s defects would be obvi-
ous to a potential buyer upon inspection18; (2) when the seller
of a business gave the buyer all the expense and sales records
to a buyer to ascertain the accuracy of the seller’s statements
regarding profits, did not vouch for his estimates, and recom-
mended that the buyer have his estimates independently eval­
uated, but the buyer failed to follow through19; and (3) when
a plaintiff failed to read a legal agreement before signing it
and had an opportunity to do so,20 assuming that the plaintiff’s
execution of the contract was not induced by fraud.21
[12-14] And regarding intentional misrepresentations, we
have explained that a plaintiff’s contributory negligence is
not a defense to such claims: “‘[A] fraud-feasor will not be
heard to assert that his victim was negligent in relying on the
misrepresentation.’”22 So, absent information that should put a
recipient on notice that a representation may be false, a person
may generally rely on the truth of another’s representation.23 In
intentional misrepresentation cases, a plaintiff fails to exercise
ordinary prudence only when the plaintiff’s reliance is wholly
16
See Omaha Nat. Bank v. Maufacturers Life Ins. Co., 213 Neb. 873, 332
N.W.2d 196 (1983).
17
See Lucky 7 v. THT Realty, 278 Neb. 997, 775 N.W.2d 671 (2009).
18
See id.19
Schuelke v. Wilson, 250 Neb. 334, 549 N.W.2d 176 (1996).
20
See Omaha Nat. Bank, supra note 16.
21
See Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d
792 (2005).
22
See Omaha Nat. Bank, supra note 16, 213 Neb. at 884, 332 N.W.2d at
203, quoting Kubeck v. Consolidated Underwriters, 267 Or. 548, 517 P.2d
1039 (1974).
23
Id.Nebraska Advance Sheets
154 289 NEBRASKA REPORTS
unreasonable, given the facts open to the plaintiff’s observa-
tion and his or her own skill and experience.24 “[A] plaintiff
‘“may not close his eyes to what is obviously discoverable
by him.”’”25
But here, the truth of the facts presented by Frost’s alleged
false statements was not obvious. Discovering whether the first
builder had defaulted, whether liens had been placed on the
property, and whether $200,000 was still available from the
construction loan money would have required an investigation.
So, a fact finder could reasonably infer that the Frosts made
intentionally false or misleading statements and that D&Y jus-
tifiably relied on them.
Finally, if a fact finder believed D&Y’s evidence, he or she
could conclude that Frost’s alleged misrepresentations were
material to the transaction. Yost testified that D&Y would not
have entered the contract if it had known the first builder had
sued the Frosts for defaulting on the contract. Obviously, if
D&Y had known that the Frosts defaulted, it would have ques-
tioned whether the Frosts were in financial trouble and could
obtain funding from the original construction loan or a new
loan. Equally important, this information would have alerted
D&Y that filing a lien if the Frosts defaulted might be futile.
We conclude that the court erred in granting summary judg-
ment to the Frosts on D&Y’s fraud claim.
(b) Questions of Fact Precluded Summary
Judgment for the Frosts and the Bank
on D&Y’s Civil Conspiracy Claim
In D&Y’s civil conspiracy claim, it alleged that Frost and
the bank conspired to conceal that the Frosts were insolvent
and could not pay their debts by assuring D&Y that funding
was available to pay D&Y the amount of their lien. D&Y
alleged that the bank, as part of the conspiracy, assured D&Y
that funding for the full amount of D&Y’s lien was available
24
Id.25
Lucky 7, supra note 17, 278 Neb. at 1004, 775 N.W.2d at 676.
Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 155
Cite as 289 Neb. 136to the Frosts to pay D&Y for its work. It alleged that this
deception benefited the bank by maximizing the returns the
bank would receive on loans it had already made to the Frosts.
It further alleged that the bank wanted to conceal from other
creditors that the Frosts were insolvent and that the bank
had already made loans to the Frosts or for their benefit that
exceeded the bank’s legal lending limit. The court granted
summary judgment to both the Frosts and the bank on the
conspiracy claim.
(i) Court Erred in Granting Summary
Judgment to the Frosts
Because the court had already determined that D&Y’s fraud
claim against the Frosts failed as a matter of law, it concluded
that Frost could not have conspired to commit fraud. It granted
the Frosts summary judgment on this claim.
D&Y contends that the court erred because D&Y’s evidence
established that after D&Y stopped work in October 2007,
Frost and the bank were acting in concert. D&Y contends that
the conspiracy occurred when Royal, on Frost’s behalf, sent
the December 10, 2007, e-mail to Frost to forward to D&Y
and when Royal assured Yost in telephone conversations that
the bank would finance the Frosts’ construction and pay the
amount of D&Y’s lien directly to it. In addition, D&Y argues
that the court failed to recognize that its fraud claim and civil
conspiracy claim rested on two separate periods. That is, its
second cause of action for fraud rested on facts showing the
Frosts’ alleged misrepresentations in April 2007, before the
parties entered into the contract. But its third cause of action
for civil conspiracy rested on facts that occurred in December
2007, after D&Y stopped work on the house in October. D&Y
alleged that after D&Y stopped work, Frost and the bank con-
spired to make fraudulent misrepresentations that the Frosts
had funding available to pay for D&Y’s work to induce D&Y
to resume work.
We agree with D&Y that the court incorrectly granted Frost
summary judgment on D&Y’s third cause of action because
Nebraska Advance Sheets
156 289 NEBRASKA REPORTS
it had determined that D&Y’s second cause of action against
the Frosts failed as a matter of law. First, we have determined
that the court incorrectly granted summary judgment to the
Frosts on D&Y’s second cause of action for conduct occurring
in April 2007. Second, even if its ruling had been proper, it
would not have invalidated D&Y’s claim that Frost colluded
with Royal in December 2007 to make fraudulent misrepre-
sentations about the availability of funding to induce D&Y to
resume work.
(ii) Court Erred in Granting Summary
Judgment to the Bank
The court concluded that D&Y’s conspiracy claim against
the bank failed because a civil conspiracy claim depends on the
existence of an underlying tort. Because D&Y did not allege
a separate fraudulent concealment claim against the bank, the
court concluded that D&Y could not maintain a conspiracy
claim against the bank. We disagree.
[15,16] A civil conspiracy is a combination of two or more
persons to accomplish by concerted action an unlawful or
oppressive object, or a lawful object by unlawful or oppressive
means.26 The gist of a civil conspiracy action is not the con-
spiracy charged, but the damages the plaintiff claims to have
suffered due to the wrongful acts of the defendants.27
[17,18] A party does not have to prove a civil conspiracy
by direct evidence of the acts charged. It may be proved by
a number of indefinite acts, conditions, and circumstances
which vary according to the purpose to be accomplished. It
is, however, necessary to prove the existence of at least an
implied agreement to establish conspiracy.28 Furthermore, a
civil conspiracy is only actionable if the alleged conspirators
actually committed some underlying misconduct.29 That is,
a conspiracy is not a separate and independent tort in itself;
26
Eicher, supra note 21.
27
Id.
28
Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
29
Id.Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 157
Cite as 289 Neb. 136rather, it depends upon the existence of an underlying tort.30 So
without such underlying tort, there can be no cause of action
for a conspiracy to commit the tort.
[19,20] As these rules illustrate, a claim of civil conspiracy
requires the plaintiff to establish that the defendants had an
expressed or implied agreement to commit an unlawful or
oppressive act that constitutes a tort against the plaintiff. But
we have never held that the plaintiff must plead the underly-
ing tort of civil conspiracy as a separate claim against the
defendants. To the contrary, in Ashby v. State,31 we specifically
looked to the plaintiff’s allegations of the underlying tort in his
conspiracy claim. The tort allegations were not set forth as a
separate claim in the complaint, nor need they be.
[21,22] Nebraska is a notice pleading jurisdiction. Under
our liberal pleading rules, a party is only required to set forth a
short and plain statement of the claim showing that the pleader
is entitled to relief.32 A plaintiff’s allegations are sufficient if
they give the defendant fair notice of the claim to be defended
against.33 We conclude that D&Y met this requirement.
But the bank argues that the court’s summary judgment
order was correct because no evidence established that the
bank conspired with the Frosts to conceal their insolvency in
April 2007. This argument is irrelevant. As stated, the con-
spiracy claim allegations focused on conduct occurring in
December 2007, after D&Y had stopped working in October.
Finally, the bank argues that no evidence established the fol-
lowing facts: (1) The bank knew the Frosts were insolvent,
(2) the bank assured D&Y that it would provide a loan for the
construction, or (3) the bank agreed to conceal that it would
not provide funding. But the court did not address these factual
issues, and we decline to do so for the first time on appeal. We
conclude only that the court erred in granting summary judg-
ment for its stated reason.
30
Id.31
Id.32
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
33
See id.Nebraska Advance Sheets
158 289 NEBRASKA REPORTS
2. D&Y Has Not Shown That the Court Erred
in Denying Its Claims for E quitable
and P romissory Estoppel
As explained, after the court granted summary judgment to
the Frosts and the bank on D&Y’s fraud and civil conspiracy
claims, it ruled in a bench trial for the defendants on D&Y’s
claims of equitable and promissory estoppel.
In D&Y’s claim for equitable estoppel, it alleged that “[o]n
or about December 10, 2007, [the bank] committed to paying
D&Y $208,000 for completion of [the house].” It alleged that
the bank’s commitment was akin to a guarantee of the Frosts’
payment of the contract and that the bank was estopped to deny
the commitment. In its claim for promissory estoppel, D&Y
alleged that it relied on Royal’s written and oral representations
in completing the contract. It alleged that the bank knew or
should have known that D&Y would rely on its representations
in providing its services.
In finding for the defendants on D&Y’s equitable estoppel
claim, the court concluded that D&Y had alleged it resumed
and finished the work only because of Royal’s representations
in the December 10, 2007, e-mail. It stated that if D&Y had
immediately resumed work, its reliance on the e-mail would
have presented a closer case. But the court emphasized that
Yost had called Royal on December 11, the day D&Y received
the e-mail, and then asked Royal in an e-mail to confirm their
alleged agreement over the telephone. The court recognized
that the parties disputed whether Royal had orally committed
to provide funding for the work. But it stated that “it is undis-
puted that Royal never responded to any of Yost’s requests for
a letter of assurance.”
From these findings, the court determined that D&Y had
not established by clear and convincing evidence that it had
“relied in good faith on Royal’s December 10, 2007 email.” It
noted that D&Y had not specifically alleged that it relied on a
combination of the e-mail and later telephone calls with Royal.
But the court concluded that this allegation would have failed
because it found that D&Y had failed to establish by clear and
Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 159
Cite as 289 Neb. 136convincing evidence that Royal gave any assurances to Yost in
telephone conversations.
In ruling against D&Y on its promissory estoppel claim, the
court concluded that D&Y had not reasonably relied on the
bank’s alleged promise:
A reasonable person in similar circumstances would not
have resumed construction on the Property at issue one
day after receiving no response to a request for a written
letter of assurance. Furthermore, D&Y did not present
evidence during trial establishing that it knew any of the
answers to the questions in Yost’s December 11, 2007
email regarding the method of payment of the alleged
loan, to whom the funds would be paid, or the timing
of payment prior to resuming construction. The Court
finds that any reliance on [the bank’s] alleged prom-
ise without answers to these critical questions would
have been both unwise and unreasonable, particularly
in this situation where D&Y was operating as a sophis-
ticated business entity within the construction industry
and was actively seeking to protect its financial interests
after the Frosts had failed to pay for much of the work
already completed.
(a) D&Y Has Not Argued That the Court’s
Judgment on Its Equitable Estoppel
Claim Was Incorrect
In D&Y’s brief, it fails to explain why it believes the court
erred in finding that it failed to prove its claim that the bank
should be equitably estopped from denying it had committed
to guaranteeing the Frosts’ payment of the contract price. D&Y
argues only that we try the issue de novo and that we should
not defer to the court’s reliance on Royal’s deposition testi-
mony because he did not appear at trial.
[23] As stated in the standard of review section, we agree
that this claim is grounded in equity and that for such appeals,
we decide factual questions de novo on the record. But to
raise a factual question on appeal, D&Y must comply with our
rules for appellate briefs. For an appellate court to consider an
Nebraska Advance Sheets
160 289 NEBRASKA REPORTS
alleged error, a party must specifically assign and argue it.34
Although we conclude that the court’s reasoning is relevant to
D&Y’s promissory estoppel claim, we decline to address its
assignments of error related to equitable estoppel.
(b) Court Did Not Err in Entering Judgment
for the Defendants on D&Y’s
Promissory Estoppel Claim
Regarding the promissory estoppel judgment, D&Y argues
that the undisputed evidence on its promissory estoppel claim
showed that Yost asked Royal to send D&Y a confirmation
letter of his oral promise and that Royal never complied. D&Y
contends that the court erred in characterizing the requested
letter as a “letter of assurance” and in concluding that these
facts showed D&Y had not reasonably or in good faith relied
on Royal’s promise. D&Y argues that although it wanted the
letter in order to get its subcontractors to work on the house
again, D&Y itself reasonably relied on Royal’s oral promise
in a December 11, 2007, telephone conversation to fund the
work. D&Y argues that a party’s reliance on a promise is
reasonable when it has no reason to know the truth or the
means of discovering the truth with reasonable diligence. It
contends that it did not know, and could not have discovered
with reasonable diligence, that Royal’s promises were untrue
when made.
[24] A claim of promissory estoppel requires a plaintiff to
show (1) a promise that the promisor should have reasonably
expected to induce the plaintiff’s action or forbearance, (2) the
promise did in fact induce the plaintiff’s action or forebear-
ance, and (3) injustice can only be avoided by enforcing the
promise.35 Under Nebraska law, a plaintiff need not show a
promise definite enough to constitute a unilateral contract, but
34
See, Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779,
844 N.W.2d 755 (2014); Curtis v. Giff, 17 Neb. App. 149, 757 N.W.2d 139(2008). See, also, See, Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).
35
See, Cass Cty. Bank v. Dana Partnership, 275 Neb. 933, 750 N.W.2d 701(2008); Fast Ball Sports v. Metropolitan Entertainment, 21 Neb. App. 1,
835 N.W.2d 782 (2013), citing Rosnick v. Dinsmore, 235 Neb. 738, 457
N.W.2d 793 (1990).
Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 161
Cite as 289 Neb. 136it must be definite enough to show that the promisee’s reliance
on it was reasonable and foreseeable.36
[25] We agree with D&Y that in an estoppel claim, a plain-
tiff generally fails to show that he or she reasonably and in
good faith relied on the defendant’s false statements or con-
duct if it knew or had reason to know that the misrepresenta-
tions were false when made or when it acted in reliance upon
them.37 Our case law is consistent with these cited authorities.
We have held that a property owner did not rely in good faith
on a zoning variance when the owner had learned that the
variance faced a court challenge before beginning a construc-
tion project.38
Moreover, D&Y’s reliance on Royal’s promise to provide
funding for the project would not be in bad faith just because
the promise was oral.39 And D&Y’s evidence showed that it
was relying on both Royal’s December 10, 2007, e-mail and
his alleged statements to clarify the e-mail in a December 11
telephone conversation with Yost. D&Y also presented evi-
dence to show that Royal assured Yost that he would send a
confirmation letter of the bank’s oral promise and repeated
these statements in later telephone calls. Under D&Y’s version
of events, until Royal informed D&Y that Frost was seeking
a loan from the lot lender, D&Y would have had no reason
to suspect that Royal’s alleged promise to provide funding
was false.
But we disagree with D&Y that all the facts relevant to its
promissory estoppel claim were undisputed. In his deposition,
Royal denied telling Yost that the bank would provide fund-
ing for D&Y’s work. He could not recall speaking to Yost on
December 11, 2007, when Yost claimed Royal orally promised
36
See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708
N.W.2d 235 (2006).
37
See, Heckler v. Community Health Services, 467 U.S. 51, 104 S. Ct.
2218, 81 L. Ed. 2d 42 (1984), citing 3 John Norton Pomeroy, A Treatise
on Equity Jurisprudence §§ 805, 810, and 812 (Spencer W. Symons ed.,
5th ed. 1941); Restatement (Second) of Torts, supra note 8, § 541 and
comment a.
38
See Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992).
39
See Cass Cty. Bank, supra note 35.
Nebraska Advance Sheets
162 289 NEBRASKA REPORTS
to provide the funding. And Royal said he told Yost that Frost
had mentioned getting money from the lot lender. The district
court specifically found that D&Y had failed to prove that
Royal promised to fund D&Y’s work.
We recognize that the court made this finding in decid-
ing D&Y’s equitable estoppel claim instead of its promissory
estoppel claim. But we cannot ignore this finding, which is
ostensibly incompatible with its conclusion that D&Y did not
reasonably rely on Royal’s alleged oral promises. The court’s
conclusion that D&Y did not rely in good faith on Royal’s
promise rests on an implicit assumption that a promise was
made. We believe the court’s order is consistent only if it is
interpreted as concluding D&Y had failed to prove by clear
and convincing evidence that Royal’s oral statements were
sufficiently definite to show a promise to fund D&Y’s work
that would reasonably and foreseeably induce its reliance. And
we conclude there is support for this finding. But the court’s
judgment for the defendants on D&Y’s estoppel claims does
not preclude D&Y from attempting to prove—for its claims of
fraud and civil conspiracy—that Royal made statements that
foreseeably induced its reliance.
3. D&Y’s Failure to Satisfy Clear and Convincing
Standard of P roof Does Not P reclude
Litigation of Same Issue Under a
Lower Standard of P roof
[26-30] A plaintiff must establish each element of equi-
table estoppel by clear and convincing evidence.40 The same
standard of proof applies to a promissory estoppel claim rest-
ing on allegations of fraud. In claims for equitable relief,
Nebraska law imposes a clear and convincing standard of
proof for allegations of fraud.41 But it does not impose a clear
40
Double K, Inc. v. Scottsdale Ins. Co., 245 Neb. 712, 515 N.W.2d 416(1994); Commerce Sav. Scottsbluff v. F.H. Schafer Elev., 231 Neb. 288,
436 N.W.2d 151 (1989).
41
See, Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007);
Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998); Kracl v.
Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990); Bock v. Bank of Bellevue,
230 Neb. 908, 434 N.W.2d 310 (1989).
Nebraska Advance Sheets
DENOURIE & YOST HOMES v. FROST 163
Cite as 289 Neb. 136and convincing standard of proof for fraud claims in actions at
law.42 The standard of proof for fraudulent misrepresentation
claims is proof by a preponderance of the evidence.43 And issue
preclusion does not apply to a party who had a higher standard
of proof in the first action than the standard that applies in a
later proceeding.44
VI. CONCLUSION
We conclude that the court erred in granting summary judg-
ments to the Frosts on D&Y’s fraud claim and to the Frosts
and the bank on D&Y’s civil conspiracy claim. In its final
judgment, we conclude that the court did not err in finding that
D&Y failed to prove by clear and convincing evidence that
Royal, the bank’s president, made a promise to fund D&Y’s
work that was definite enough to induce D&Y’s foreseeable
reliance on the statement. But we conclude that this finding
does not preclude D&Y from attempting to prove otherwise
under the lower standard of proof that applies to its fraud
claims. We reverse the court’s summary judgment orders and
remand the cause to the court to conduct further proceedings
on D&Y’s claims of fraud and civil conspiracy.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Stephan, J., not participating.
42
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011).
43
See Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997).
44
See, In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002);
State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995); Restatement (Second)
of Judgments § 28(4) (1982).