deNourie & Yost Homes, LLC v. Frost
| Decision Date | 26 September 2014 |
| Docket Number | S-13-656 |
| Citation | 854 N.W.2d 298 |
| Court | Nebraska Supreme Court |
| Parties | deNourie & Yost Homes, LLC, a Nebraska limited liability company, appellant, v. Joe Frost and Amy Frost, husband and wife, and Security State Bank, doing business as Dundee a Nebraska corporation, appellees. |
854 N.W.2d 298
deNourie & Yost Homes, LLC, a Nebraska limited liability company, appellant
v.
Joe Frost and Amy Frost, husband and wife, and Security State Bank, doing business as Dundee a Nebraska corporation, appellees.
S-13-656
Supreme Court of Nebraska.
Filed September 26, 2014
Jerrold L. Strasheim for appellant.
Christopher J. Tjaden, Michael J. Whaley, and Adam J. Wachal, of Gross & Welch, P.C., L.L.O., Omaha, for appellee Security State Bank.
Kristopher J. Covi, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellees Joe Frost and Amy Frost.
Heavican, C.J., Wright, Connolly, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
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 inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error.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 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.
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 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.
8. Fraud.If a defendant's partial or ambiguous representation is materially misleading, then the defendant has a duty to disclose known facts that are necessary to prevent the representation from being misleading.
9. Fraud.A party's mere silence about its financial condition cannot constitute a misrepresentation unless the other party asks for the information.
10. Fraud.The recipient of an intentionally false statement of material fact may justifiably rely on the statement if the recipient would have to investigate to discover the truth.
11. Fraud.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 ordinary 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 accomplished.
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 conspiracy is not a separate and independent tort in itself; rather, it depends upon the existence of an underlying tort.
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 plaintiff'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. Estoppel: Proof.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. Fraud: Proof.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.
Connolly, J.
I. SUMMARY
deNourie & Yost Homes, LLC (D & Y),...
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