Blinn v. Beatrice Community Hosp.

Decision Date06 January 2006
Docket NumberNo. S-04-079.,S-04-079.
Citation270 Neb. 809,708 N.W.2d 235
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Rules of the Supreme Court: Pleadings. Nebraska courts will look to federal decisions interpreting corresponding federal rules for guidance in interpreting similar Nebraska civil pleading rules.

3. Courts: Pleadings. Even when a party does not move for leave to amend pleadings, a court may constructively amend pleadings on unpleaded issues in order to render a decision consistent with the trial.

4. Courts: Pleadings: Appeal and Error. Constructive amendment of pleadings on appeal is permitted when the effect will be to acknowledge that certain issues upon which the lower court's decision has been based or issues consistent with the trial court's judgment have been litigated.

5. Rules of the Supreme Court: Pleadings. The key inquiry of Neb. Ct. R. of Pldg. in Civ. Actions 15(b) (rev.2003) for "express or implied consent" to trial of an issue not presented by the pleadings is whether the parties recognized that an issue not presented by the pleadings entered the case at trial.

6. Courts: Pleadings. In determining whether to allow amendment of pleadings to conform to the evidence, a court initially should consider whether the opposing party expressly or impliedly consented to the introduction of the evidence.

7. Pretrial Procedure: Pleadings. Express consent to trial of an issue not presented by the pleadings may be found when a party has stipulated to an issue or the issue is set forth in a pretrial order.

8. Pleadings. Implied consent to trial of an issue not presented by the pleadings may arise in two situations. First, the claim may be introduced outside of the complaint—in another pleading or document—and then treated by the opposing party as if pleaded. Second, consent may be implied if during the trial the party acquiesces or fails to object to the introduction of evidence that relates only to that issue.

9. Pleadings: Proof. Implied consent to trial of an issue not presented by the pleadings may not be found if the opposing party did not recognize that new matters were at issue during the trial. The pleader must demonstrate that the opposing party understood that the evidence in question was introduced to prove new issues.

10. Courts: Pleadings. A court will not imply consent to try a claim merely because evidence relevant to a properly pleaded issue incidentally tends to establish an unpleaded claim.

11. Employer and Employee: Termination of Employment. When employment is not for a definite term and there are no contractual, statutory, or constitutional restrictions upon the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause it chooses.

12. Employment Contracts. Oral representations may, standing alone, constitute a promise sufficient to create contractual terms which can modify the at-will status of an employee.

13. Employment Contracts: Breach of Contract: Proof. In an action for breach of an employment contract, the burden of proving the existence of a contract and all the facts essential to the cause of action is upon the person who asserts the contract.

14. Employment Contracts. The language which forms the basis of an alleged employment contract, whether oral or written, must constitute an offer definite in form which is communicated to the employee, and the offer must be accepted and consideration furnished for its enforceability.

15. Employment Contracts. When a definite offer of employment is communicated to an employee, the employee's retention of employment constitutes acceptance of the offer of a unilateral contract because by continuing to stay on the job although free to leave, the employee supplies the necessary consideration for the job.

16. Employment Contracts: Intent. For a unilateral contract of employment to exist, the employer must manifest a clear intent to make a promise as an offer of employment other than employment at will, and to be bound by it, so as to justify an employee in understanding that a commitment has been made.

17. Employment Contracts: Intent. Whether a proposal is meant to be an offer for a unilateral contract is determined by the outward manifestations of the parties, not by their subjective intentions.

18. Contracts: Estoppel. Recovery on a theory of promissory estoppel is based upon the principle that injustice can be avoided only by enforcement of a promise.

19. Forbearance: Estoppel. Under the doctrine of promissory estoppel, a promise which the promisor should reasonably expect to induce action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

20. Estoppel. Under Nebraska law, the doctrine of promissory estoppel does not require that the promise giving rise to the cause of action must meet the requirements of an offer that would ripen into a contract if accepted by the promisee.

21. Estoppel. There is no requirement of definiteness in an action based upon promissory estoppel.

22. Estoppel. Instead of requiring reasonable definiteness, promissory estoppel requires only that reliance be reasonable and foreseeable.





Nancy R. Wynner and Danielle M. Koonce and Erin R. Harris, Senior Certified Law Students, of DeMars, Gordon, Olson & Zalewski, Lincoln, for appellant.

Nicole B. Theophilus, Michaelle L. Baumert, and Angela M. Lisec, of Blackwell, Sanders, Peper & Martin, L.L.P., Omaha, for appellee.




The plaintiff in this case, Robert Blinn, was fired by his employer, Beatrice Community Hospital and Health Center, Inc. (Beatrice). Blinn sued Beatrice for breach of contract and promissory estoppel. The district court entered summary judgment against Blinn, but the Nebraska Court of Appeals reversed the judgment, based in part on its determination that although certain evidence was not directly relevant to Blinn's breach of contract claim as pleaded, it nonetheless gave rise to a genuine issue of material fact because Blinn's complaint had been constructively amended by implied consent pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 15(b) (rev.2003). Beatrice petitioned for further review, which we granted. For the reasons that follow, we find insufficient evidence in the record to support the Court of Appeals' finding that an issue not raised by the pleadings was tried by implied consent of the parties.


The following facts are taken from Blinn's deposition testimony, received into evidence at the hearing on Beatrice's motion for summary judgment. As pertinent, Blinn testified that in June 2002, he had received a job offer from a Kansas hospital. The Kansas job would have been at a larger hospital and would have offered more responsibility and income potential than Blinn's job of executive director, medical staff development, at Beatrice. It was Blinn's understanding that the Kansas offer was for a position that Blinn could keep until he retired. Blinn was 67 years old at the time he received the offer. Blinn then went to the Beatrice administrator, Larry Emerson, seeking assurances about the permanency of Blinn's position with Beatrice, and drafted a resignation letter he intended to submit to Beatrice unless he received full assurances that Beatrice wanted him to stay. Blinn said:

Well, I went in and asked him if I could visit, and I shut the door in his office and handed him this letter, and he read it, and he told me that he did not want me to leave. He assured me that I was doing a good job, and most importantly, he said, "Bob, we've got at least five more years of work to do." And I left his office feeling fully assured and fully confident that he had no negatives, `cause I gave him total opportunity here to tell me.

I left his office feeling he wanted me there, that he wanted me to stay there and that I should stay there and that we had plenty of work to do and that I could get the job done.

Blinn also asked for Emerson's permission to talk to the chairman of Beatrice's board of directors to seek similar assurances. Blinn testified that the chairman of the board said: "We want you to stay," and I said, "Well, it's really important to me, because whether I stay here or whether I go to [the Kansas hospital], I want it to be the last job I ever have," and [the chairman] assured me he wanted me to stay there and I could stay there until I retired.

However, Blinn was asked to resign by Beatrice in January 2003, and his employment with Beatrice was terminated in February.


Blinn sued Beatrice, alleging several theories of recovery based upon the termination of his employment. Blinn had been hired by Beatrice as an at-will employee, but alleged that his at-will employment status had been modified by oral agreement to a term of employment of "at least five more years," which was not completed before Blinn's termination. The substance of Blinn's petition in the district court was that his at-will employment status had been modified by representations of Beatrice promising Blinn would be employed for a period of at least 5 years, that the representations induced Blinn to forgo another employment opportunity, and that Beatrice then terminated Blinn's employment approximately 6 months after the alleged representations. As pertinent, Blinn alleged theories of recovery based upon breach of an oral contract and promissory...

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