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Fast Ball Sports, LLC v. Metropolitan Entertainment & Convention Authority

Court of Appeals of Nebraska

July 2, 2013

Fast Ball Sports, LLC, appellant and cross-appellee,
Metropolitan Entertainment & Convention Authority, appellee and cross-appellant.

1. Summary Judgment Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts, or as to the ultimate inferences that may be drawn from those 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 is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts. A claim that the parties created an enforceable contract generally presents an action at law.

4. Judgments: Appeal and Error. An appellate court reviews questions of law independently of the conclusion reached by the lower court.

5. Breach of Contract: Proof. To recover for breach of contract, a plaintiff must prove that a defendant made a promise, breached the promise, and caused the plaintiff damage and that any conditions precedent were satisfied.

6. Contracts: Proof. To establish an express contract, a party must prove a definite proposal and an unconditional and absolute acceptance of that proposal.

7. Contracts: Words and Phrases. An absolute proposal or offer is an expression of willingness to enter into an agreement with another, made in such a way that the other party is justified in believing that its acceptance is invited and will result in a contract.

8. Contracts. A communication intended only as preliminary negotiation or an expression of willingness to negotiate is not an offer.

9. . When a party subjects a contract to board approval, there is no contract or offer until the board approves.

10. Contracts: Waiver. In Nebraska, under the prevention doctrine, if a party prevents the occurrence of a condition necessary for the other party to perform an oral or written agreement, a court may waive the condition.

11. Contracts. The prevention doctrine does not apply to a condition precedent for the formation of a contract.

12. Fraud. The elements of fraud are (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that the plaintiff should rely upon it: (5) that the plaintiff reasonably did so rely; and (6) that he or she suffered damage as a result.

13. Fraud cannot ordinarily be predicated on unfulfilled promises or statements as to future events.

14. Contracts: Fraud: Evidence. If there is no signed contract, a party seeking to overcome the statute of frauds must proffer a writing, signed by the opposing party, detailing the terms and conditions of their promises. The writing can be any written evidence of an oral contract so long as the writing contains the essential terms of the contract.

15. __: __: __. The written evidence necessary to overcome the statute of frauds does not need to be contained in a single document or communication, but if the terms of the contract can be collected from the correspondence of the parties, it will be a sufficient memorandum within the meaning of the statute of frauds.

16. Contracts: Estoppel. Under the doctrine of promissory estoppel, a court may enforce a promise made by a party if (1) that party should reasonably expect its promise to induce another party's action or forbearance, (2) its promise does induce action or forbearance, and (3) the only way to avoid injustice is to enforce the promise.

17. Contracts: Fraud: Estoppel. Promissory estoppel is not an exception to the statute of frauds; nor can it be used to circumvent the statute of frauds.

18. __: __: __. Only where a party to a written contract within the statute of frauds induces another to waive some provision upon which he is entitled to insist and thereby change his position to his disadvantage because of that party's inducement will the inducing party be estopped to claim that such oral modification is invalid because not in writing.

19. Equity: Contracts: Fraud: Partial Performance. A court will enforce in equity an oral contract partly performed, even if the contract falls within the statute of frauds.

20. Contracts: Fraud: Partial Performance. The justification of the partial performance exception to the statute of frauds is that partial performance is good evidence for believing an agreement exists.

21. Contracts: Fraud. Ordinary business preparations are not sufficient to remove an alleged contract from the statute of frauds.

22. Contracts: Partial Performance. Preliminary acts or mere preparations to act do not constitute partial performance.

23. Trial: Appeal and Error. An appellate court reviews a trial court's determination of a request for sanctions for abuse of discretion.

24. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.

Jason M. Bruno, of Sherrets, Bruno & Vogt, L.L.C, for appellant.

Mark C. Laughlin and Ryan M. Sewell, of Fraser Stryker, P.C, L.L.O., for appellee.

Sievers and Riedmann, Judges.

Riedmann, Judge.


Fast Ball Sports, LLC (FBS), appeals an order of the district court for Douglas County denying it summary judgment and granting summary judgment in favor of Metropolitan Entertainment & Convention Authority (MECA). MECA cross-appeals the trial court's denial of dismissal of the suit as a sanction. The trial court found that MECA and FBS did not form a contract and that FBS was not entitled to remedies under theories of promissory estoppel or fraud. We agree. We further determine that the trial court did not abuse its discretion in denying the requested sanction and affirm its ruling.


FBS is a corporation that sought to acquire a professional baseball franchise to play baseball in Omaha, Nebraska, at TD Ameritrade Park. MECA is a nonprofit group that manages and operates TD Ameritrade Park.

MECA and FBS began negotiating in August 2009 with the help of a consulting group, the Pierce Group, which acted as a "go between." In November, Roger Dixon, MECAs chief executive officer, prepared and sent a cover letter and attached "Memorandum of Understanding" (MOU) to the Pierce Group and to FBS' chief executive officer. The cover letter explained that the MOU provides "principal terms" that would be used to prepare a "definitive Lease" if agreed to by both parties. The cover letter stated that any lease agreement must be "submitted for approval to the MECA Board and thereafter mutually executed." Both parties agreed [21 Neb.App. 11] that the letter and the MOU provided the framework for the negotiations.

The parties did not have contact again until May 2010, when FBS requested to meet with Dixon to continue negotiations. Dixon responded that MECA was involved in negotiations with another group and would resume discussions with FBS if those other negotiations failed.

In August 2010, MECA and FBS resumed discussions. At that time, Dixon advised FBS in writing that MECA would make one last attempt at negotiating a lease, but that it needed more information about the individuals in ...

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