Equity: Estoppel. Although a party can raise
estoppel claims in both legal and equitable actions, estoppel
doctrines have their roots in equity.
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 that the trial court observed the
witnesses and accepted one version of the facts over another.
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 forbearance, and
(3) injustice can only be avoided by enforcing the promise.
___ . A plaintiff claiming promissory estoppel need not show
a promise definite enough to support a unilateral contract,
but it must be definite enough to show that the
plaintiff's reliance on it was reasonable and
Contracts. Usages of trade are strong
evidence of the foreseeability of reliance on a promise.
Estoppel. Evidence that a promisee had
little time to act on the promise shows that the
promisee's reliance was foreseeable.
Contracts: Contractors and Subcontractors. A
general contractor can reasonably rely on a
subcontractor's bid even if the general contractor and
subcontractor contemplate signing a formal subcontract with
additional standard terms after the bidding process ends.
Neb. 216] 8. Contractors and
Subcontractors. A general contractor cannot demand
that a subcontractor agree to unusual and onerous terms while
still holding the subcontractor to its original bid.
. If a subcontractor's bid is so low that a mistake
should be apparent, a general contractor cannot reasonably
rely on the bid.
Estoppel: Damages. No single measure of
damages applies in every promissory estoppel case.
___: ___. The damages that the promisor ought to pay under
promissory estoppel are those that justice requires.
Damages: Proof. A plaintiff's burden is
to prove his or her damages to a reasonable certainty, not
beyond all reasonable doubt.
Election of Remedies. The election of
remedies doctrine is an affirmative defense.
Pleadings. A party must specifically plead
an affirmative defense for the court to consider it.
from the District Court for Douglas County: Joseph S. Troia,
S. Kruse, of Rembolt Ludtke, L.L.P., for appellant.
Gregory C. Scaglione, Kristin M.V. Krueger, and Patrice D.
Ott, of Koley Jessen, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Cassel, Stacy, and Kelch,
Weitz Company, LLC (Weitz), a general contractor, received an
invitation to bid on a planned nursing facility. Hands, Inc.,
doing business as H & S Plumbing and Heating (H&S),
submitted a bid to Weitz for the plumbing work, as well as
the heating, ventilation, and air conditioning (HVAC) parts
of the job. Weitz' bid to the project owner incorporated
the amount of H&S' bid. After the owner awarded the
project to Weitz, H&S refused to honor its bid. Weitz
completed the project with different subcontractors at
trial, Weitz sought to enforce H&S' bid under
promissory estoppel. The court determined that Weitz
reasonably [294 Neb. 217] and foreseeably relied on
H&S' bid, and it therefore estopped H&S from
reneging. The court measured Weitz' damages as the
difference between H&S' bid and the amount Weitz paid
to substitute subcontractors. H&S appeals. We affirm the
judgment and the amount of damages.
Weitz Is Invited to Bid
2011, the Evangelical Lutheran Good Samaritan Society (Good
Samaritan) invited four "prequalified General
Contractors, " including Weitz, to bid on a proposed
nursing facility in Beatrice, Nebraska. Good Samaritan chose
the four prequalified general contractors based on
"prior relationships'' recommendations from its
architect and its own research.
Samaritan is a "big player" in the retirement
living market. Weitz is a "dominant contractor" in
the same market. Alan Kennedy, a Weitz executive, said that
Weitz had sought to build a relationship with Good Samaritan
that would lead to "negotiated work, " meaning that
Good Samaritan would work with Weitz without inviting other
general contractors to bid. Kennedy testified that negotiated
work is "one of the best places to be as a
contractor." When Good Samaritan invited Weitz to bid on
the Beatrice project, Weitz knew of another potential project
with Good Samaritan in Sarpy County, Nebraska.
Samaritan's "Invitation to Bid" stated that it
would not consider bids received after 2 p.m. on August 30,
2011 (bid day). The invitation incorporated certain
"Instructions to Bidders, " which provided that
Good Samaritan and its architect could object to a general
contractor's proposed subcontractors. The invitation
stated that "[n]o bids may be withdrawn for a period of
60 days after opening of bids." If a general contractor
refused to enter into a contract, the instructions provided
to bidders state that the general contractor would forfeit
its bid security as liquidated damages. A bid security is a
bond that "assures the owner that [it] can rely upon the
[294 Neb. 218] bids." But Good Samaritan did not ask for
bid securities, because it prequalified the general
bid day, Weitz assigned "lead person[s]" to the
different categories of work on the project, referred to as
"tickets." The ticket leaders reviewed the project
specifications and created a "scope checklist" that
described the work for each ticket. Weitz prepared scope
checklists because subcontractors sometimes excluded certain
work from their bid.
day, Weitz assembled its people in a conference room to
collect and organize the hundreds of bids from
subcontractors. Ticket leaders called out the bids after
comparing them with the scope checklist. Weitz then added the
numbers to a "bid day spreadsheet."
in the mechanical, engineering, and plumbing fields typically
submit their bids within 15 minutes of the deadline. As a
result, Weitz is often "at the wire turning in [its]
number to an owner." Brian Mahlendorf, a project
executive for Weitz, oversaw Weitz' bid for the Good
Samaritan project. Mahlendorf said that Weitz received
H&S' bid "less than 15 minutes or so"
before the 2 p.m. deadline.
who had been involved in "well over a hundred bids,
" testified that it was "customary for general
contractors to rely on bids submitted by subcontractors"
and that subcontractors submit bids because they want the
job. Mahlendorf, who had more than 20 years of experience in
the construction industry, testified that it was customary
for Weitz to rely on subcontractors' bids, that
subcontractors knew that Weitz relied on their bids, and that
subcontractors submitted bids because they wanted to procure
work. Mahlendorf said it was "very rare" for a
subcontractor to refuse to honor its bid.
H&S Submits a Bid to Weitz
day, H&S sent Weitz a bid for the plumbing and HVAC parts
of the project. H&S' base bid was $2, 430, 600. For
[294 Neb. 219] alternate duct and radiant heating work,
H&S quoted $39, 108 and $52, 500, respectively. H&S
also sent Weitz a "revised" base bid of $2, 417,
000, but Weitz received the revised bid too late to use in
its bid to Good Samaritan.
and Mahlendorf would confirm a subcontractor's bid if it
looked "funny" or "off, " but
H&S' bid did not seem unusual to them. Weitz had
estimated what each ticket would cost based on historical
data, and H&S' bid was above Weitz' estimate.
Mahlendorf was also comfortable with H&S because Weitz
had worked with H&S before. Furthermore, Mahlendorf
assumed that H&S was "actually looking at [its]
number" because it sent Weitz a revised bid. Two of the
other four prequalified general contractors stated that they
planned to use H&S for the plumbing and the HVAC work.
and Mahlendorf testified that the market for construction
services was weak in 2011. Subcontractors were
"aggressively seeking work" and making low bids to
"keep their people busy." Kennedy said that
subcontractors' bids had "ranges that you hadn't
traditionally seen in the marketplace." A difference of
15 percent between the lowest and second-lowest bids was not
Weitz Submits Its Bid to Good Samaritan
said that Weitz used H&S' bid in its own bid to Good
Samaritan. Weitz chose H&S' bid because it included
the "complete scope with the lowest cost."
Mahlendorf said that H&S' bid was
"comprehensive" and that Weitz was "willing to
take it as is." Mahlendorf added H&S' base bid
to Weitz' bid-day spreadsheet for the plumbing and HVAC
day, Weitz sent Good Samaritan a base bid of $9.2 million.
Kennedy and Mahlendorf testified that Weitz' base bid of
$9.2 million included H&S' $2, 430, 600 bid. Weitz
promised Good Samaritan that it would execute a contract for
its base bid if offered the project within 60 days.
Weitz' bid to Good Samaritan included a list of
"Major Sub-Contractors." [294 Neb. 220] For the
plumbing subcontractor, Weitz wrote "HEP or
H&S." For the HVAC subcontractor, Weitz wrote
"Falcon or H&S."
explained that he used a disjunctive list of major
subcontractors because H&S' bid "came in late
enough after this form had been basically ready to send out,
and we had to add [its] name to those two line items."
Mahlendorf said that Weitz did not use the bids of the other
plumbing and HVAC subcontractors, "HEP" and Falcon
Heating and Air Conditioning (Falcon), to reach its $9.2
million base bid. Even if Weitz could have used HEP and
Falcon instead of H&S, Mahlendorf said that Weitz
intended to use H&S.
Samaritan Awards the Project to Weitz
September 1, 2011, Weitz received "early
indications" that Good Samaritan would select its bid.
Weitz received "[f]inal notification" on September
2. Mahlendorf called H&S on September 6 and told the head
of H&S' engineering department that Weitz had won the
bidding and had "carried the H&S number." He
said that he told H&S that "we used [its] number in
our bid, and we were prepared to enter into a contract with
[H&S] and move forward."
after the owner of a project accepted Weitz' bid, Weitz
asked its subcontractors to sign a "subcontract"
establishing the "[e]xact contract terms" between
Weitz and the subcontractor. Weitz had used a similar
subcontract for more than a dozen years. H&S' chief
executive officer testified that in the 10 or 15 times that
H&S had worked with Weitz, Weitz had always accepted
H&S' revisions to the subcontract.
signed a contract with Good Samaritan for the base bid of
$9.2 million plus six additional areas of work not included
in the base bid. The opening paragraph of the contract states
that it was "made and entered" on, and has an
"Effective Date" of, September 7, 2011. But
"Date: 9-19-11" appears below the signature of Good
Neb. 221] Under the contract, Good Samaritan and its
architect had the right to reject Weitz' proposed
subcontractors. But Good Samaritan did not veto H&S or
any of Weitz' other subcontractors. Good Samaritan's
architect could not recall having a "conversation of
significance" about subcontractors. Despite an
owner's reservation of the right to veto subcontractors.
Mahlendorf said that "[i]n the real world, " a
general contractor treats an owner's silence as an
approval and that owners are usually silent.
H&S Reneges on Its Bid
Sieck, Jr., H&S' owner and chief executive officer,
was fishing in Alaska on bid day. Sieck testified that he
told his team of estimators before he left for Alaska not to
send a bid to Weitz. He had "bitter feelings" for
Weitz because it had a "history of bid shopping, "
meaning that Weitz would "get a bid, . . . look at it,
and [it] will go to another contractor to get a lower
number." Sieck said ...