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In re Estate of Ryan

Supreme Court of Nebraska

April 5, 2019

In re Estate of Wayne L. Ryan, deceased.
Steven Ryan, Personal Representative of the Estate of Wayne L. Ryan, deceased, appellee. Shadow Ridge Limited Partnership, a Nebraska limited partnership, appellant,

         1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a trial court's order granting a motion to dismiss de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Motions to Dismiss: Pleadings. A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the claim's substantive merits.

         3. ___: ___.To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face.

         4. Decedents' Estates: Claims: Time. The Nebraska Probate Code requires that all claims, whether absolute or contingent, be presented within certain time periods or be barred against the estate.

         5. Actions: Charities: Contracts: Consideration. An action on a note given to a church, college, or other like institution, upon the faith of which money has been expended or obligations incurred, generally cannot be successfully defended on the ground of lack of consideration.

         6. Charities: Contracts: Intent. Charitable subscriptions often serve the public interest by enabling projects which otherwise could not occur and are thus construed, if reasonably possible, to support recovery.

         7. 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.

         8. Forbearance: Estoppel. Under the doctrine of promissory estoppel, a promise which the promisor should reasonably expect to induce action [302 Neb. 822] or forbearance is binding if injustice can be avoided only by enforcement of the promise.

         9. 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.

          Appeal from the County Court for Douglas County: Lawrence E. Barrett, Judge.

          Thomas M. Locher and Kevin J. Dostal, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellant.

          Marnie A. Jensen and Kamron T.M. Hasan, of Husch Blackwell, L.L.P., and William J. Lindsay, Jr., and John A. Svoboda, of Gross &Welch, PC, L.L.O., for appellee.

          Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.


         In a decedent's probate proceeding, a golf course partnership sought to enforce a claim based upon an unfulfilled pledge agreement, relying alternatively upon contract and promissory estoppel theories. The probate court dismissed both theories for failure to state a claim. Because the partnership is not a charitable, educational, or like institution, it failed to state a claim based on contract. But because it alleged having expended substantial funds in reliance upon the pledge- which must be accepted as true-it stated a claim based upon promissory estoppel. We affirm in part, and in part reverse and remand for further proceedings.


         Pledge Agreement In 2016, Wayne L. Ryan entered into a written "Pledge Agreement" with Shadow Ridge Limited Partnership, a [302 Neb. 823] Nebraska limited partnership (Shadow Ridge). The signature block identified Ryan as "Donor" and Shadow Ridge as "Donee." According to the agreement, Ryan would make a total gift of $20 million so that Shadow Ridge could make improvements to the golf course it operated. In the agreement. Ryan stated that he had resided along the golf course for 23 years and had "great pride and affection" for it. His intent in providing funds, as stated in the agreement, was to "develop the golf course into one of the top-rated golf courses in the entire Midwest" and to make it "become a significant asset to the City of Omaha in much the same manner as the Omaha Henry Doorly Zoo, the TD Ameritrade Ball Park and other similar civic improvements which attract people to visit and reside in the City of Omaha."

         According to the pledge agreement, "[Ryan] has discussed a number of improvements which [Shadow Ridge] would like to make to the Shadow Ridge Golf Course in order to provide the underwriting that is appropriate to meet the goals and objectives generally set forth in this Pledge Agreement." The improvements were set forth in an attachment to the pledge agreement and were incorporated by reference. The 11-page attachment detailed $12.5 million in capital improvements. Because recognizing Ryan's contributions would "be paramount to this endeavor," Shadow Ridge would construct and name a golf performance center after Ryan and place a bronze statue in Ryan's honor at the first tee.

         The pledge agreement stated that "in consideration of the foregoing Recitals and the mutual promises hereinafter set forth, [Ryan] hereby agrees to provide the gratuitous transfers hereinafter described . . ., subject to the conditions set forth in paragraph 3 below." Paragraph 3, titled "Conditions," stated that the intended transfers were "specifically subject to" two conditions. One condition was the resolution of specified litigation in Sarpy County, Nebraska, and the eventual sale of the stock or assets of "Streck, Inc.," to an independent third party for fair value. The other condition was the [302 Neb. 824] agreement of Shadow Ridge "to pay the anticipated transfer taxes attributable to the transfers contemplated by this Pledge Agreement (gift taxes reportable on IRS Forms 709) so that the practical result of the intended transfers is that they will be properly characterized as a net gift for federal gift tax purposes."

         Probate Proceedings

         Ryan died in 2017. Shadow Ridge filed a statement of claim against the estate of Wayne L. Ryan (estate) for the $20 million pledge agreement. The claim disclosed that payment was contingent on the resolution of the Sarpy County case. The estate denied the claim.

         Shadow Ridge filed a petition for allowance of claim and attached the pledge agreement. According to the petition. Ryan "enjoyed 'Founding Membership' status with Shadow Ridge at the time of the execution of the Pledge Agreement.'' Shadow Ridge alleged that in reliance upon Ryan's pledge, it had incurred expenses in beginning improvements specified in the agreement. It claimed that the pledge agreement was an enforceable obligation that was binding against the estate. Alternatively, Shadow Ridge alleged that the petition should be granted under a promissory estoppel theory. Shadow Ridge conceded that the contingency in the pledge agreement concerning the Sarpy County case had not occurred, but asserted that it would likely occur prior to the distribution of the estate.


         The estate moved to dismiss the petition for failure to state a claim. The probate court thereafter dismissed the petition with prejudice, finding that the petition failed to state a claim upon which relief may be granted and that no future amendments to the petition would be successful. The court's order stated: "The conclusion of the . . . litigation in Sarpy County is a prerequisite before the intended gifts could be made by . . . Ryan. [He] has died and no gifts were made to [Shadow Ridge] before his death."

         Shadow Ridge filed a timely appeal, and we granted the estate's petition to bypass review by the Nebraska Court of Appeals.


         Shadow Ridge assigns that the court erred in dismissing its contract claim based upon the pledge agreement and in dismissing its ...

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