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Appeals’ determination that Abdullah’s remaining ineffective 

assistance of trial counsel claims were alleged with insufficient specificity and thus lacked “merit.” We find, instead, 

that the merits of these arguments cannot be reviewed upon 

the trial record. To that extent, the Court of Appeals’ decision 

is reversed.

Affirmed in part, and in part rever

Heavican, C.J., not participatin

deNourie & Yost Homes, LLC, a Nebraska li

liability company, appellant, v. Joe Frost

Amy Frost, husband and wife, and Se

State Bank, doing business as Dund

a Nebraska corporation, appellees

___ N.W.2d ___

Filed September 26, 2014. No. S-13-656.

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. ____: ____. 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 
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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. ____. 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. ____. A party’s mere silence about its financial condition cannot constitute a 

misrepresentation unless the other party asks for the information.

10. ____. 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. ____. 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.
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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. ____: ____. 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. ____: ____. 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.

Appeal from the District Court for Douglas County: Gar

B. Randall, Judge. Affirmed in part, and in part reversed a

remanded for further proceedings.

Jerrold L. Strasheim for appellant.

Christopher J. Tjaden, Michael J. Whaley, and Adam J. 

Wachal, of Gross & Welch, P.C., L.L.O., for appellee Security 

State Bank.
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Kristopher J. Covi, of McGrath, North, Mullin & Kratz, 

P.C., L.L.O., for appellees Joe Frost and Amy Frost.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, an

Connolly,

I. SUMMARY

deNourie & Yost Homes, LLC (D&Y), contracted with Joe 

Frost (Frost) and Amy Frost to finish construction on a house 

the Frosts had started with another builder but had discontinued 11

⁄2 years earlier. The Frosts defaulted on progress payments after D&Y started work. D&Y eventually sued the Frosts 

and Security State Bank, doing business as Dundee Bank (the 

bank). It claimed, in part, that at different times, the defendants 

falsely represented or concealed material information about 

whether the Frosts could pay for the work.

In D&Y’s operative complaint, it alleged five claims against 

the Frosts and the bank: (1) breach of contract against the 

Frosts; (2) fraud, concealment, and nondisclosure against the 

Frosts for representing that they could pay for D&Y’s work 

when they were insolvent and could not perform their obligations under the contract; (3) civil conspiracy against Frost and 

the bank for falsely creating the appearance, after D&Y had 

stopped work, that the Frosts were solvent, to induce D&Y to 

resume work; (4) equitable estoppel against the bank, as guarantor; and (5) promissory estoppel against the bank to enforce 

its promise to pay funds directly to D&Y for its services.

The district court sustained the defendants’ motions for summary judgment on the fraud and conspiracy claims. In April 

2012, before the bench trial began on the remaining claims, the 

Frosts confessed judgment on D&Y’s breach of contract claim. 

And after the bench trial, the court ruled for the defendants on 

D&Y’s equitable and promissory estoppel claims. D&Y assigns 

error to all the court’s rulings.

We will explain our holdings with some specificity in the 

following pages, but briefly stated, we hold as follows:

• The court erred in granting summary judgment to the Frosts

on D&Y’s fraud claim because genuine issues of material 
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fact existed whether the Frosts had intentionally made false 

or misleading representations that they could pay for 

D&Y’s work.

• The court erred in granting summary judgment to the bank

on D&Y’s civil conspiracy claim because the complaint was 

sufficient to put the bank on notice that the claim rested on 

the bank’s alleged conspiracy to commit fraud.

• The court erred in granting summary judgment to the Frosts

on D&Y’s civil conspiracy claim because its ruling rested 

on its incorrect judgment that D&Y’s fraud claim failed as 

a matter of law and because it failed to consider that D&Y 

alleged two separate instances of fraudulent conduct.

• In the bench trial, the court did not err in finding that D&Y

had failed to prove by clear and convincing evidence that the 

bank promised to finance D&Y’s construction contract and to 

pay these funds directly to D&Y.

But the court’s factual findings in the bench trial do not 

preclude D&Y’s proof of the same facts for its fraud claims 

because a preponderance standard of proof governs those 

claims, instead of the clear and convincing standard that 

applied to the claims in the bench trial. We affirm in part and 

reverse in part the judgment and remand the cause to the court 

to conduct further proceedings consistent with this opinion.

II. BACKGROUND

1. Historical Fac

In September 2004, the Frosts obtained two loans for a new 

home: a $133,000 loan to purchase a lot and a $712,500 construction loan. The construction stopped in December 2005. 

The bank was not the lender for either loan. But in 2007, the 

bank made several business loans to the Frosts. The Frosts 

used these loans to acquire and renovate houses, which they 

then sold or rented.

In April 2007, the Frosts contracted with D&Y to complete 

their house. The previous builder had completed the exterior 

of the house, but not the interior. Jon deNourie and Shane 

Yost are the principals of D&Y. The “Recitals” section of the 

contract stated that the original construction had stopped in 

December 2005 “due to builder default.” The contract made 
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the Frosts the general contractor. They were to pay D&Y for 

materials and labor and directly pay subcontractors. D&Y 

was the project manager. It would obtain subcontractors and 

approve their invoices for payment by the Frosts and also 

furnish materials. D&Y would bill the Frosts for outstanding 

invoices. The Frosts agreed to pay $51,280 to D&Y for management services. The parties estimated construction costs to 

be $274,350. The contract also required the Frosts to make 

monthly progress payments during construction.

Yost testified in his deposition that before D&Y signed 

the contract, Frost told him that he had sued the previous 

builder but that they had settled the case and there were no 

liens against the property. Yost also testified Frost told him 

that $200,000 from the original construction loan was available for the work and that he could easily obtain an additional 

$75,000. The contract’s recitals stated that the Frosts had 

“made arrangements for financing” to complete construction 

of the house.

But in his deposition, Yost said that sometime in 2008, 

after the Frosts defaulted on D&Y’s contract, he learned that 

the first builder had sued the Frosts and that there were liens 

against the property. The record from the bench trial showed 

that the first builder had filed a lien against the property in 

April 2005 because the Frosts had defaulted on their payments. The builder had sought a $315,567.52 judgment and 

a decree of foreclosure. Yost said that D&Y would not have 

contracted to do the work if it had known that the previous 

builder had sued the Frosts. Yost stated that because of Frost’s 

representations, D&Y did not perform independent research on 

the property.

After D&Y sent the first bill to the Frosts in May 2007, 

they defaulted. They did not pay the entire bill, and they 

wrote a check with insufficient funds to a subcontractor. 

After that, D&Y required the Frosts to pay the money they 

owed directly to D&Y so it could pay its subcontractors. By 

August 1, the Frosts were substantially behind in payments. 

On August 20, Frost told deNourie and Yost that he had not 

obtained financing from his construction lender but that he 

was meeting with the president of the bank to obtain funding. 
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In early October, D&Y stopped work because the Frosts had 

failed to pay the amount owed or to provide a commitment 

letter from a lender.

At some point, D&Y informed Frost that it intended to 

file a lien. After that, the parties attempted to negotiate. At 

a November 1, 2007, meeting, Frost told deNourie and Yost 

that the bank would be providing funding for the construction. 

Frost told Yost that although he still had $200,000 left from 

the construction loan, he had to get the loan extended to make 

a draw against it. On November 14, Frost told D&Y that he 

had received an extension for the construction loan and wrote 

checks to D&Y for about $34,000. D&Y refused to resume 

work because the Frosts owed considerably more.

On November 27, 2007, Amy Frost asked Yost, via e-mail, 

to stop e-mailing her about the money the Frosts owed. She 

stated that she had only $800 in her checking account, that 

the Frosts had drained their retirement savings, that they owed 

$60,000 to a lawyer, and that she was worried whether they 

could pay their mortgage payments and subcontractors. On 

November 30, D&Y filed a construction lien against the property for $208,896.41. The Frosts had paid a little over $108,000 

toward the total contract price.

On December 10, 2007, Jeff Royal, the president of the 

bank, sent the following e-mail to Frost, which Frost then forwarded to Yost on December 11:

Per our conversation - please provide this e-mail to 

your builder, [D&Y], that you have funds available to 

complete the renovation of your property . . . .

If anyone from [D&Y] needs any additional information on this e-mail please have them call me directly . . . .

deNourie believed that this e-mail showed the funds would 

come from the bank because Royal could not have been referring to funding from any other lender. From his experience 

with construction loans, deNourie believed that Royal could 

not have made this statement without knowing the payments 

that had been made and the amount of money needed to 

complete the project. According to Yost, he called Royal on 

December 11, 2007, and said that D&Y was considering foreclosure and would continue the work only if the bank would 
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pay the amount of its lien directly to D&Y. Yost said that during this call and later calls, Royal assured him that the bank 

would provide the funding and a letter detailing the terms. Yost 

testified that on December 11, at Royal’s request, he sent an 

e-mail to Royal to confirm their conversation:

As per our discussion, the intent of the requested letter 

is to document the exact funds necessary to complete the 

Frost Home . . . .

The key to this is not only total funds to be paid out, 

but also the timing of these funds to be distributed to 

[D&Y]. This letter will enable us to work w/ the subs in 

when and how they will get paid.

Thus, the following items will help in this purpose:

1) The amount to be paid directly to [D&Y] will be 

$208,896.41.

2) The above funds will be paid directly to [D&Y] 

upon [the Frosts’] move-in date, refinancing/closing of 

the home, or Certificate of Occupancy . . . whichever 

comes first.

Yost said that he then called Royal, who told him that D&Y 

should proceed with construction because the bank would provide the necessary funding. Yost said that D&Y relied on this 

oral commitment from Royal and wanted a confirmation letter 

only to assure its subcontractors that funding for their work 

was secure.

D&Y resumed work on December 12, 2007, and paid a significant amount to subcontractors. Yost said that on December 

13, 17, and 21, he again spoke with Royal, who assured him 

that funding would be available and that the bank would pay 

the funds directly to D&Y. Yost said that during these calls, 

Royal repeatedly assured him that the bank would send him 

a written confirmation letter, but Royal never sent the letter. 

On December 19, Yost e-mailed Royal to ask whether Royal 

had written the letter. The record shows no e-mail response 

from Royal until January 3, 2008. According to Yost, during 

a telephone conversation on December 31, 2007, Royal said 

that he had asked Frost to contact the lot lender about obtaining the construction loan because it held the first mortgage 

lien against the property, but that the bank would provide 
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the funding if the lot lender did not. Yost testified that until 

December 31, D&Y never heard about the lot lender’s possibly 

loaning the Frosts money.

Royal’s testimony conflicted with the testimony of deNourie 

and Yost. Royal admitted that on the same day he sent the 

December 10, 2007, e-mail, Frost had told him he might 

need money to pay his builders, and that he sent the e-mail at 

Frost’s request. And Royal admitted that he had not verified 

Frost’s available cash or credit worthiness. But Royal said he 

did not have a specific plan to provide funds to D&Y when he 

sent the e-mail. He testified that the reason he stated Frost had 

funds available was because (1) he knew Frost had recently 

generated income from real estate transactions on projects the 

bank had financed and (2) Frost had told him that Amy Frost’s 

father would make funds available to them for the house. 

Although Royal had not spoken to Amy Frost’s father when 

he sent the e-mail, he said he was not committing the bank to 

loan the Frosts money by stating that they had funds available 

because he knew that Amy Frost’s father wanted to help them. 

Royal said he was simply committed to helping the Frosts 

come up with the money.

Regarding his conversations with Yost, Royal said he told 

Yost that Frost had mentioned getting money from the lot 

lender so that he would not need help from Royal. But 

deNourie testified that D&Y would not have resumed work 

if Royal had said that Frost was seeking a loan from the lot 

lender. Royal denied telling Yost that the bank would directly 

pay D&Y the amount of its lien. Royal could not recall having 

a telephone conversation with Yost about an agreement with 

the bank on December 11 or 19, 2007. Royal said he never 

sent a written confirmation to provide funding because the 

Frosts never applied for a loan.

On January 3, 2008, Royal replied to Yost’s December 19, 

2007, e-mail asking whether Royal had written a confirmation letter yet. In Royal’s January 3, 2008, response, he asked 

whether Yost had ever connected with Frost on “this.” Yost 

testified that he understood “this” to refer to a possible loan 

from the lot lender. Yost responded to Royal that Frost had 
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not returned his calls. He asked Royal to contact Frost and 

find out whether Frost was going to “refinance” through the 

lot lender or the bank. Yost said D&Y would like to have 

the financing resolved because D&Y was close to finishing 

the house.

On January 4, 2008, Yost sent an e-mail to Frost stating 

that Royal was waiting to hear from Frost about the financing. He asked Frost to verify Royal’s statement that Frost was 

seeking a loan from the lot lender but that otherwise Royal 

would “set it up” at the bank. Frost did not respond. Royal 

testified that by “set it up,” he meant that he would “be open 

to working with the Frosts and their overall financial picture to 

make funds available for [D&Y] to the extent that [the Frosts] 

wanted them.”

On January 10, 2008, Royal sent an e-mail to Yost stating 

that Frost had said he was “in good shape” with the lot lender 

and asking Yost to confirm that information. Neither Frost 

nor Royal replied to Yost’s later inquiries about the financing. On January 30, the house was inspected and approved 

for occupancy.

On March 3, 2008, Frost told Yost that the lot lender would 

not provide a loan to the Frosts but that he was working with 

the bank to obtain the money. Royal acknowledged that after 

the lot lender refused to loan the Frosts money, he spoke to 

Frost about possibly loaning money to Amy Frost’s father, 

who would provide the money to the Frosts to pay D&Y. 

Royal said to settle the dispute with D&Y, the bank loaned 

$150,000 to Amy Frost’s father, who made the money available to the Frosts. The Frosts received this money, but Frost 

then claimed that D&Y’s work was inferior and did not pay 

anything to D&Y. Royal claimed that he did not know why the 

Frosts had been turned down for a loan by the lot lender and 

did not ask.

On March 18, 2008, Royal informed deNourie and Yost 

that the bank could not loan money to the Frosts because the 

bank had purchased Frost’s mortgage company and Frost was 

now the bank’s employee. Yost said that this meeting was the 

first time Royal had notified D&Y that the bank would not 
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provide funding for the construction. deNourie said that D&Y 

did not learn about the bank’s loan to Amy Frost’s father until 

November 2008, when it took Royal’s deposition.

In April 2008, D&Y sued the Frosts and the bank. At some 

point, the house was foreclosed. In December 2008, the Frosts 

filed for chapter 7 bankruptcy. D&Y sought a determination in 

bankruptcy court that the debt to it was nondischargable.1 The 

bankruptcy court stayed that action pending the outcome of 

this litigation.

2. Procedural Histo

In 2011, the Frosts and the bank moved for summary judgment. The court granted the motions in part. The court determined that the Frosts had no duty to disclose their financial 

condition because D&Y had not asked for this information. It 

found that the Frosts made no misleading representations about 

their financial condition and that D&Y had instead assumed 

that they were solvent. It granted summary judgment to the 

Frosts on D&Y’s fraud claim. Because it found no evidence 

of fraud, it concluded that the civil conspiracy claim against 

the Frosts failed. It further concluded that the conspiracy claim 

failed against the bank because D&Y had not specifically 

alleged a separate fraud claim against the bank. It granted summary judgment to the Frosts and the bank on the conspiracy 

claim. But it denied summary judgment on D&Y’s equitable 

estoppel and promissory estoppel claims.

In April 2013, at the start of the bench trial, the Frosts 

confessed judgment for $245,000 on D&Y’s breach of contract claim. After the trial, the court entered judgment against 

D&Y on its remaining claims of equitable and promissory estoppel.

III. ASSIGNMENTS OF ERROR

D&Y assigns, reordered and somewhat reduced, that the 

court erred in (1) granting partial summary judgment to the 

defendants and failing to rule that the defendants did not 

meet their burden of proof for summary judgment; (2) failing 

1 See 11 U.S.C. § 523(a)(2) (2006).
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to view the summary judgment evidence in the light most 

favorable to D&Y and to give it the benefit of all reasonable 

inferences; (3) failing to rule on D&Y’s claims of fraudulent 

representations and promises at the summary judgment stage; 

(4) ruling that the Frosts had no duty to disclose their financial 

condition despite evidence that they did have this duty; (5) 

failing to rule on objections to evidence taken under advisement; (6) failing to find that D&Y’s reliance on the bank’s 

promise was reasonable and in good faith; (7) failing to find 

that D&Y had proved all the elements of its claims for promissory estoppel and equitable estoppel; and (8) failing to award 

D&Y $208,896.41, plus prejudgment interest.

IV. STANDARD OF REVIEW

[1,2] We 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

 In reviewing a summary judgment, we view the evidence in the light 

most favorable to the party against whom the judgment was 

granted, and give that party the benefit of all reasonable inferences deducible from the evidence.3

[3,4] Regarding the trial court’s judgment after the bench 

trial on D&Y’s equitable and promissory estoppel claims, 

the traditional distinction between legal and equitable claims 

remains relevant to our review of the court’s judgment.4

Although a party can raise estoppel claims in both legal 

and equitable actions, estoppel doctrines have their roots in 

equity.5 In reviewing judgments and orders disposing of claims 

2 SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 N.W.2d 745 (2014).

3 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).

4 See Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 493 

(2014).

5 See, D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010); 

Rauscher v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844 (2005); 1 Dan 

B. Dobbs, Dobbs Law of Remedies § 2.3(5) (2d ed. 1993); 28 Am. Jur. 2d 

Estoppel and Waiver §§ 1 and 34 (2011).
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sounding in equity, we decide factual questions de novo on the 

record and reach independent conclusions on questions of fact 

and law.6 But when credible evidence is in conflict on material 

issues of fact, we consider and may give weight to the fact the 

trial court observed the witnesses and accepted one version of 

the facts over another.7

V. ANALYSIS

1. Court Incorrectly Granted the De

Summary Judgment on D&Y’s 

for Fraud and Civil Consp

(a) Questions of Fact Precluded Summary 

Judgment for the Frosts on 

D&Y’s Fraud Claim

In D&Y’s fraud claim against the Frosts, it alleged that (1) 

they induced D&Y to enter the contract by falsely representing 

their ability to pay for D&Y’s work and (2) they concealed 

that they were insolvent and lacked the resources to fulfill 

their obligations under the contract. As noted, the court found 

that the Frosts had no duty to disclose their financial condition 

because the facts show none of the triggering circumstances 

requiring disclosure of material facts under the Restatement 

(Second) of Torts § 551.8

[5] Under § 551 of the Restatement, which we have adopted,9

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 

6 See, Neb. Rev. Stat. § 25-1925 (Reissue 2008); Christiansen, supra note 

4; American Family Mut. Ins. Co. v. Regent Ins. Co., 288 Neb. 25, 846 

N.W.2d 170 (2014); In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 

868 (2012).

7 Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013).

8 Restatement (Second) of Torts § 551 (1977).

9 See Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110 

(2000), overruled in part on other grounds, Knights of Columbus Council 

3152 v. KFS BD, Inc., 280 Neb. 904, 791 N.W.2d 317 (2010).
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disclose the fact at issue.10 Whether a duty to disclose exists 

is determined by all the circumstances, but § 551(2) sets out 

“several situations which have been consistently recognized 

as creating a duty to disclose.”11 The court found that none of 

these circumstances were present.

D&Y contends that the court erred because it overlooked 

D&Y’s claims and evidence of fraudulent misrepresentations 

that induced it to enter into the contract. D&Y argues that its 

evidence showed there were genuine issues of fact whether the 

Frosts had falsely represented the following facts:

• The Frosts’ first builder defaulted, and they had sued the

builder (when the first builder had sued them for defaulting).

• No liens had been filed against the property (when contractors had filed liens against it).

• They had $200,000 from the original construction loan (when

they had defaulted on this loan).

• They could easily obtain cash or financing for an additional

$75,000 toward the contract price.

The Frosts counter that they had no duty to disclose their 

financial condition because they made no ambiguous or misleading statements about their finances. They also contend 

that whether they were insolvent was immaterial to the transaction because the construction was to be funded by thirdparty financing. Finally, they contend that D&Y did not rely 

on their statements.

But to support their nonreliance argument, the Frosts cherrypick statements from deNourie’s depositions. deNourie stated 

that he could not recall “specifics” about his conversations 

with Frost before the parties contracted for the work. And 

the Frosts point to Yost’s deposition statement that he and 

deNourie had assumed the Frosts were solvent because Frost 

owned a mortgage company that was located in a building that 

he owned. We disagree that there were no genuine issues of 

fact regarding these issues.

10 See Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb. 

997, 792 N.W.2d 484 (2011).

11 See Streeks, supra note 9, 258 Neb. at 590, 605 N.W.2d at 118.
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[6] Initially, we point out that in addition to alleging fraudulent concealment, D&Y alleged the Frosts made fraudulent 

misrepresentations. 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.12

[7] But misleading half-truths can also 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.’” Consistent with imposing liability for half-truths, 

the Restatement (Second) of Torts § 527 provides that an 

ambiguous statement is fraudulent if made with the intent 

that it be understood in its false sense or with reckless 

disregard as to how it will be understood.13

[8] We have recognized an overlap between fraudulent 

concealment and fraudulent misrepresentation claims. If a 

defendant’s partial or ambiguous representation is materially 

misleading, then under § 551(2)(b) of the Restatement, the 

defendant has a duty to disclose known facts that are necessary 

to prevent the representation from being misleading.14

It is true that the record shows Yost admitted to making some 

assumptions about Frost’s solvency based on the appearance 

of a successful mortgage business that he owned. The court 

apparently relied on Yost’s statement in sustaining the Frosts’ 

12 See Knights of Columbus Council 3152, supra note 9.

13 Id. at 922-23, 791 N.W.2d at 331-32.

14 See Knights of Columbus Council 3152, supra note 9.
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motion for summary judgment. But the court erred in implicitly 

concluding that because of D&Y’s assumptions, it could not 

have relied upon or been misled by Frost’s positive statements 

of facts about the Frosts’ ability to pay for D&Y’s work. The 

Frosts’ house had not been worked on for 11⁄2 years when they 

asked D&Y to finish the construction. So a fact finder could 

reasonably conclude that deNourie and Yost would have been 

reluctant to contract for the work without some explanation for 

why the first builder stopped its work—even if they generally 

believed Frost ran a successful business. Under these circumstances, a fact finder could determine that deNourie and Yost’s 

assumptions about Frost’s solvency made them more likely to 

believe Frost’s statements, while still finding that they had in 

fact relied on them.

[9] And we recognize that a party’s mere silence about 

its financial condition cannot constitute a misrepresentation 

unless the other party asks for the information.15 But here, the 

Frosts voluntarily made statements about their ability to pay 

for D&Y’s work and they had to do so in a manner that was 

not false or materially misleading. Giving D&Y the benefit of 

all reasonable inferences, the record supports its claim that the 

Frosts made fraudulent misrepresentations or concealed material information that they had a duty to disclose.

In his deposition, deNourie stated that Frost had told him 

before executing the contract that no liens against the property 

existed. Yost testified that before entering the contract, Frost 

told him that he had sued the previous builder but that the 

litigation had been resolved and there were no liens against the 

property. Yost said that Frost told him that he had $200,000 

left from the original construction loan and that he could easily 

obtain an additional $75,000 in cash or financing. Moreover, 

the contract itself stated that the original construction had 

stopped in December 2005 “due to builder default” and that 

the Frosts had arranged financing to complete the construction 

of their house.

15 See, Moyer v. Richardson Drug Co., 70 Neb. 190, 97 N.W. 244 (1903); 37 

Am. Jur. 2d Fraud and Deceit § 223 (2013).
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So this is not a case in which a party to a contract promised to seek financing or was merely silent about its ability to 

fulfill its obligations. If a fact finder believed deNourie and 

Yost’s evidence, then Frost represented that he had $200,000 

left from a construction loan when he had defaulted on the first 

construction contract funded by the loan and been sued by the 

builder. And if the Frosts had defaulted on their original construction contract, a fact finder could conclude that the Frosts 

knew their ability to obtain further draws against the construction loan was likely compromised. So D&Y’s evidence was 

sufficient to raise an issue of fact whether Frost knew his 

representation about funds being available from the original 

construction loan to pay for D&Y’s work was false or materially misleading.

In some circumstances, Frost’s statement that he could easily obtain cash or financing for an additional $75,000 toward 

the contract price would amount to an opinion of his abilities. But here, a fact finder could conclude that Frost knew 

his statement was false when made or made recklessly to 

induce D&Y’s reliance on it without knowledge that it was 

true. The same facts that undermine his representation about 

funding availability from the original construction loan support an inference that the Frosts knew in April 2007 that they 

could not easily obtain cash or financing for an additional 

$75,000. The evidence supports a finding that the Frosts had 

defaulted on the original construction contract and that soon 

after D&Y’s work began, the Frosts defaulted on required 

payments during construction. In sum, the court failed to 

consider whether a fact finder could conclude that Frost made 

intentionally false or misleading statements intended to dispel 

any concerns D&Y had about the unfinished construction and 

the Frosts’ ability to pay for the work to induce D&Y to enter 

the contract.

[10,11] The Frosts also argue that D&Y failed to exercise 

reasonable diligence to ask for financial statements showing the Frosts’ ability to pay for its work. But this argument 

assumes that the Frosts did not make fraudulent statements 

about their ability to pay for D&Y’s work. If D&Y proves that 

they did, then the applicable rule is that the recipient of an 
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intentionally false statement of material fact may justifiably 

rely on the statement if the recipient would have to investigate to discover the truth.16 It is true that under Nebraska 

law, the recipient of a representation must exercise ordinary 

prudence to ascertain its truth when the means of discovering 

the truth is in his or her hands.17 But in claims of intentional 

misrepresentations, we have applied this rule only in limited 

circumstances: (1) when a property’s defects would be obvious to a potential buyer upon inspection18; (2) when the seller 

of a business gave the buyer all the expense and sales records 

to a buyer to ascertain the accuracy of the seller’s statements 

regarding profits, did not vouch for his estimates, and recommended that the buyer have his estimates independently evaluated, but the buyer failed to follow through19; and (3) when 

a plaintiff failed to read a legal agreement before signing it 

and had an opportunity to do so,20 assuming that the plaintiff’s 

execution of the contract was not induced by fraud.21

[12-14] And regarding intentional misrepresentations, we 

have explained that a plaintiff’s contributory negligence is 

not a defense to such claims: “‘[A] fraud-feasor will not be 

heard to assert that his victim was negligent in relying on the 

misrepresentation.’”22 So, 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.23 In 

intentional misrepresentation cases, a plaintiff fails to exercise 

ordinary prudence only when the plaintiff’s reliance is wholly 

16 See Omaha Nat. Bank v. Maufacturers Life Ins. Co., 213 Neb. 873, 332 

N.W.2d 196 (1983).

17 See Lucky 7 v. THT Realty, 278 Neb. 997, 775 N.W.2d 671 (2009).

18 See id.

19 Schuelke v. Wilson, 250 Neb. 334, 549 N.W.2d 176 (1996).

20 See Omaha Nat. Bank, supra note 16.

21 See Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 

792 (2005).

22 See Omaha Nat. Bank, supra note 16, 213 Neb. at 884, 332 N.W.2d at 

203, quoting Kubeck v. Consolidated Underwriters, 267 Or. 548, 517 P.2d 

1039 (1974).

23 Id.
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unreasonable, given the facts open to the plaintiff’s observation and his or her own skill and experience.24 “[A] plaintiff 

‘“may not close his eyes to what is obviously discoverable 

by him.”’”25

But here, the truth of the facts presented by Frost’s alleged 

false statements was not obvious. Discovering whether the first 

builder had defaulted, whether liens had been placed on the 

property, and whether $200,000 was still available from the 

construction loan money would have required an investigation. 

So, a fact finder could reasonably infer that the Frosts made 

intentionally false or misleading statements and that D&Y justifiably relied on them.

Finally, if a fact finder believed D&Y’s evidence, he or she 

could conclude that Frost’s alleged misrepresentations were 

material to the transaction. Yost testified that D&Y would not 

have entered the contract if it had known the first builder had 

sued the Frosts for defaulting on the contract. Obviously, if 

D&Y had known that the Frosts defaulted, it would have questioned whether the Frosts were in financial trouble and could 

obtain funding from the original construction loan or a new 

loan. Equally important, this information would have alerted 

D&Y that filing a lien if the Frosts defaulted might be futile. 

We conclude that the court erred in granting summary judgment to the Frosts on D&Y’s fraud claim.

(b) Questions of Fact Precluded Summary 

Judgment for the Frosts and the Bank 

on D&Y’s Civil Conspiracy Claim

In D&Y’s civil conspiracy claim, it alleged that Frost and 

the bank conspired to conceal that the Frosts were insolvent 

and could not pay their debts by assuring D&Y that funding 

was available to pay D&Y the amount of their lien. D&Y 

alleged that the bank, as part of the conspiracy, assured D&Y 

that funding for the full amount of D&Y’s lien was available 

24 Id.

25 Lucky 7, supra note 17, 278 Neb. at 1004, 775 N.W.2d at 676.
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to the Frosts to pay D&Y for its work. It alleged that this 

deception benefited the bank by maximizing the returns the 

bank would receive on loans it had already made to the Frosts. 

It further alleged that the bank wanted to conceal from other 

creditors that the Frosts were insolvent and that the bank 

had already made loans to the Frosts or for their benefit that 

exceeded the bank’s legal lending limit. The court granted 

summary judgment to both the Frosts and the bank on the 

conspiracy claim.

(i) Court Erred in Granting Summary 

Judgment to the Frosts

Because the court had already determined that D&Y’s fraud 

claim against the Frosts failed as a matter of law, it concluded 

that Frost could not have conspired to commit fraud. It granted 

the Frosts summary judgment on this claim.

D&Y contends that the court erred because D&Y’s evidence 

established that after D&Y stopped work in October 2007, 

Frost and the bank were acting in concert. D&Y contends that 

the conspiracy occurred when Royal, on Frost’s behalf, sent 

the December 10, 2007, e-mail to Frost to forward to D&Y 

and when Royal assured Yost in telephone conversations that 

the bank would finance the Frosts’ construction and pay the 

amount of D&Y’s lien directly to it. In addition, D&Y argues 

that the court failed to recognize that its fraud claim and civil 

conspiracy claim rested on two separate periods. That is, its 

second cause of action for fraud rested on facts showing the 

Frosts’ alleged misrepresentations in April 2007, before the 

parties entered into the contract. But its third cause of action 

for civil conspiracy rested on facts that occurred in December 

2007, after D&Y stopped work on the house in October. D&Y 

alleged that after D&Y stopped work, Frost and the bank conspired to make fraudulent misrepresentations that the Frosts 

had funding available to pay for D&Y’s work to induce D&Y 

to resume work.

We agree with D&Y that the court incorrectly granted Frost 

summary judgment on D&Y’s third cause of action because 
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it had determined that D&Y’s second cause of action against 

the Frosts failed as a matter of law. First, we have determined 

that the court incorrectly granted summary judgment to the 

Frosts on D&Y’s second cause of action for conduct occurring 

in April 2007. Second, even if its ruling had been proper, it 

would not have invalidated D&Y’s claim that Frost colluded 

with Royal in December 2007 to make fraudulent misrepresentations about the availability of funding to induce D&Y to 

resume work.

(ii) Court Erred in Granting Summary 

Judgment to the Bank

The court concluded that D&Y’s conspiracy claim against 

the bank failed because a civil conspiracy claim depends on the 

existence of an underlying tort. Because D&Y did not allege 

a separate fraudulent concealment claim against the bank, the 

court concluded that D&Y could not maintain a conspiracy 

claim against the bank. We disagree.

[15,16] 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.26 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.27

[17,18] 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.28 Furthermore, a 

civil conspiracy is only actionable if the alleged conspirators 

actually committed some underlying misconduct.29 That is, 

a conspiracy is not a separate and independent tort in itself; 

26 Eicher, supra note 21.

27 Id.

28 Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).

29 Id.
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rather, it depends upon the existence of an underlying tort.30 So 

without such underlying tort, there can be no cause of action 

for a conspiracy to commit the tort.

[19,20] As these rules illustrate, 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. But 

we have never held that the plaintiff must plead the underlying tort of civil conspiracy as a separate claim against the 

defendants. To the contrary, in Ashby v. State,

31 we specifically 

looked to the plaintiff’s allegations of the underlying tort in his 

conspiracy claim. The tort allegations were not set forth as a 

separate claim in the complaint, nor need they be.

[21,22] Nebraska is a notice pleading jurisdiction. Under 

our 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.32 A plaintiff’s allegations are sufficient if 

they give the defendant fair notice of the claim to be defended 

against.33 We conclude that D&Y met this requirement.

But the bank argues that the court’s summary judgment 

order was correct because no evidence established that the 

bank conspired with the Frosts to conceal their insolvency in 

April 2007. This argument is irrelevant. As stated, the conspiracy claim allegations focused on conduct occurring in 

December 2007, after D&Y had stopped working in October. 

Finally, the bank argues that no evidence established the following facts: (1) The bank knew the Frosts were insolvent, 

(2) the bank assured D&Y that it would provide a loan for the 

construction, or (3) the bank agreed to conceal that it would 

not provide funding. But the court did not address these factual 

issues, and we decline to do so for the first time on appeal. We 

conclude only that the court erred in granting summary judgment for its stated reason.

30 Id.

31 Id.

32 Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).

33 See id.
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2. D&Y Has Not Shown That the Cou

in Denying Its Claims for Eq

and Promissory Estop

As explained, after the court granted summary judgment to 

the Frosts and the bank on D&Y’s fraud and civil conspiracy 

claims, it ruled in a bench trial for the defendants on D&Y’s 

claims of equitable and promissory estoppel.

In D&Y’s claim for equitable estoppel, it alleged that “[o]n 

or about December 10, 2007, [the bank] committed to paying 

D&Y $208,000 for completion of [the house].” It alleged that 

the bank’s commitment was akin to a guarantee of the Frosts’ 

payment of the contract and that the bank was estopped to deny 

the commitment. In its claim for promissory estoppel, D&Y 

alleged that it relied on Royal’s written and oral representations 

in completing the contract. It alleged that the bank knew or 

should have known that D&Y would rely on its representations 

in providing its services.

In finding for the defendants on D&Y’s equitable estoppel 

claim, the court concluded that D&Y had alleged it resumed 

and finished the work only because of Royal’s representations 

in the December 10, 2007, e-mail. It stated that if D&Y had 

immediately resumed work, its reliance on the e-mail would 

have presented a closer case. But the court emphasized that 

Yost had called Royal on December 11, the day D&Y received 

the e-mail, and then asked Royal in an e-mail to confirm their 

alleged agreement over the telephone. The court recognized 

that the parties disputed whether Royal had orally committed 

to provide funding for the work. But it stated that “it is undisputed that Royal never responded to any of Yost’s requests for 

a letter of assurance.”

From these findings, the court determined that D&Y had 

not established by clear and convincing evidence that it had 

“relied in good faith on Royal’s December 10, 2007 email.” It 

noted that D&Y had not specifically alleged that it relied on a 

combination of the e-mail and later telephone calls with Royal. 

But the court concluded that this allegation would have failed 

because it found that D&Y had failed to establish by clear and 
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convincing evidence that Royal gave any assurances to Yost in 

telephone conversations.

In ruling against D&Y on its promissory estoppel claim, the 

court concluded that D&Y had not reasonably relied on the 

bank’s alleged promise:

A reasonable person in similar circumstances would not 

have resumed construction on the Property at issue one 

day after receiving no response to a request for a written 

letter of assurance. Furthermore, D&Y did not present 

evidence during trial establishing that it knew any of the 

answers to the questions in Yost’s December 11, 2007 

email regarding the method of payment of the alleged 

loan, to whom the funds would be paid, or the timing 

of payment prior to resuming construction. The Court 

finds that any reliance on [the bank’s] alleged promise without answers to these critical questions would 

have been both unwise and unreasonable, particularly 

in this situation where D&Y was operating as a sophisticated business entity within the construction industry 

and was actively seeking to protect its financial interests 

after the Frosts had failed to pay for much of the work 

already completed.

(a) D&Y Has Not Argued That the Court’s 

Judgment on Its Equitable Estoppel 

Claim Was Incorrect

In D&Y’s brief, it fails to explain why it believes the court 

erred in finding that it failed to prove its claim that the bank 

should be equitably estopped from denying it had committed 

to guaranteeing the Frosts’ payment of the contract price. D&Y 

argues only that we try the issue de novo and that we should 

not defer to the court’s reliance on Royal’s deposition testimony because he did not appear at trial.

[23] As stated in the standard of review section, we agree 

that this claim is grounded in equity and that for such appeals, 

we decide factual questions de novo on the record. But to 

raise a factual question on appeal, D&Y must comply with our 

rules for appellate briefs. For an appellate court to consider an 
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alleged error, a party must specifically assign and argue it.34

Although we conclude that the court’s reasoning is relevant to 

D&Y’s promissory estoppel claim, we decline to address its 

assignments of error related to equitable estoppel.

(b) Court Did Not Err in Entering Judgment 

for the Defendants on D&Y’s 

Promissory Estoppel Claim

Regarding the promissory estoppel judgment, D&Y argues 

that the undisputed evidence on its promissory estoppel claim 

showed that Yost asked Royal to send D&Y a confirmation 

letter of his oral promise and that Royal never complied. D&Y 

contends that the court erred in characterizing the requested 

letter as a “letter of assurance” and in concluding that these 

facts showed D&Y had not reasonably or in good faith relied 

on Royal’s promise. D&Y argues that although it wanted the 

letter in order to get its subcontractors to work on the house 

again, D&Y itself reasonably relied on Royal’s oral promise 

in a December 11, 2007, telephone conversation to fund the 

work. D&Y argues that a party’s reliance on a promise is 

reasonable when it has no reason to know the truth or the 

means of discovering the truth with reasonable diligence. It 

contends that it did not know, and could not have discovered 

with reasonable diligence, that Royal’s promises were untrue 

when made.

[24] 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.35 Under Nebraska law, a plaintiff need not show a 

promise definite enough to constitute a unilateral contract, but 

34 See, Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779, 

844 N.W.2d 755 (2014); Curtis v. Giff, 17 Neb. App. 149, 757 N.W.2d 139 

(2008). See, also, See, Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).

35 See, Cass Cty. Bank v. Dana Partnership, 275 Neb. 933, 750 N.W.2d 701 

(2008); Fast Ball Sports v. Metropolitan Entertainment, 21 Neb. App. 1, 

835 N.W.2d 782 (2013), citing Rosnick v. Dinsmore, 235 Neb. 738, 457 

N.W.2d 793 (1990).
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it must be definite enough to show that the promisee’s reliance 

on it was reasonable and foreseeable.36

[25] We agree with D&Y that 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.37 Our case law is consistent with these cited authorities. 

We have held that a property owner did not rely in good faith 

on a zoning variance when the owner had learned that the 

variance faced a court challenge before beginning a construction project.38

Moreover, D&Y’s reliance on Royal’s promise to provide 

funding for the project would not be in bad faith just because 

the promise was oral.39 And D&Y’s evidence showed that it 

was relying on both Royal’s December 10, 2007, e-mail and 

his alleged statements to clarify the e-mail in a December 11 

telephone conversation with Yost. D&Y also presented evidence to show that Royal assured Yost that he would send a 

confirmation letter of the bank’s oral promise and repeated 

these statements in later telephone calls. Under D&Y’s version 

of events, until Royal informed D&Y that Frost was seeking 

a loan from the lot lender, D&Y would have had no reason 

to suspect that Royal’s alleged promise to provide funding 

was false.

But we disagree with D&Y that all the facts relevant to its 

promissory estoppel claim were undisputed. In his deposition, 

Royal denied telling Yost that the bank would provide funding for D&Y’s work. He could not recall speaking to Yost on 

December 11, 2007, when Yost claimed Royal orally promised 

36 See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 

N.W.2d 235 (2006).

37 See, Heckler v. Community Health Services, 467 U.S. 51, 104 S. Ct. 

2218, 81 L. Ed. 2d 42 (1984), citing 3 John Norton Pomeroy, A Treatise 

on Equity Jurisprudence §§ 805, 810, and 812 (Spencer W. Symons ed., 

5th ed. 1941); Restatement (Second) of Torts, supra note 8, § 541 and 

comment a.

38 See Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992).

39 See Cass Cty. Bank, supra note 35.
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to provide the funding. And Royal said he told Yost that Frost 

had mentioned getting money from the lot lender. The district 

court specifically found that D&Y had failed to prove that 

Royal promised to fund D&Y’s work.

We recognize that the court made this finding in deciding D&Y’s equitable estoppel claim instead of its promissory 

estoppel claim. But we cannot ignore this finding, which is 

ostensibly incompatible with its conclusion that D&Y did not 

reasonably rely on Royal’s alleged oral promises. The court’s 

conclusion that D&Y did not rely in good faith on Royal’s 

promise rests on an implicit assumption that a promise was 

made. We believe the court’s order is consistent only if it is 

interpreted as concluding D&Y had failed to prove by clear 

and convincing evidence that Royal’s oral statements were 

sufficiently definite to show a promise to fund D&Y’s work 

that would reasonably and foreseeably induce its reliance. And 

we conclude there is support for this finding. But the court’s 

judgment for the defendants on D&Y’s estoppel claims does 

not preclude D&Y from attempting to prove—for its claims of 

fraud and civil conspiracy—that Royal made statements that 

foreseeably induced its reliance.

3. D&Y’s Failure to Satisfy Clear and 

Standard of Proof Does Not Pre

Litigation of Same Issue U

Lower Standard of P

[26-30] A plaintiff must establish each element of equitable estoppel by clear and convincing evidence.40 The same 

standard of proof applies to a promissory estoppel claim resting on allegations of fraud. In claims for equitable relief, 

Nebraska law imposes a clear and convincing standard of 

proof for allegations of fraud.41 But it does not impose a clear 

40 Double K, Inc. v. Scottsdale Ins. Co., 245 Neb. 712, 515 N.W.2d 416 

(1994); Commerce Sav. Scottsbluff v. F.H. Schafer Elev., 231 Neb. 288, 

436 N.W.2d 151 (1989).

41 See, Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007); 

Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998); Kracl v. 

Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990); Bock v. Bank of Bellevue, 

230 Neb. 908, 434 N.W.2d 310 (1989).
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and convincing standard of proof for fraud claims in actions at 

law.42 The standard of proof for fraudulent misrepresentation 

claims is proof by a preponderance of the evidence.43 And 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.44

VI. CONCLUSION

We conclude that the court erred in granting summary judgments to the Frosts on D&Y’s fraud claim and to the Frosts 

and the bank on D&Y’s civil conspiracy claim. In its final 

judgment, we conclude that the court did not err in finding that 

D&Y failed to prove by clear and convincing evidence that 

Royal, the bank’s president, made a promise to fund D&Y’s 

work that was definite enough to induce D&Y’s foreseeable 

reliance on the statement. But we conclude that this finding 

does not preclude D&Y from attempting to prove otherwise 

under the lower standard of proof that applies to its fraud 

claims. We reverse the court’s summary judgment orders and 

remand the cause to the court to conduct further proceedings 

on D&Y’s claims of fraud and civil conspiracy.

 Affirmed in part, and in part revers

remanded for further proceeding

Stephan, J., not participatin

42 City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 

N.W.2d 725 (2011).

43 See Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997).

44 See, In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002); 

State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995); Restatement (Second) 

of Judgments § 28(4) (1982).