deNourie & Yost Homes v. Frost
295 Neb. 912
| Neb. | 2017Background
- D&Y (deNourie & Yost Homes) completed construction work for Joe and Amy Frost under a Project Completion Agreement (2007) and later obtained a $245,000 judgment on its breach-of-contract claim after the Frosts confessed judgment at trial; the Frosts and the house later became insolvent and foreclosed.
- D&Y sued the Frosts and Security State Bank (Dundee Bank) alleging breach of contract, fraud/concealment, civil conspiracy, and estoppel theories; the district court granted summary judgment dismissing fraud and conspiracy claims pre-remand.
- On the first appeal (Frost I), the Nebraska Supreme Court reversed summary judgment as to fraud and civil conspiracy and remanded for further proceedings, leaving other issues (including potential defenses) open.
- After remand D&Y filed a fifth amended complaint expanding fraud and conspiracy allegations and seeking substantial damages; the Frosts moved to dismiss or for summary judgment.
- The district court treated D&Y’s prior breach judgment as an election of remedies and also invoked judicial estoppel, granting summary judgment dismissing D&Y’s fraud and conspiracy claims and (by nunc pro tunc order) dismissing all claims against both defendants.
- D&Y appealed; the Nebraska Supreme Court held that the district court erred in applying election of remedies and judicial estoppel and reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (D&Y) | Defendant's Argument (Frosts/Bank) | Held |
|---|---|---|---|
| Jurisdiction | Appeal proper because district court’s nunc pro tunc produced a final order; D&Y did not voluntarily dismiss conspiracy claim | Bank argued D&Y voluntarily dismissed conspiracy claim to create finality and avoid interlocutory posture | Court found record ambiguous but concluded a final appealable order exists and it has jurisdiction |
| Law‑of‑the‑case | Remand required a trial on fraud and conspiracy; summary judgment barred by mandate | Defendants argued mandate allowed re-litigation of defenses (e.g., election, estoppel) on remand | Court: mandate was a general remand; law‑of‑the‑case did not bar district court from addressing new defenses on remand |
| Election of remedies | D&Y affirmed contract and sought damages for both breach and fraud; no inconsistent remedies or double recovery sought | Defendants: D&Y elected contract remedy by taking judgment, so cannot later claim fraud (which would treat contract as void) | Court held election doctrine inapplicable: D&Y affirmed the contract (voidable, not void), sought damages on both theories, and the fraud and breach claims arose from different obligations/facts |
| Judicial estoppel | D&Y’s positions are consistent—both claims presuppose a contract and seek damages | Defendants argued D&Y’s prior judgment on breach was inconsistent with later arguing contract invalid due to fraud | Court held judicial estoppel improperly applied: D&Y did not take inconsistent positions and doctrine was abused here |
Key Cases Cited
- deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (Neb. 2014) (prior opinion reversing summary judgment on fraud and conspiracy and remanding)
- Bauermeister Deaver Ecol. v. Waste Mgmt. Co., 290 Neb. 899, 863 N.W.2d 131 (Neb. 2015) (law‑of‑the‑case and general‑remand principles)
- Cleaver‑Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (Neb. 2015) (standards for appellate review of judicial estoppel application)
- InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (Neb. 2012) (fraud induced contract is voidable and may be affirmed; plaintiff may affirm contract and seek damages)