*1 sum, set- the record contains no facts which would justify three nearly value of the subject property the 1996 actual ting and more than twice the value estab- times its 1995 valuation Thus, contained in the record. we lished only appraisal of review prescribed by conclude that under the standard 77-5019(5), did not err in determining the Court of Appeals § the TERC sufficient evidence before Ecology presented US Board acted arbitrarily capriciously establish that the valuation and that the correct valuation for that the 1996 setting $166,000, of its actual value. year representing percent
Affirmed. J., Miller-Lerman, not participating. Goff-Hamel, appellant, Julie appellee. P.C., Gynecologists,
Obstetricians 2d
583 N.W. 798 29, 1999. January Filed No. S-97-1007. Haszard, Roth,
Stephanie McHenry, R. Hansen & Hupp, for appellant. *2 Stine, Downs, E. of Shultz &
Margaret for Harding, appellee. Hendry, C.J., Wright, Connolly, Gerrard, Stephan, and JJ. McCormack, Miller-Lerman, J. Wright,
NATURE OF CASE Julie Goff-Hamel this action brought against Obstetricians & (Obstetricians), Gynecologists, P.C. seeking damages or, breach of an oral alleged employment contract the alter- native, damages for detrimental reliance on a of employment. The trial court granted summary judgment Obstetricians, favor of and Goff-Hamel appeals.
SCOPE OF REVIEW In a reviewing summary judgment, court appellate views the evidence in a most light favorable to the whom party against judgment and granted such the benefit of all gives party reasonable inferences deducible from the evidence. Foreman v. Mid-America, AS 255 Neb. (1998). law, reviewing question of an appellate court reaches a conclusion of the lower independent court’s ruling. Hoiengs Adams, County of
FACTS Goff-Hamel worked for Hastings Family for 11 Planning years. Prior to leaving Hastings Family Planning, Goff-Hamel $24,000 earning plus following benefits: 6 weeks’ paid leave, vacation, maternity weeks’ paid 12 sick holidays, reimbursement, days, an educational and medical and dental insurance coverage.
In July Goff-Hamel met with representatives Obstetricians regarding possibility employment. Present Quackenbush, at the were meeting Janet the office Dr. manager; Obstetricians; Adam, Larry Draper, owner of George part involved in decisions. personnel a consultant Obstetricians working Adam had Goff-Hamel June 1993 about approached for him as relations and outreach coordinator at patient offer, Obstetricians. Goff-Hamel declined the initially explain- that she had made commitments to do some in the ing training fall and hire Adam train a new to help bookkeeper. spoke later, Goff-Hamel 1 month her to recon- asking approximately sider and whether she was and come work ready “jump ship for him.” Goff-Hamel told Adam she would be interested details, some and an interview was set for 27 at hearing July Adam’s office.
At the Adam to Goff-Hamel that the meeting, represented $10 full position would be time and would start at a salary vacation, hour and that she per provided would weeks’ paid uniforms, three or four and an educational paid holidays, A retirement would start after the end of the sec- stipend. plan ond retroactive to the end of the year, first year. job not health insurance. provide job
Goff-Hamel was offered a with Obstetricians during *3 27, 1993, and she offer at that July meeting, accepted job time. She concern that she be time to finish expressed given some at and it Hastings Family agreed was projects Planning, that she would start her on October 4. Goff-Hamel employment notice to gave Hastings Family Planning August, informing them that she would be take with Obstetricians. resigning job Goff-Hamel went to Obstetricians’ office and
Subsequently, was with for her She provided job. uniforms was given copy work, of her schedule for the first week of but did not receive a of the handbook. copy 3, 1993, On October Goff-Hamel was told that she Draper morning should not to work the next as had been report Foote, the told her that Janel wife of a planned. Draper part Obstetricians, Foote, owner of Dr. Terry opposed hiring Goff-Hamel.
The trial court found that there were no facts and dispute that Goff-Hamel had not turned down other employment The between and October 1993. court found opportunities July that had at Hastings she terminated employment Family offer from in reliance on an Planning employment Obstetricians; however, agreement employment prospective court The noted that was not for a term of specific was unable sought Goff-Hamel but replacement employment, obtain until when she April employed employment $11 rate hour. time at the part per since was to trial court concluded that Goff-Hamel will, her could be terminated at any employed time, before she The court concluded including began working. that under law or promissory either contract estoppel, was entitled as a matter of law. judgment Obstetricians to a OF
ASSIGNMENTS ERROR trial Goff-Hamel asserts that the court erred sustaining Obstetricians’ motion for summary judgment and overruling her motion for summary judgment.
ANALYSIS Obstetricians’ motion for sustaining summary judgment, the trial court concluded as a matter of law since that Goff- Hamel’s been have terminated 1 day without Obstetricians liability, dictated that her incurring logic could also be terminated before started it without liability. 27, 1993,
It is
that on
undisputed
July
Obstetricians offered
Goff-Hamel
she
The oral
accepted.
agree-
ment did not
that the
for a
specify
employment was
definite
period. We have
held that
consistently
when
is not
contractual,
for a definite term and there are no
or
statutory,
constitutional
restrictions
right of
an
discharge,
may lawfully discharge
whenever
See,
for whatever cause it
Myers
chooses.
v. Nebraska Equal
Comm.,
Opp.
Neb.
582 N.W.2d
(1998);
Gillis v.
Madison,
City
matter of law that Goff-Hamel could not bring a claim for breach of an employment contract. Goff-Hamel’s second of action cause was based upon “
promissory estoppel. development of the law of ‘[T]he “is an the promissory estoppel attempt by courts to reme- keep dies abreast of increased moral of consciousness honesty fair representations all business dealings.”’” Rosnick v. Dinsmore, 738, 751, 235 Neb.
Promissory estoppel provides justice as requires and does not to attempt provide the plaintiff damages based the benefit upon of the It bargain. Id. that reliance requires only be reasonable and foreseeable. It does not impose require- ment that the promise rise giving to the cause of action must be so comprehensive as to meet scope of an requirements offer that would into ripen a contract if accepted by promisee. Hawkins Constr. Co. v. Reiman 245 Neb. Corp., Dinsmore, (1994); N.W.2d 113 Rosnick v. supra.
We have not specifically addressed whether promissory cause, estoppel may be asserted as the basis for a of action for detrimental reliance promise Thomas, Merrick v.
employee was terminated from her job approximately months after she had been hired. We determined that because the time, had employee worked for a the employer had his kept promise employ plaintiff that promissory estoppel was not available. We did not consider whether a cause of action based upon promissory estoppel could be stated by a prospec- tive at-will employee who had been induced to leave previous gainful employment based of promise other employ- ment, but who did not commence at the new job.
Other jurisdictions which have addressed the question whether a cause of action for promissory can be estoppel stated in the context of a prospective at-will employee are on split issue. Some have held that an employee can recover damages incurred as a result resigning from the former at-will employ- ment in reliance on a other at-will employment. They have determined that when a prospective employer knows or should know that a will induce an leave his or her current job, such employer shall be hable for the reliant’s damages. Recognizing both the prospective new employer and the prior employer could have fired time, without cause at any they have con- cluded that the have continued to work in his
or her if it were not for the offer employment by prior have not been allowed prospective employer. Although damages lost from the at-will dam- wages prospective employment, ages have been allowed based from the upon wages prior and other incurred in damages reliance on the job offer. contrast,
In other have held as a matter jurisdictions of law that a cannot recover incurred in prospective employee reliance on an unfulfilled promise con- employment, that reliance on a cluding consisting solely is unreasonable matter as a of law because the should know that the promised could be terminated time for any reason without These courts liability. have stated that an anomalous result occurs when is allowed recovery for an employee who has not work, when begun the same could employee’s job be terminated without after liability day beginning work. Promissory Estoppel Allowed following cases have held that a prospective employee
had a cause of action for damages incurred in reliance Plan, employment. Grouse v. Group Health (Minn. 1981), a pharmacist at a working drug- store desired with or clinic. hospital accepted He with a clinic and gave weeks’ notice to the drug- store. During period, this he declined a job with a hospital because he had accepted employment with the clinic. Upon work, reporting to he was told that someone else had been hired because the pharmacist did not certain satisfy hiring require- ments of the He clinic. had difficulty other obtaining full-time employment and suffered wage loss as a result.
The clinic argued that the application of promissory estoppel would create an anomalous rule such that an employee who is told not to to work report before he day is scheduled to begin has a remedy, while an who is discharged the first day does not. In rejecting the clinic’s argument and allowing recovery, the court concluded that under the circum- stances it would be unjust not to hold the clinic to its promise. The court stated: he would be given had a to assume right
[A]ppellant his duties to the satis- faith opportunity perform good He was not once he was on the job. faction of respondent he but resigned position denied that only opportunity the firm offer which respondent held in reliance on already tendered him.
Id. at 116. circum- that under recognized appropriate
The court also
stances,
if the
even
apply
promissory estoppel
conclud-
he had commenced
thus
employment,
was fired after
*6
an anomalous
necessarily
its
would not
create
ing
ruling
that
have
the
could
been ter-
employment
result. Since
prospective
time,
the
were
minated at
the court
that
explained
any
clinic, but,
have earned from the
not what the
rather,
pharmacist
what he
the
he held and
job
declining
lost
quitting
See, also,
v.
least one offer of
elsewhere.
Gorham
employment
(Minn.
1995);
Benson
In was judgment granted against summary contract, fraud, who for breach of employee, employer sued and The court reversed the sum- promissory estoppel. appellate on the claim. The mary judgment estoppel promissory had been called in 1993 about employee September job oppor- time, $38,000 with At he earned Benson tunity Optical. as a He was offered a annually manager LensCrafters. posi- $50,000 tion for Benson he with and and Optical, accepted gave notice of to LensCrafters. The resignation day last employee’s 1, of work for LensCrafters was October and on he October attended Benson On Optical’s meeting. national sales October 4, he attended a to know which left him “getting you” meeting with the that his had been or would be impression terminated, officially and on October his was terminated. Grouse, the Gorham court found no relevant
Relying difference between the Benson prospective Optical employee, later, who 1 for work and was terminated and the reported day Grouse, 1 in who was denied even on the employee day job. Both men relied to their detriment on the of a new had promise to Neither man had faith his good opportunity perform
job.
duties.
Hawaii,
In
66 Haw.
(1983), resigned officer from his reliance on police position offer an another His wife city. resigned and school where their children job, they private informed that were from being were enrolled removed school. they officer told he that was not Subsequently, police going hired, he his wife to be were attempt- unsuccessful get previous jobs. to back their ing Relying upon Restatement of Contracts Court Supreme § reversed the trial court’s dismissal and concluded that promis- in the of a sory estoppel applied case at-will employment. T, (8th Bower AT & F.2d 361 Technologies, Cir.
1988), the court between an distinguished at-will who employer an fires work and an at-will employee day beginning who withdraws the offered employer before the given is an The opportunity perform. court stated who withdraws the offered before given an fails to opportunity perform keep its respect. court concluded that the prospec- tive whose offer was withdrawn had a cause of action. Imedia, Inc.,
In Peck v.
Super.
N.J.
266
784
the
Rptr.
court held that under
theory
either breach of implied covenant of
faith and fair
good
dealing
banker could
for
or
an investment
recover
promissory estoppel,
to fulfill
incurred when a
failed
prospective employer
of at-will
In reliance
the
promise
its promise
the banker had
his
employment,
resigned
previous employ-
an
ment and
to move to another
a lease on
arranged
city, signing
there.
of Grouse v.
apartment
Adopting
reasoning
Group
Plan, Inc.,
(Minn. 1981),
Health
the court
cannot
a new
to sever
employee
stated:
expect
“[A]n
his former
and move across the
to be
country only
lease,
terminated before the ink dries on his new
before he
or
has had a chance to
his
ability
satisfy
demonstrate
of the
218 Cal.
3d at
requirements
job.” Sheppard,
App.
See, also,
Cal.
at 787.
Comeaux v. Brown &
Rptr.
Williamson
(9th
1990).
Tobacco
prospective state a claim for employees promis- Swanson, In Bakotich v. sory estoppel. 91 Wash.
P.2d 275 the court rejected prospective employee’s claim for damages incurred reliance of at- promise will employment. Although that he termi- employee alleged offer, nated his reliance on the prior employment job court held that the supposed promise only and that no there was or reasonable promise expec- Therefore, tation of permanent employment. court declined to extend contract to at-will absent a principles clear and definite which permanent employment would support promissory estoppel. Laboratories,
In White v. Roche Biomedical 807 F. (D.S.C. 1992), the court held Supp. that reliance on a promise consisting solely of was unreason- law, able aas matter of since the created no enforceable rights favor of the other than the right to collect wages accrued work The court held performed. that to hold otherwise would create an anomalous result insofar as in a better than prospective employee placed position whose at-will was terminated at some began working. point *8 28 Communications, 761 in Rosatone v. GTE
Similarly,
Sprint
(Mo.
1988),
allowing
the court found that
S.W.2d 670
App.
in cases of unfulfilled promises
claims of promissory estoppel
create an anomalous result to
of at-will
to at-will
who
holdings
recovery
employees
which denied
prior
also,
See,
had
work.
Faust v.
Commercial
Ryder
commenced
Serv.,
(Mo.
1997);
&
954 S.W.2d
Leasing
App.
Morsinkhoff
(Mo.
v. DeLuxe
In v. Lawrence 194 Wis. 2d University, Heinritz (Wis. 1995), claim of rejected N.W.2d 81 the court App. a who had termi- estoppel by promissory prospective nated his reliance prior employment offer. The court stated that such reliance did not change nature of the which was for an at-will that promise, relationship could be time either without cause. by party terminated at Murco, Inc, v Meerman 205 Mich. App. the court stated that to a claim of support promis- an unfulfilled sory estoppel upon employ- ment, there must feature distinguishing be a which would general remove the case from the rule of at-will employment. The court determined who sought that an out induced and to leave other prospective employer failed to establish reliance of a kind that would remove the case Rather, from the rule general regarding court involved opined merely such reliance the customary necessary changing jobs incidents was not consider- ation to claim. Filcek support promissory estoppel Compare, Norris-Schmid, Inc, v 156 Mich. App. Foodmaker, Inc,
(1986); Hackett v 69 Mich. reviewed Having and considered decisions from other juris- dictions, we conclude under the facts of this case that promis- can be asserted in with the sory connection offer of at- estoppel will and that the trial court erred in granting Obstetricians A of action summary judgment. cause for promis- based which the sory estoppel promisor should to induce action or reasonably forbearance on the expect of the which does in fact induce promisee such action or part Here, *9 forbearance. is where promissory estoppel appropriate Goff-Hamel acted to her detriment in order to avail herself of the promised employment. the trial
We next consider whether
court should have granted
in
summary
favor of Goff-Hamel.
the denial
judgment
Although
of a motion for
not a final order and thus
summary judgment is
is not
when adverse
have each moved for
appealable,
parties
and the trial court sustained one
the
summary judgment
of
motions, die
court
reviewing
over both
acquires jurisdiction
motions and
determine the
which is the
may
controversy
subject
Bank,
410,
of those motions. Zimmerman v. FirsTier
255 Neb.
Paxton,
(1998);
The facts are not that disputed Obstetricians offered Goff- Hamel at the employment. Apparently, direction of the spouse owners, of one of the Obstetricians refused to honor its promise It is also undisputed Goff-Hamel relied Obstetricians’ upon to her detriment in Therefore, that she terminated her of 11 years. case, under the facts of this the trial court granted should have summary judgment favor of Goff-Hamel on the issue liability.
However, there remains a material issue of fact regarding amount of sustained damages Goff-Hamel. On motion for by summary judgment, is not how a factual issue is to question decided, but whether real issue of material fact any exists. v. Dragon, (1998); 255 Neb. Kozicki Herman Bros. v. Great WestCas. 255 Neb. 582 N.W.2d (1998). Promissory as estoppel provides damages jus- dam- attempt provide plaintiff tice and does not requires Dinsmore, Rosnick ages bargain. based the benefit of upon For the dam- example, an who current ages by quits sustained another are different than the accept damages sustained job may who had no but have prior employment job moved to a new location in reliance In the lat- upon a offer. case, wages ter from are not considered in the prior employment damages give determination of because the did not party up offer. In prior employment reliance new neither case are damages to be based wages have earned because the prospective employment will. was terminable at event, awarded, the amount of if any, to be of fact to be determined from question the circumstances of case, i.e., *10 each as justice requires.
We therefore reverse the judgment of trial court and the cause for remand further accordance with proceedings this opinion.
Reversed and remanded FURTHER PROCEEDINGS. J., dissenting. Stephan,
I dissent. In respectfully my the district opinion, court cor- determined a matter rectly as of law that Goff-Hamel could not under a proceed either breach of contract or promissory estop- pel theory of I recovery. cannot reconcile the result reached by or majority its rationale with our firmly established legal and,
principles governing As succinctly view, my stated correctly by district court: plaintiff “Since could have been terminated after one day’s employment without the defendant incurring liability, logic dictates she could also be terminated before the employment started.”
The majority Plan, relies on part Grouse v. Group Health (Minn. 306 1981), N.W.2d 114 which concluded that of principles promissory set forth in the estoppel Restatement of (1932) Contracts 90§ could apply a termination of at-will employment which occurred before the employee actually started working because “under appropriate circumstances we
[31] believe
of
section 90 would
even
apply
[Restatement Contracts]
Grouse,
after
However,
has
306
at 116.
begun.”
N.W.2d
Thomas,
we held in Merrick v.
522
Neb.
N.W.2d 402
that an at-will
who was dis-
not,
a short
charged
began
time
she
as
working
law,
matter of
assert a
claim for
promissory estoppel
Thus,
from
resulting
resignation of
previous employment.
this essential
premise
Grouse is
con-
holding
directly
Grouse,
to our law. Another basis for the decision in
as
trary
in the
quoted
is that one who is offered
majority opinion,
employment has “a
to assume he would
right
given good
faith
opportunity
perform his duties to the satisfaction” of the
306 N.W.2d at
employer.
116. This
to our law
concept
foreign
inconsistent with the
entirely
established principle,
acknowledged
that in the
majority,
absence of contrac-
tual,
restrictions,
statutory, or constitutional
an employer may
discharge an at-will
“whenever and for whatever
Comm.,
cause it chooses.”
Myers Nebraska
Equal Opp.
156, 163,
Neb.
(1998).
Accord Gillis v.
Madison,
See,
City
(1995).
Neb.
also,
v. Nicholson
Hamersky
Supply
Thus,
whether an at-will employee per-
forms in a
manner is
satisfactory
immaterial to the employer’s
right to
discharge,
there is no basis under our law for an
assumption
satisfactory
such an
performance by
would create an entitlement to continued employment.
T,
also
majority
includes Bower v. AT & Technologies,
Inc., 852
(8th
1988),
F.2d 361
Cir.
those
among
decisions rec
ognizing potential
under a
liability
theory
promissory estoppel, notwithstanding
fact that the promised
was at
*11
will. The federal court in Bower
the
applied
substantive law of Missouri. Three months after Bower was
decided, its reasoning was
the
repudiated by Missouri Court of
Communications,
Appeals
Rosatone v. GTE
Sprint
(Mo.
1988),
S.W.2d 670
which found Bower to be in direct
App.
conflict with Missouri law established in
DeLuxe
Morsinkhoff v.
&
Laundry
Dry Cleaning
(Mo.
The conflict between the court’s decision and the law today of at-will is further demonstrated the manner in by which the addresses the majority damages. issue of Goff- claim damage entirely allegation Hamel’s is based that 3, 1993, on October had learning appellee withdrawn its offer of she was unable to find employment, “comparable” full-time employment May until 1995. The majority that under acknowledges theory which it recovery recog- case, nizes in this damages cannot “based upon wages would have in the earned prospective employment because the was terminable at will.” Following the same logic, damages based loss upon wage during interval any between withdrawal of and the securing of “comparable” would not be recover- able, because the promised could have been termi- Thus, nated either party time after it had begun. record reflects no factual basis which damages claimed by Goff-Hamel could be awarded under the which remedy majority recognizes.
[33] reasoned
be the better
I consider to
I
follow what
would
an
view,
to remedy
not be utilized
may
estoppel
that promissory
See,
v. Roche
White
at-will employment.
unfulfilled
Laboratories,
(D.S.C.
1212
807 F. Supp.
Biomedical
Swanson,
For these of the district court. J.,
Connolly,
*13
in this dissent.
joins
Rug Cleaner,
State of Nebraska
ex rel.
Acme
Roger
Mary
Pettit,
relators,
Likes,
W.
G.
v. Honorable
Douglas
Judge,
County, Nebraska,
District Court
respondent.