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06/28/2019 09:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                             IN RE ESTATE OF RYAN
                                               Cite as 302 Neb. 821




                              In re Estate of Wayne L. Ryan, deceased.
                           Shadow R idge Limited Partnership, a Nebraska
                           limited partnership, appellant, v. Steven Ryan,
                              Personal R epresentative of the Estate of
                                 Wayne L. Ryan, deceased, appellee.
                                                  ___ N.W.2d ___

                                        Filed April 5, 2019.     No. S-18-799.

                 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 reason-
                    able 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 sub-
                    stantive 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 can-
                    not 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 enforce-
                    ment of a promise.
                 8. Forbearance: Estoppel. Under the doctrine of promissory estoppel, a
                    promise which the promisor should reasonably expect to induce action
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                          IN RE ESTATE OF RYAN
                            Cite as 302 Neb. 821

    or forbearance is binding if injustice can be avoided only by enforce-
    ment 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. Affirmed in part, and in part
reversed and remanded for further proceedings.
  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, P.C., L.L.O., for appellee.
  Heavican, C.J.,          Cassel,     Stacy,     Funke,      Papik,    and
Freudenberg, JJ.
  Cassel, J.
                        INTRODUCTION
   In a decedent’s probate proceeding, a golf course partner-
ship 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 partner-
ship is not a charitable, educational, or like institution, it failed
to state a claim based on contract. But because it alleged hav-
ing 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.
                   BACKGROUND
                  Pledge Agreement
  In 2016, Wayne L. Ryan entered into a written “Pledge
Agreement” with Shadow Ridge Limited Partnership, a
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                     IN RE ESTATE OF RYAN
                       Cite as 302 Neb. 821

Nebraska limited partnership (Shadow Ridge). The signa-
ture 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 para-
mount 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 trans-
fers 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 speci-
fied litigation in Sarpy County, Nebraska, and the eventual
sale of the stock or assets of “Streck, Inc.,” to an indepen-
dent third party for fair value. The other condition was the
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                       IN RE ESTATE OF RYAN
                         Cite as 302 Neb. 821

agreement of Shadow Ridge “to pay the anticipated trans-
fer 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 con-
tingent 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 speci-
fied 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 agree-
ment concerning the Sarpy County case had not occurred, but
asserted that it would likely occur prior to the distribution of
the estate.

                             Dismissal
   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 prerequi-
site before the intended gifts could be made by . . . Ryan. [He]
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                         IN RE ESTATE OF RYAN
                           Cite as 302 Neb. 821

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.

                 ASSIGNMENTS OF ERROR
  Shadow Ridge assigns that the court erred in dismissing its
contract claim based upon the pledge agreement and in dis-
missing its claim based upon a promissory estoppel theory.

                  STANDARD OF REVIEW
   [1] An appellate court reviews a trial court’s order grant-
ing 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.1

                           ANALYSIS
                  Principles of Law R egarding
                        Motion to Dismiss
   [2,3] We begin by recounting principles governing motions
to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6). A
motion to dismiss for failure to state a claim tests the legal suf-
ficiency of the complaint, not the claim’s substantive merits.2
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.3 In cases
in which a plaintiff does not or cannot allege specific facts
showing a necessary element, the factual allegations, taken as
true, are nonetheless plausible if they suggest the existence of

1
    See Sandoval v. Ricketts, ante p. 138, 922 N.W.2d 222 (2019).
2
    See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109
    (2017).
3
    Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                         IN RE ESTATE OF RYAN
                           Cite as 302 Neb. 821

the element and raise a reasonable expectation that discovery
will reveal evidence of the element or claim.4 At this stage,
the question boils down to whether, after accepting the well-
pleaded facts as true, Shadow Ridge’s petition stated either a
claim on a contract or a claim for promissory estoppel.
                        Contingent Claims
   The transfers of money set forth in the pledge agreement
were subject to two conditions. The estate argues that Shadow
Ridge’s claims fail due to the nonoccurrence of conditions
precedent. Here, we disagree.
   A condition precedent includes a condition which must be
fulfilled before a duty to perform an existing contract arises.5
There is no dispute that the conditions set forth in the agree-
ment have not occurred. But this was not an action against
Ryan to compel payment of an obligation; here, Shadow Ridge
seeks to preserve its claims against Ryan’s estate in the probate
proceeding resulting from Ryan’s death.
   [4] The Nebraska Probate Code requires that all claims,
whether absolute or contingent, be presented within certain
time periods or be barred against the estate.6 Neb. Rev. Stat.
§ 30-2492 (Reissue 2016) specifically addresses the disposition
of contingent claims:
         (a) If a claim which will become due at a future time or
      a contingent or unliquidated claim becomes due or certain
      before the distribution of the estate, and if the claim has
      been allowed or established by a proceeding, it is paid in
      the same manner as presently due and absolute claims of
      the same class.
         (b) In other cases the personal representative or, on
      petition of the personal representative or the claimant in a

4
    Burklund v. Fuehrer, 299 Neb. 949, 911 N.W.2d 843 (2018).
5
    Weber v. North Loup River Pub. Power, 288 Neb. 959, 854 N.W.2d 263
    (2014).
6
    See Neb. Rev. Stat. § 30-2485 (Reissue 2016).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                           IN RE ESTATE OF RYAN
                             Cite as 302 Neb. 821

      special proceeding for the purpose, the court may provide
      for payment as follows:
         (1) if the claimant consents, he may be paid the pres-
      ent or agreed value of the claim, taking any uncertainty
      into account;
         (2) arrangement for future payment, or possible pay-
      ment, on the happening of the contingency or on liqui-
      dation may be made by creating a trust, giving a mort-
      gage, obtaining a bond or security from a distributee,
      or otherwise.
This statute treats contingent claims differently, depending
upon whether the contingency is resolved before distribution
of the estate. If it is, the claim is paid pursuant to the rules
governing payment of claims of the same class.7 If not, the
statute anticipates that the probate court will craft an equitable
solution to dispose of the contingent claim.8
   Here, it is not clear which subsection of § 30-2492 may
ultimately apply. Shadow Ridge alleged that the contingency
of the resolution of the litigation would likely occur prior to
distribution of the estate. But it asserted that if the contin-
gency had not occurred prior to the distribution of the entire
estate, the claim should be paid under § 30-2492(b). To the
extent Shadow Ridge argues that it must then be paid even
if the contingencies have not been met, we disagree. If a
claim’s contingencies remain unmet at the time of an estate’s
distribution, § 30-2492(b) provides a probate court with a
wide range of tools to achieve a just result. And depending
upon the situation then, a contingency may be so unlikely
of being performed as to justify only minimal provision for
future payment.
   Regardless of which subsection may apply, our probate code
compelled Shadow Ridge to assert its claim against the estate
even though it remained contingent. Thus, the contingencies’

7
    See Neb. Rev. Stat. § 30-2487 (Reissue 2016) (classifying claims).
8
    See § 30-2492(b).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                           IN RE ESTATE OF RYAN
                             Cite as 302 Neb. 821

unfulfilled status did not automatically defeat the claim. We
turn to the alternative theories raised by Shadow Ridge.
                             Contract
   Typically, a promise to make a gift in the future is not
legally enforceable.9 Long ago, this court recognized that a
promise to make a gift in the future is ordinarily unenforceable,
even when put in the form of a promissory note.10 But in chari-
table giving cases, courts frequently find such future promises
to be enforceable as a pledge or subscription.11 “A ‘subscription
contract’ or ‘subscription,’ as it is often called, is not a gift, but
is a contract, oral or written, by which one engages to contrib-
ute a sum of money for a designated purpose, gratuitously, as
in the case of subscribing to a charity.”12
   [5] Here, Shadow Ridge sought to have the pledge agree-
ment enforced as a contract. A contract requires an offer,
acceptance, and consideration.13 The general rule is that a
subscription to a charitable or other institution must be sup-
ported by a consideration in order to be a binding obliga-
tion.14 But 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 success-
fully defended on the ground of lack of consideration.15 In such
cases, although the note is characterized as a gift or donation,
the expenditure of money or assumption of liability by the

 9
     See Ferer v. Aaron Ferer & Sons Co., 273 Neb. 701, 732 N.W.2d 667
     (2007).
10
     See Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365 (1898).
11
     See William A. Drennan, Charitable Naming Rights Transactions: Gifts or
     Contracts? 2016 Mich. St. L. Rev. 1267 (2016).
12
     83 C.J.S. Subscriptions § 1 at 615 (2010).
13
     See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708
     N.W.2d 235 (2006).
14
     Trustees of Baker University v. Clelland, 86 F.2d 14 (8th Cir. 1936).
15
     Ricketts v. Scothorn, supra note 10.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                           IN RE ESTATE OF RYAN
                             Cite as 302 Neb. 821

donee in reliance on the promise constitutes a valuable and
sufficient consideration.16
   [6] Charitable subscriptions often serve the public inter-
est by enabling projects which otherwise could not occur and
are thus construed, if reasonably possible, to support recov-
ery.17 This court has found valid consideration for a pledge
or subscription note to an educational institution18 and to a
church.19
   Shadow Ridge did not plead that it is a “church, college, or
other like institution.”20 Rather, it is a Nebraska limited part-
nership that operates a golf course known as Shadow Ridge
Country Club. There is no allegation that Shadow Ridge is
open to the public or is a nonprofit entity. By definition, a
country club often has restricted membership.21
   Our research did not uncover any cases addressing the
enforceability of a pledge agreement in favor of a for-profit
entity. Shadow Ridge cited an Illinois case 22 involving a golf
and country club, but it is distinguishable. In that case, which
involved securities regulation, the promisor already held a life
membership in the club and pledged money to protect his own
property. There is no allegation that Ryan held a similar owner-
ship interest in Shadow Ridge.
   We conclude that the absence of cases enforcing pledge
agreements in favor of profitmaking entities is not mere

16
     See id.
17
     See 83 C.J.S., supra note 12, § 3.
18
     See, Nebraska Wesleyan University v. Estate of Couch, 170 Neb. 518, 103
     N.W.2d 274 (1960); In re Estate of Luce, 137 Neb. 846, 291 N.W. 562
     (1940); In re Estate of Griswold, 113 Neb. 256, 202 N.W. 609 (1925).
19
     See Continental Co. v. Eilers, 134 Neb. 278, 278 N.W. 497 (1938).
20
     See Ricketts v. Scothorn, supra note 10, 57 Neb. at 56, 77 N.W. at 366.
21
     “Country club,” Oxford English Dictionary Online, http://www.oed.com/
     view/Entry/381763 (last visited Mar. 29, 2019).
22
     Blomgren v. Cowley, 282 Ill. App. 166 (1935).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                           IN RE ESTATE OF RYAN
                             Cite as 302 Neb. 821

happenstance. “[F]rom early times academies, colleges, mis-
sionary enterprises, churches, and other similar institutions for
the public welfare, have been established and often maintained
upon private donations and subscriptions.”23 Some early cases
advanced the view that “a subscription to charity was purely
gratuitous,—a nudum pactum, not enforceable at law,—and
performance was left to the conscience and honor of the
subscriber.”24 But many courts, including this court, began
to enforce eleemosynary subscriptions.25 This change flowed
from a commendable regard for public policy and a desire to
give stability and security to institutions dependent on chari-
table gifts.26
   Because Shadow Ridge is not an entity for the public
good like a charitable or educational institution, its petition
premised on contract principles failed to state a claim upon
which relief may be granted. We conclude the probate court
did not err in granting the motion to dismiss as to the con-
tract claim.

                      Promissory Estoppel
   [7,8] Shadow Ridge alternatively alleged that its claim
should be granted under a promissory estoppel theory. Recovery
on a theory of promissory estoppel is based upon the principle
that injustice can be avoided only by enforcement of a prom-
ise.27 Under the doctrine of promissory estoppel, a promise
which the promisor should reasonably expect to induce action
or forbearance is binding if injustice can be avoided only by
enforcement of the promise.28

23
     Annot., 38 A.L.R. 868, 869 (1925).
24
     Id. at 869.
25
     See In re Estate of Griswold, supra note 18.
26
     See 38 A.L.R., supra note 23.
27
     Blinn v. Beatrice Community Hosp. & Health Ctr., supra note 13.
28
     Id.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                      IN RE ESTATE OF RYAN
                        Cite as 302 Neb. 821

   [9] 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.29 Under this theory,
the main focus is on reasonable reliance. And here, we are
reviewing only a dismissal for failure to state a claim.
   At this stage, we must view the facts alleged by Shadow
Ridge as true and draw all reasonable inferences in its favor.
Shadow Ridge alleged that Ryan promised to give it $20 mil-
lion “for the purposes specified in the Pledge Agreement.” It
claimed that Ryan reasonably expected the promise of money
to induce Shadow Ridge to incur expenses for the purposes
identified in the pledge agreement, that it was foreseeable
Shadow Ridge would incur substantial expenses in reliance
upon Ryan’s promise, and that Shadow Ridge reasonably relied
on the promise to incur substantial expenses.
   Shadow Ridge’s last allegation—that it had incurred sub-
stantial expenses in reasonable reliance upon Ryan’s pledge
agreement—is the heart of this theory. Based upon its assertion
of facts supporting promissory estoppel, Shadow Ridge has
adequately stated a claim on its alternative pleading. The pro-
bate court erred in dismissing the claim in the petition based on
promissory estoppel.

                          CONCLUSION
   Because Shadow Ridge is not a charitable, educational, or
like institution, its attempt to enforce the pledge agreement as
a contract fails. And we affirm the probate court’s order to that
extent. However, accepting as true all well-pleaded facts and
drawing all reasonable inferences in Shadow Ridge’s favor,
Shadow Ridge has stated a claim upon which relief may be
granted under a promissory estoppel theory. Of course, the
truth of Shadow Ridge’s allegations, as well as any defenses

29
     Id.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                     IN RE ESTATE OF RYAN
                       Cite as 302 Neb. 821

the estate may assert, has not been determined. Contingencies
admittedly exist. Our decision today should not be misun-
derstood to mean that Shadow Ridge’s claim must ultimately
prevail. Its success or failure depends upon the proceedings
that will follow our remand. We reverse the probate court’s dis-
missal as to the promissory estoppel theory of Shadow Ridge’s
claim and remand the cause for further proceedings.
	A ffirmed in part, and in part reversed and
                  remanded for further proceedings.
   Miller-Lerman, J., not participating.
