Follow up: Nebraska Supreme Court tells the Bar and lower courts to look it up in their Wright and Miller next time they question our federalized civil procedure rules. Rule of Pleading 15(b) {amendment of pleadings after additional issues tried by implied consent} requires more than allowing evidence pertinent to both the pleaded and unpleaded issues; evidence admitted must relate solely to unpleaded issues for amendment by consent to arise; Court of Appeals ruling from April reversed; J. Gerrard agrees trial is necessary on Plaintiff's promissory estoppel claim, J. Stephan and Connolly dissenting in part Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809 January 6, 2006. No. S-04-079 Plaintiff sued his former employer the hospital for breach of contract and detrimental reliance when the hospital dimissed him. Trial court agreed there was no issue of fact as to the contract issue or promissory estoppel issueand entered summary judgment. Court of appeals reversed because it found deposition testimony offered on summary judgment presented question of whether the parties had modified their at will employment contract, even though this was beyond the scope of the pleadings. The Court of Appeals found that the admission of evidence beyond the pleadings amounted to implied amendment. Supreme Court reverses: The key inquiry of rule 15(b) for "express or implied consent" is whether the parties recognized that an issue not presented by the pleadings entered the case at trial. Missouri Housing Development Com'n v. Brice, 919 F.2d 1306 (8th Cir. 1990):

To satisfy rule 15(b), evidence to which no objection is raised must be directed solely at the unpleaded issue, in order to provide a clear indication that the opposing party would or should have recognized that a new issue was being injected into the case. The record here simply fails to satisfy that standard. The Court of Appeals erred in concluding that the pleadings in this case had been constructively amended by implied consent pursuant to rule 15(b).

Because the Supreme Court upholds summary judgment for the Hospital on the breach of contract claim it finds the issue of the statute of frauds moot, although it notes the defendant could have made it an issue if its attorneys had done their home work:

Beatrice conceded, in its appellate brief, that in light of the district court's conclusion that no oral contract existed, the statute of frauds issue was moot. Beatrice has not suggested that the statute of frauds defense applies to a promissory estoppel cause of action where there is no otherwise valid contract. Compare, Rosnick, supra; Farmland Service Coop, Inc. v. Klein, 196 Neb. 538, 244 N.W.2d 86 (1976) (where otherwise binding contract is barred by statute of frauds, promissory estoppel will not lie to circumvent statute of frauds).

Supreme Court leaves the door open however to turn many employment at will relationships into promissory estoppel suits: the Nebraska Supreme Court rejects the Restatement rule that promissory estoppel requires a promise sufficiently definite to form a contract if accepted. there is no requirement of "definiteness" in an action based upon promissory estoppel. Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793 (1990).the law in Nebraska is that a promissory estoppel action may be based on an alleged promise that is insufficiently definite to form a contract, but upon which the promisee's reliance is reasonable and foreseeable.Whorley v. First Westside Bank, 240 Neb. 975, 485 N.W.2d 578 (1992) Dissenting Justice Stephan, with Connolly argue that opening the door to promissory estoppel claims in employment cases will turn every adverse employment action into a lawsuit J. Stephan, dissenting in Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999)argues that when an employer hires and employee at will, a court should not utilize the principle of promissory estoppel to impose the subjective expectations of either party upon the other. Justices Stephan dn Connolly would affirm the judgment of the district court dismissing the case entirely.