The Invited-Error Bar to Mid-Litigation Shifts in Contract-Damages Theories: Nebraska Supreme Court Clarifies Party Concessions in D&M Roofing & Siding v. Distribution, Inc. (319 Neb. 707)

1. Introduction

The Nebraska Supreme Court’s decision in D&M Roofing & Siding v. Distribution, Inc. tackles two recurring problems in modern civil practice: (1) how to interpret “cancellation fee” clauses whose text appears facially straightforward yet yields harsh results, and (2) when (and whether) a litigant may abandon a position conceded during summary-judgment briefing. Although the case arose from a relatively common construction dispute, the Court fashioned a precedent of broader significance: once a party invites a legal conclusion by conceding a pivotal point of law or damages theory in summary-judgment submissions, that party is estopped from reversing course on appeal even if the concession is not a “judicial admission” of fact.

The decision addresses a contract between D&M Roofing & Siding, Inc. (“D&M”), and Distribution, Inc. (“Distribution”), under which D&M agreed to investigate storm damage to Distribution’s warehouse and—if the insurer approved repairs—to perform the work. When Distribution hired another contractor, D&M sued for breach of contract and unjust enrichment. Key issues surfaced:

Does the “cancellation fee” clause, which grants 20 % of the proceeds paid “for the work done by D&M,” permit any recovery when D&M performed no repair work?
May D&M, after conceding in the first summary-judgment round that its damages were limited to the cancellation fee, pursue lost-profit damages in a second summary-judgment attempt and on appeal?
Is the concession a binding “judicial admission,” and—if not—does some other doctrine bar the change of course?

2. Summary of the Judgment

The Court (Papik, J.) affirmed—without dissent—the district court’s grant of summary judgment in favor of Distribution. The opinion:

Held the cancellation-fee language unambiguous; because D&M performed “no work,” 20 % of “zero” equals zero.
Rejected D&M’s attempt to introduce extrinsic evidence (its president’s deposition) as barred for unambiguous contracts.
Ruled that D&M’s prior concession in summary-judgment briefing that its damages were limited to the cancellation fee was not a “judicial admission of fact,” but nevertheless triggered the invited-error doctrine, precluding D&M from complaining when the court accepted the limitation it had urged.
Therefore, with no available damages theory (and with the unjust-enrichment count already dismissed), the breach-of-contract claim failed as a matter of law.

3. Analysis

3.1 Precedents Cited

Seemann v. Seemann, 318 Neb. 643 (2025) – No contractual provision should be interpreted as meaningless.
Timberlake v. Douglas County, 291 Neb. 387 (2015) – Courts avoid interpretations rendering clauses superfluous.
Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434 (2018) – Extrinsic evidence inadmissible when the contract is unambiguous.
Ray Tucker & Sons v. GTE Directories Sales Corp., 253 Neb. 458 (1997) – Rare instance permitting extrinsic evidence where the document contained an obvious reference to omitted language; distinguished here.
Clemens v. Emme, 316 Neb. 777 (2024) – Defines “judicial admission.”
Lizeth E. v. Roberto E., 317 Neb. 971 (2024) and Nebraska Republican Party v. Shively, 311 Neb. 160 (2022) – Explicate the invited-error rule.
City of Omaha Human Relations Dept. v. City Wide Rock & Excavating Co., 201 Neb. 405 (1978) – Parties’ stipulation on standard of review invoked invited error for questions of law.
Keiser v. Keiser, 310 Neb. 345 (2021) – Invited error applies even to errors of law.
Oltman v. Parde, 32 Neb. App. 725 (2024) – Nominal damages automatically follow breach; noted but inapplicable since not pleaded.

3.2 Legal Reasoning

Cancellation-Fee Clause Interpretation
The clause states Distribution must pay “a fee … equivalent to 20 % of the proceeds paid by the insurance company for the work done by D&M” if Distribution does not hire D&M after insurer approval. The plain language pivots on work done by D&M. Because no repair work was performed, the Court simply applied the arithmetic result—20 % of zero. The Court rejected arguments that this reading made the clause illusory; it could still apply where partial work was performed but completion was blocked.
Ambiguity and Extrinsic Evidence
D&M argued the clause contained an inadvertent omission (“work to be done”). Under Nebraska law, ambiguity exists only when the text reasonably supports two conflicting meanings; here, the contract supported only one. Without ambiguity, deposition testimony about the parties’ subjective intent was inadmissible.
Judicial Admission vs. Invited Error
The Court carefully separated two doctrines:
- “Judicial admissions” bind only facts, not legal theories.
- D&M’s concession—“breach-of-contract damages are limited to the cancellation-fee provision”—is a legal position, not fact.
Because it was not a judicial admission, D&M was theoretically free to retract it unless another doctrine applied. That doctrine was invited error: a party may not (i) urge the court to adopt a position, (ii) obtain an adverse ruling based on that position, and then (iii) claim the position was error. Thus, although D&M tried in a second summary-judgment motion to pivot to lost-profit damages, the earlier concession barred the shift.
No Nominal-Damages Rescue
The Court noted that had D&M pleaded nominal damages, it could have preserved a breach-of-contract remedy despite the fee clause. Because D&M elected specific monetary theories and never requested nominal damages, the claim failed in total.

3.3 Likely Impact of the Decision

The decision’s influence will reverberate across Nebraska civil practice (and may be persuasive elsewhere) in at least four respects:

Invited Error Extended to Summary-Judgment Concessions
The Court makes explicit that a party’s concession in a statement of undisputed facts can constitute invited error, foreclosing post-summary-judgment flip-flops—even when the concession concerns legal theories rather than facts.
Heightened Care in Drafting Rule § 6-1526 Statements
Nebraska litigants will treat fact statements and responses with the same caution as formal pleadings, understanding they may truncate appellate arguments if phrased too broadly.
Contract Drafting for Contingent Fee Clauses
Businesses will scrutinize “cancellation” or “early-termination” clauses to ensure the compensation trigger (e.g., “work performed” vs. “work to be performed”) accurately captures the parties’ expectations.
Nominal Damages as a Safety Net
The case serves as a reminder to plead nominal damages in contract actions; doing so preserves a remedy even if specific theories wash out.

4. Complex Concepts Simplified

Summary Judgment: A procedural device allowing courts to decide a case without trial when no genuine dispute of material fact exists and one party is entitled to judgment as a matter of law.
Judicial Admission: An in-court concession of a factual proposition; no evidence is needed to prove the admitted fact, and the admitting party cannot contradict it.
Invited Error Doctrine: A rule preventing a party from complaining on appeal about an error the party induced the trial court to make. It applies to both factual and legal propositions.
Ambiguous Contract: A contract term is ambiguous only when it reasonably supports two or more conflicting interpretations. Ambiguity permits extrinsic evidence; clarity forecloses it.
Extrinsic Evidence: Material (e.g., oral statements, prior drafts) outside the four corners of the document, used to explain or supplement contractual language. Admissible only if the language is ambiguous.
Cancellation Fee: A contractual payment required when one party cancels or refuses to proceed with an agreed transaction. Its enforceability turns on clear drafting and, sometimes, liquidated-damages principles.

5. Conclusion

D&M Roofing & Siding v. Distribution, Inc. crystallizes two doctrinal lessons for Nebraska lawyers:

Courts will enforce the plain language of a contract—even if the result seems inequitable—unless the text is genuinely ambiguous.
Litigants must live with the legal positions they advance in dispositive-motion practice; the invited-error doctrine forecloses second chances when a party’s own concession shapes an adverse ruling.

By distinguishing “judicial admission” from “invited error” while affirming a zero-damages verdict despite a proven breach, the Court provides a cautionary roadmap: draft carefully, plead comprehensively, and treat every summary-judgment concession as potentially case-dispositive.

The Invited-Error Bar to Mid-Litigation Shifts in Contract-Damages Theories: Commentary on D&M Roofing & Siding v. Distribution, Inc., 319 Neb. 707 (2025)