## Facts

- Real-estate developers planned a retail center (Village Pointe) in Omaha, Nebraska, and discussed adding a movie theater with a theater operator.
- The parties exchanged and signed letters of intent describing proposed lease terms, while continuing negotiations on a final lease.
- The later letter of intent expressly stated it was not a lease or an option to lease and contemplated that its terms would control only if a later lease were executed.
- The theater operator repeatedly stated any deal required approval from its board of directors.
- The city approved the overall development plan, including the theater site, but the operator later withdrew before any final lease was executed.
- The developers later contracted with a different theater company and sued the original operator for express contract, implied contract, and promissory estoppel, and challenged costs awarded to the operator.

## Issues

1. Whether the letters of intent and related communications formed an enforceable express contract or option to lease under Nebraska law.
2. Whether the parties’ conduct created an implied-in-fact contract despite the nonbinding language and ongoing negotiations.
3. Whether promissory estoppel applied based on alleged promises and the developers’ claimed reliance.
4. Whether the district court abused its discretion by taxing costs against the developers under Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920.

## Decision

- Affirmed dismissal of the express-contract claim for failure to state a claim.
- Affirmed summary judgment for the operator on implied contract and promissory estoppel.
- Affirmed the award of taxable costs to the operator as the prevailing party.

## Legal Principles

- Under Nebraska law, an express contract requires a definite offer and an absolute and unconditional acceptance; conditions precedent must be satisfied for a duty to arise.
- A letter of intent that expressly disclaims being a lease or option, and that anticipates a later executed lease, is strong evidence the parties did not intend to be bound at that stage.
- An implied-in-fact contract cannot be inferred where the parties’ writings and manifested intent expressly negate present intent to be bound on the asserted terms.
- Promissory estoppel requires a clear and definite promise and reasonable reliance; conditional statements and explicit reservations (such as required board approval) generally do not constitute enforceable promises.
- Under Rule 54(d)(1), costs are presumptively awarded to the prevailing party; the losing party bears the burden to show an abuse of discretion, and taxable costs are limited to the categories in § 1920.

## Conclusion

Because the parties’ documents disclaimed a binding lease or option and conditioned any commitment on board approval that never occurred, the developers could not establish an express contract, implied contract, or promissory estoppel, and the operator was entitled to recover taxable costs as the prevailing party.


168th & Dodge, L.P. v. Rave Reviews Cinemas, LLC, 501 F.3d 945 (8th Cir. 2007)