PER CURIAM:
In this appeal, we address the measure of damages applicable to promissory estoppel claims. We adopt a flexible approach as suggested in the Restatement (Second) of Contracts and apply the same factors that bear on promissory estoppel relief to the remedy afforded by the breach. The determination of the appropriate measure of damages in any given case turns on considerations of what justice requires and the foreseeability and certainty of the particular damages award sought. We further conclude that the presumptive measure of damages for a general contractor that reasonably relies upon a subcontractor's unfulfilled promise is the difference between the nonperforming subcontractor's original bid and the cost of the replacement subcontractor's performance.
This appeal arises from a dispute between appellant Dynalectric Company of Nevada, Inc., a subcontractor, and respondent Clark and Sullivan Constructors, Inc. (C & S), a general contractor, concerning a public works project (the Project). The Project involved the expansion of the University Medical Center (UMC) in Las Vegas. In 2004, UMC solicited bids for the Project. C & S, interested in serving as the general contractor for the Project, sought bids from subcontractors. Dynalectric submitted a bid to C & S to perform the electrical work for the Project and repeatedly assured C & S of the accuracy of its bid. C & S incorporated Dynalectric's bid into its bid to UMC for the general contract (Prime Contract). C & S was the low bidder, and UMC awarded it the Prime Contract. C & S notified Dynalectric. Subsequently, Dynalectric repudiated its obligations
C & S then sued Dynalectric in district court under various theories of liability, including breach of contract, promissory estoppel, and breach of the covenant of good faith and fair dealing. Dynalectric countersued for, among other theories, breach of an implied contract, fraud, and violation of NRS 338.141.
Following a 12-day bench trial, the district court entered a judgment for C & S on its promissory estoppel claim and rejected each of Dynalectric's counterclaims. The district court awarded C & S $2,501,615 in damages, which represents the difference between Dynalectric's bid ($7,808,983) and the amount C & S paid the three replacement contractors to complete the work ($10,310,598). Dynalectric appealed.
Dynalectric contends that the district court applied the incorrect measure of damages.
Whether a party is "entitled to a particular measure of damages is a question of law" reviewed de novo. Toscano v. Greene Music, 124 Cal.App.4th 685, 21 Cal.Rptr.3d 732, 736 (2004).
Broadly speaking, Nevada follows the doctrine of promissory estoppel articulated in the Restatement (Second) of Contracts. See Vancheri v. GNLV Corp., 105 Nev. 417, 421, 777 P.2d 366, 369 (1989).
The Restatement describes promissory estoppel as follows:
Restatement (Second) of Contracts § 90(1) (1981).
Comment delaborates further upon the remedies available for promissory estoppel:
Id. § 90 cmt. d (emphasis added).
Thus, under the Restatement, an award of expectation damages
Following the lead of the Restatement, we hold that the district court may award expectation, reliance, or restitutionary damages for promissory estoppel claims.
We now consider whether the district court used the appropriate measure of damages when it awarded C & S promissory estoppel damages representing the difference between Dynalectric's bid and the amount that the three replacement contractors charged C & S to complete the same work.
Drennan v. Star Paving Company, 51 Cal.2d 409, 333 P.2d 757, 761 (1958), the seminal promissory estoppel case in the subcontract bidding context, illustrates how damages should typically be computed in this situation. In Drennan, a general contractor
In the decades since Drennan, courts have consistently and uniformly applied the same measure of damages for promissory estoppel claims arising from a subcontractor's repudiation of its obligations to a general contractor. See, e.g., John Price Associates, Inc. v. Warner Elec, Inc., 723 F.2d 755, 756-57 (10th Cir.1983) (appropriate measure of damages for general contractor's promissory estoppel claim was the difference between nonperforming electrical subcontractor's bid and the bid of the substituted subcontractor that completed the work); Preload Technology v. A.B. & J. Const. Co., Inc., 696 F.2d 1080, 1091, 1093 (5th Cir.1983) (damages were properly calculated as the difference between the original subcontractor's bid and the replacement subcontractor's bid); Janke Const. Co., Inc. v. Vulcan Materials Co., 527 F.2d 772, 780 (7th Cir.1976) (general contractor was entitled to award representing the difference between subcontractor's quoted prices for certain construction materials and the cost of replacement materials); Double AA Builders v. Grand State Const., 210 Ariz. 503, 114 P.3d 835, 837, 843 (Ariz.Ct.App.2005) (upholding award consisting of the difference between nonperforming insulation subcontractor's bid and the cost of a replacement subcontractor); Riley Bros. Constr., Inc. v. Shuck, 704 N.W.2d 197, 204 (Minn.Ct.App. 2005) (damages were properly computed as the difference between masonry subcontractor's unperformed bid and the amount paid to two replacement subcontractors to complete the work); Branco Enterprises v. Delta Roofing, 886 S.W.2d 157, 158, 161 (Mo.Ct. App.1994) (award based upon the difference between roofing subcontractor's bid and the amount a substitute subcontractor charged was necessary to prevent injustice). We see no reason to depart from the well-established measure of damages used in Drennan.
Interestingly, despite the consensus that the measure of damages adopted in Drennan is appropriate in the type of situation presented here, courts have not definitively labeled this measure "expectation" or "reliance" damages. See Edward Yorio & Steve Thel, The Promissory Basis of Section 90, 101 Yale L.J. 111, 146 (1991) (noting the ambiguity in the caselaw with respect to classifying this measure of damages). Scholars appear to agree, however, that the Drennan measure of damages is, in fact, expectation damages. See id. (concluding that this measure represents expectation damages, even if occasionally labeled "reliance damages"); W. David Slawson, The Role of Reliance in Contract Damages. 76 Cornell L.Rev. 197, 221-22 (1990) (discussing the near impossibility of proving true reliance damages in the subcontract-bidding context and indicating that the Drennan measure of damages represents expectation damages); Charles L. Knapp, Reliance in the Revised Restatement: The Proliferation of Promissory Estoppel, 81 Colum. L.Rev. 52, 57 n.35 (1981) (noting the ambiguity in the caselaw on this issue and stating that an award of damages based upon the difference between the nonperforming subcontractor's bid and the amount paid to a replacement subcontractor is "the classic expectation remedy").
As previously noted, Dynalectric's bid was for $7,808,983. C & S was forced to pay $10,310,598 to three replacement subcontractors to complete the work that Dynalectric refused to perform. Thus, the district court awarded C & S $2,501,615, the difference between Dynalectric's bid and the amount C & S paid to the replacement subcontractors. This measure of damages placed C & S in
It is plain that justice required this measure of damages and that the damages the district court awarded were foreseeable and reasonably certain. As the district court found, Dynalectric made an unequivocal promise by submitting a bid to C & S for the electrical subcontracting of the Project. Dynalectric thereafter repeatedly assured C & S of the accuracy of the bid that it had submitted. The record demonstrates that Dynalectric fully anticipated that C & S would rely on its bid by incorporating it into its own bid for the Prime Contract. The record also shows that Dynalectric is an experienced and sophisticated subcontractor that could readily anticipate that C & S would be forced to use replacement electrical subcontractors at a higher cost to complete the work that it refused to perform. Finally, the damages that the district court awarded were reasonably certain because C & S presented detailed evidence showing that $2,501,615 represented the difference between Dynalectric's original bid and the amount that the three replacement subcontractors charged.
The district court correctly determined that C & S was entitled to expectation damages. Justice required using this measure of damages, and the damages that the district court awarded were foreseeable and reasonably certain. Accordingly, we affirm the district court's judgment granting C & S expectation damages.