GFF Corp. v. Associated Wholesale Grocers, Inc., 96-6287

• Decision Date: 25 November 1997
• Docket Number: No. 96-6287,96-6287
• Citation: 130 F.3d 1381
• Parties: 97 CJ C.A.R. 2980 GFF CORPORATION, an Oklahoma Corporation, Plaintiff-Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., a Missouri Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1381

130 F.3d 1381

97 CJ C.A.R. 2980

GFF CORPORATION, an Oklahoma Corporation, Plaintiff-Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., a Missouri Corporation,

Defendant-Appellee.

No. 96-6287.

United States Court of Appeals, Tenth Circuit.

Nov. 25, 1997.

Andrew L. Walding (Mark K. Stonecipher, with him on the brief), Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, for Plaintiff--Appellant.

William F. High (James M. Warden and Linda S. Skaggs, with him on the brief), Blackwell, Sanders, Matheny, Weary & Lombardi, Overland Park, KS, for Defendant--Appellee.

Before BRORBY, McWILLIAMS and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

GFF Corporation (GFF) appeals from the dismissal of its breach of contract claim and the grant of summary judgment on its fraud claim. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

During 1994, Associated Wholesale Grocers, Inc. (AWG) prepared to buy a number of grocery stores from Homeland Stores, Inc. (Homeland) for resale to members or potential members. GFF expressed interest in purchasing a Homeland store located in Norman, Oklahoma, from AWG. At a meeting in Oklahoma City on December 14 representatives of AWG provided GFF's president with a typewritten bid form, in the form of a letter, to be executed and returned to AWG. On or about December 21, GFF executed the December 14 letter and submitted its $350,000 bid on the Norman store.

On January 17, 1995, AWG informed GFF by telephone that it was the highest bidder and would get the store. On January 19, after telling Pratt Foods the amount of GFF's bid, AWG received a $400,000 bid from Pratt Foods. AWG called GFF, and advised them that AWG had received a higher bid for the Norman store, and later gave GFF the opportunity to rebid and beat the Pratt Foods bid. GFF chose not to rebid but to stand on its rights based on the claimed contract to sell for $350,000.

GFF brought suit claiming breach of contract and fraud. AWG moved for judgment on the pleadings on the contract claim pursuant to Federal Rule of Civil Procedure 12(c), and both parties briefed the matter. GFF did not formally incorporate by reference or append the letter to its complaint, but attached it as an exhibit to its brief in opposition to the 12(c) motion. AWG also attached the letter as an exhibit to its brief in support of the 12(c) motion. GFF then filed an amended complaint which rendered the 12(c) motion moot. Again, GFF did not formally incorporate by reference or append the letter to its amended complaint, but frequently referred to it and alleged it satisfied the statute of frauds.

AWG moved to dismiss the contract claim pursuant to Rule 12(b)(6), arguing that the letter was insufficient to satisfy the statute of frauds. Both parties essentially incorporated by reference their briefs on the 12(c) motion. The district court granted AWG's 12(b)(6) motion, expressly considering the letter. AWG then moved for summary judgment pursuant to Rule 56 on the fraud claim, and the district court granted that motion as well. GFF moved for reconsideration of the dismissal of its contract claim, arguing for the first time that the court should have applied auction law principles to the case, and that newly discovered evidence supported an argument that several documents together satisfied the statute of frauds. The district court denied the motion.

On appeal, GFF argues that the district court erred in dismissing the contract claim (1) by not converting the 12(b)(6) motion into one for summary judgment based on its consideration of outside material, (2) by not then considering outside materials on the motion for reconsideration, (3) in concluding that the statute of frauds was not satisfied, and (4) by failing to find an implied contract. GFF also appeals from the entry of summary judgment on its fraud claim, contending that the district court erred in concluding GFF was not damaged.

Discussion

I. Dismissal of Breach of Contract Claim

As the sufficiency of a complaint is a question of law, we review de novo the district court's grant of a motion to dismiss pursuant to 12(b)(6). See Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995); Housley v. Dodson, 41 F.3d 597, 598 (10th Cir.1994). A 12(b)(6) motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir.1992). All well-pleaded factual allegations in the complaint are accepted as true, see Ash Creek Mining Co., 969 F.2d at 870, and viewed in the light most favorable to the nonmoving party, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

A. Conversion to Summary Judgment

First, GFF argues that the district court erred by not converting AWG's 12(b)(6) motion into one for summary judgment when the court explicitly considered outside material in its ruling. GFF argues further that based on this failure to convert, the district court erred in refusing to consider outside materials presented on GFF's motion for reconsideration of the dismissal of its contract claim. GFF did not argue before the district court either that the letter should be excluded from the court's consideration or that the motion should be converted to one for summary judgment. Generally, such failure to present an issue to the district court results in waiver, see Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir.1993); 10th Cir. R. 28.2(b), but because GFF's opposition to the 12(c) motion argued that the appropriate test was like that for a summary judgment motion, we will consider the argument.

A 12(b)(6) motion must be converted to a motion for summary judgment if "matters outside the pleading are presented to and not excluded by the court" and "all parties ... [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). The failure to convert a 12(b)(6) motion to one for summary judgment where a court does not exclude outside materials is reversible error unless the dismissal can be justified without considering the outside materials. See Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir.1995). Notwithstanding these general principles, if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss. See Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir.1991); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-97 (3d Cir.1993); Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir.1993); New Beckley Mining Corp. v. United Mine Workers of Amer., 18 F.3d 1161, 1164 (4th Cir.1994); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994); Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir.1997); Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir.1997).

If the rule were otherwise, a plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a dispositive document upon which the plaintiff relied. Moreover, conversion to summary judgment when a district court considers outside materials is to afford the plaintiff an opportunity to respond in kind. When a complaint refers to a document and the document is central to the plaintiff's claim, the plaintiff is obviously on notice of the document's contents, and this rationale for conversion to summary judgment dissipates.

We now turn to the case at hand, in which the letter was the only material other than the complaint considered by the district court. GFF did not attach the letter to its amended complaint, nor properly incorporate the letter by reference. Despite these omissions, GFF did not dispute the authenticity of the letter. Indeed, GFF frequently referred to and quoted from the letter in its amended complaint, and alleged that the letter alone satisfied the statute of frauds. GFF also attached the letter as an exhibit to its opposition to the 12(b)(6) motion, via incorporation by reference of its 12(c) opposition, and referred to the letter (in some instances as the contract itself) throughout its brief. For these reasons, we conclude that the letter was indisputably authentic and central to GFF's breach of contract claim. The district court, therefore, properly considered the letter submitted by AWG as not "outside the pleading" for purposes of the 12(b)(6) motion. It follows that the district court also did not err in refusing to consider outside materials on motion for reconsideration of its ruling on the unconverted 12(b)(6) motion.

B. Statute of Frauds

GFF next argues that the district court committed error in concluding that the letter was insufficient to satisfy the Oklahoma statute of frauds. The court determines as a matter of law whether the memoranda, letters, or other writings relied upon are sufficient to satisfy the statute of frauds. See Joseph E. Seagram & Sons, Inc. v. Shaffer, 310 F.2d 668, 675 (10th Cir.1962) (interpreting Oklahoma law). Although a party may allege in its complaint that a writing satisfies the statute, the document controls when it is properly before the court. See Jackson v. Alexander, 465 F.2d 1389, 1390 (10th Cir.1972); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1327 & n. 14 (2d ed. 1990) (Wright & Miller). Mere legal conclusions and factual allegations that contradict such a properly considered document are not well-pleaded facts that the court must accept as true. See Jack...