130 F.3d 1381 (10th Cir. 1997), 96-6287, GFF Corp. v. Associated Wholesale Grocers, Inc.

Docket Nº:96-6287.
Citation:130 F.3d 1381
Party Name:GFF CORPORATION, an Oklahoma Corporation, Plaintiff-Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., a Missouri Corporation, Defendant-Appellee.
Case Date:November 25, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1381

130 F.3d 1381 (10th Cir. 1997)

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

November 25, 1997

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[Copyrighted Material Omitted]

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        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

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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).

  1. Conversion to Summary Judgment

            First...

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