Beekman v. Beekman
| Decision Date | 01 March 2022 |
| Docket Number | A-21-307. |
| Citation | 30 Neb.App. 676,972 N.W.2d 415 |
| Parties | Fred BEEKMAN, appellant, v. Roc BEEKMAN and Ross Stepan, appellees. |
| Court | Nebraska Court of Appeals |
Lyle Joseph Koenig, of Koenig Law Firm, for appellant.
Erin Ebeler Rolf, of Woods | Aitken, L.L.P., Lincoln, for appellees.
Fred Beekman (Beekman) appeals from the order of the Gage County District Court granting the motion of Roc Beekman (Roc) and Ross Stepan (collectively the Appellees) to dismiss Beekman's complaint alleging breach of contract, unjust enrichment, conversion, and fraudulent misrepresentation and deceit in connection with an alleged oral contract for the sale of quarried rock. For the reasons set forth herein, we reverse that portion of the order which provides the district court lacked subject matter jurisdiction and that portion of the order which finds that Beekman's amended complaint failed to state a claim for which relief could be granted in his breach of contract claim. We affirm the remaining findings in the order. The matter is remanded for further proceedings.
In August 2016, Beekman sold his quarry business, Barnston Quarry LLC, to the Appellees’ business, Rush Creek Construction, Inc. (Rush Creek). According to Beekman, the contract for the sale of his quarry business did not include the quarried rock; instead, he contends that the quarried rock was negotiated separately and that the parties, in their individual capacities, entered into an oral agreement in which the Appellees agreed to sell the quarried rock, keep track of the sales, and pay Beekman after the quarried rock was sold. After no payments for the quarried rock were forthcoming, Beekman made several demands for payment. After the Appellees refused to pay for the quarried rock, in September 2020, Beekman filed a complaint against the individual Appellees, alleging breach of contract, unjust enrichment, conversion, and fraudulent misrepresentation and deceit.
Beekman's complaint alleged that he sold his quarry business and certain equipment located on the premises to the Appellees’ business, Rush Creek. The complaint further alleged that the sale Beekman alleged that he deliberately entered into the oral contract for the sale of the quarried rock between individuals because he was "well aware of the fact that a business enterprise such as an LLC, or a corporation, is liable for its obligations only to the extent of its assets" and he "specifically dealt with [the Appellees] individually so that he had an opportunity to recover the value of the [quarried] rock." The complaint further alleged that the Appellees paid the amount owed on the contract except for the quarried rock, which Beekman valued at $64,500; that the Appellees agreed to pay for the rock but wanted to measure the piles of quarried rock to determine how much rock was located on the premises; and that the Appellees agreed they would keep track of the quarried rock sales and pay Beekman for the rock after it was sold. Beekman alleged that the Appellees sold the quarried rock and kept the proceeds despite demands for payment. Beekman's complaint also alleged that the Appellees falsely misrepresented to him that they would purchase the quarried rock, that the Appellees now claim they did not intend to separately purchase the quarried rock, that the Appellees made the false representation intentionally and fraudulently knowing that Beekman would rely upon the misrepresentation, and that he relied on the Appellees’ representation which caused him direct and proximate harm in the amount of $64,500.
The Appellees filed a motion to dismiss on the bases that Beekman failed to state a claim for which relief could be granted, that Beekman failed to join a necessary party, that the claim was not brought by the real party in interest, that Beekman's claims violated the statute of frauds, and that the claims were barred by the 4-year statute of limitations. At the hearing on the motion to dismiss, the Appellees offered as an exhibit Roc's affidavit, which the court accepted over Beekman's objection. Roc's affidavit asserted that all payments for the equipment listed on the offer to purchase were made via check by Rush Creek; that no other written documents were attached to that offer letter or otherwise made a part of the agreement to purchase Barnston Quarry's equipment; and that Rush Creek never agreed to purchase rock from Barnston Quarry or from Beekman, nor did Roc agree to it in his individual capacity. The affidavit included, as an attachment, the written offer by Rush Creek to purchase certain assets from Barnston Quarry. The letter was addressed to Barnston Quarry, to the attention of Beekman, and included an offer to purchase specific assets from Barnston Quarry and a plan for two installment payments for the purchase of those assets. The quarried rock was not listed on the offer to purchase. The offer was signed by Roc on behalf of Rush Creek.
In response, Beekman offered his complaint into evidence. Beekman argued that the parties entered into a separate oral agreement for the quarried rock and/or an implied contract, that a performance exception applied to the statute of frauds because the goods were received and accepted, that the claim could not be dismissed under the statute of limitations because the date the rock was sold by the Appellees was unknown and the date controlled when the trial clock began to run, that all the elements of fraud were stated within the complaint, and that the separate contract was made between the individuals and not the businesses. Thereafter, the district court granted the Appellees’ motion to dismiss Beekman's complaint with prejudice. The court found:
There is no evidence in the record or allegation in the Complaint that [Beekman], rather than Barnston Quarry, owned any of the property at issue in this dispute or entered into any transaction with [the Appellees]. As such, the undisputed evidence demonstrates that [Beekman] is not the real party in interest to bring this [law]suit, that Barnston Quarry and Rush Creek are necessary and indispensable part[ies] to this lawsuit, and the Court is wholly without jurisdiction to decide this case in their absence.
The court based its finding on "the undisputed evidence in the record," consisting of Roc's affidavit, but also noted that the court "would render the same finding under a facial attack without considering [Roc's affidavit]."
Alternatively, the court found other bases for dismissing Beekman's complaint, including failure to state a claim for which relief could be granted in that Beekman's complaint was barred by the statute of frauds, that Beekman failed to plead his fraud claim with particularity, and that each of Beekman's claims was barred by the statute of limitations. Specifically, the court found that Beekman's complaint failed to state a claim for which relief could be granted due to Beekman's failure to allege specific factual assertions, as opposed to mere conclusions, that showed that there was a separate oral contract for the sale of the quarried rock such that the statute of frauds barred Beekman from asserting that there was an oral contract or that an exception to the statute of frauds applied; that Beekman failed to plead his fraud claim with particularity due to his failure to allege whether it was Roc or Stepan who made the misrepresentation, when it was made, how the alleged wrongdoers made the misrepresentation, or where the misrepresentation was made; and that the statute of limitations barred Beekman's claims because the time began to run on the date of the contract on August 1, 2016. The court denied, sua sponte, any opportunity for Beekman to amend his complaint, noting that although Beekman had three opportunities to sufficiently amend his pleadings to correct defects, he had failed to do so. Beekman has timely appealed to this court.
Beekman assigns as error, restated and renumbered, that the district court erred in (1) receiving Roc's affidavit without providing notice that the court converted the motion to dismiss into a motion for summary judgment and failing to draw all reasonable inferences in favor of the nonmoving party in the motion, (2) finding that Beekman was not the real party in interest, (3) determining that Beekman failed to state a claim for a separate contract of the sale of quarried rock and therefore was barred by the statute of frauds, (4) finding that his complaint did not plead fraud with particularity, and (5) finding that his claims were barred by the 4-year statute of limitations.
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. J.S. v. Grand Island Public Schools , 297 Neb. 347, 899 N.W.2d 893 (2017).
Under the rules for notice pleading, Nebraska appellate courts review matters that were dismissed for lack of subject matter jurisdiction de novo, except for factual findings. See Bohaboj v. Rausch , 272 Neb. 394, 721 N.W.2d 655 (2006).
An appellate court reviews the district court's denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, we review de novo any underlying legal conclusion that the proposed amendments would be futile. Chaney v. Evnen , 307 Neb. 512, 949 N.W.2d 761 (2020).
Before determining the merits of Beekman's assignments of error, we must first determine whether this court has jurisdiction. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised...
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