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Salem Grain Company, Inc. v. Consolidated Grain and Barge Co.

Supreme Court of Nebraska

September 8, 2017

Salem Grain Company, Inc., appellant,
v.
Consolidated Grain and Barge Co. et al., appellees.

         1. Motions to Dismiss: Pleadings: Appeal and Error. A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         3. Federal Acts: Vendor and Vendee. Under the doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from the government.

         4. Constitutional Law: Federal Acts. The doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), is based on both the First Amendment's petition clause and the statutory interpretation of federal antitrust laws.

         5. Vendor and Vendee. The application of the doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), to claims under antitrust laws is ultimately based on the fact that antitrust laws, tailored as they are for the business world, are not at all appropriate for application in the political arena.

         6. Vendor and Vendee: Conspiracy. There is no "conspiracy" exception to the doctrine established by Eastern R. Conf. v. Noerr Motors, 365 [297 Neb. 683] U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), when applied to claims under antitrust laws.

         7. Constitutional Law: Vendor and Vendee: Conspiracy. The line to determine when the conspiracy exception applies is based not on whether a claim is antitrust in nature, but on which theory the application of the doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mwe Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), is predicated on, either the First Amendment or the antitrust laws.

         8. Consumer Protection. Neb. Rev. Stat. § 59-1602 (Reissue 2010) mirrors the language of 15 U.S.C. § 45(a)(1) (2012).

         9. __ . Neb. Rev. Stat. § 59-1603 (Reissue 2010) is construed in accordance with 15 U.S.C. § 1 (2012).

         10. Consumer Protection: Intent. The Consumer Protection Act, Neb. Rev. Stat. §§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 2012), was intended to be an antitrust measure to protect Nebraska consumers from monopolies and price-fixing conspiracies.

         11. Consumer Protection. The Consumer Protection Act, Neb. Rev. Stat. §§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 2012), is tailored for the business world, not for the political arena.

         12. Pleadings. The doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mwe Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), is an affirmative defense.

         13. Rules of the Supreme Court: Pleadings. An affirmative defense may be asserted in a motion filed pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) when the defense appears on the face of the complaint.

         14. Appeal and Error. In the absence of plain error, an appellate court considers only claimed errors which are both assigned and discussed.

         15. Rules of the Supreme Court: Pleadings: Notice. The Nebraska Rules of Pleading in Civil Actions, like the federal rules, have a liberal pleading requirement for both causes of action and affirmative defenses, but the touchstone is whether fair notice was provided.

         16. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         17. Conspiracy: Words and Phrases. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

         18. Actions: Aiding and Abetting. A claim of aiding and abetting is that in addition to persons who actually participate in concerted wrongful [297 Neb. 684] action, persons who aid, abet, or procure the commission thereof, are subject to a civil action therefor.

         19. Actions: Conspiracy: Aiding and Abetting: Liability. Claims of civil conspiracy and aiding and abetting are essentially methods for imposing joint and several liability on all actors who committed a tortious act or any wrongful acts in furtherance thereof.

         20. Aiding and Abetting: Torts. A claim of aiding and abetting requires the presence of an underlying tort.

         21. Conspiracy: Torts. A "conspiracy" is not a separate and independent tort in itself, but, rather, is dependent upon the existence of an underlying tort. Without such underlying tort, there can be no claim for relief for a conspiracy to commit the tort.

         22. Conspiracy: Aiding and Abetting. A statutory violation alone is insufficient to sustain a claim of civil conspiracy or aiding and abetting.

         Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr., Judge. Affirmed.

          David A. Domina and Christian T. Williams, of Domina Law Group, PC, L.L.O., for appellant.

          Terry C. Dougherty, Audrey R. Svane, and Kari A.F. Scheer, of Woods & Aitken, L.L.P, for appellee Consolidated Grain and Barge Co.

          Robert S. Keith and Alexis M. Wright, of Engles, Ketcham, Olson & Keith, P.C., for appellees Gary Jorn, Kevin Malone, and Beth Sickel.

          Bonnie M. Boryca and Patrick R. Guinan, of Erickson & Sederstrom, PC, for appellees Becky Cromer, Ray Joy, Bart Keller, and Charles Radatz.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         I. NATURE OF CASE

         Salem Grain Company, Inc. (Salem), appeals an order from the district court for Richardson County dismissing its [297 Neb. 685] complaint with prejudice for failure to state a claim upon which relief could be granted. The court found that all appellees were entitled to immunity from Salem's claims under Nebraska's Consumer Protection Act[1] (NCPA) and the Noerr-Pennington doctrine[2] and that Salem's claims of conspiracy and aiding and abetting required an underlying tort to be actionable. Accordingly, the court ruled that any amendments to the pleading would be futile. We affirm.

         II. FACTS

         Salem operates commercial grain warehouses and elevators and owns trading businesses throughout southeast Nebraska, including a location in Richardson County, Nebraska. Consolidated Grain and Barge Co. (CGB) also operates commercial grain warehouses. In 2012, CGB expressed an interest in expanding its operations to the Falls City, Nebraska, area, and it now owns and operates a commercial grain warehouse in Richardson County, which is in competition with Salem's Richardson County warehouse.

         At the time of the alleged actions, the other appellees were involved with various organizations in Falls City: Becky Cromer was the executive director of the Falls City Economic Development and Growth Enterprise (EDGE), a private organization; Gary lorn, Ray loy, and Bart Keller were members of EDGE; Kevin Malone was a member of EDGE, the Falls City Community Redevelopment Authority (CRA), the Citizen Advisory Review Committee (CARB), and the Falls City Planning and Zoning Board; Charles Radatz was a member of EDGE and the CRA; and Beth Sickel was a member of [297 Neb. 686] EDGE, the CRA, and the CARB. Each of these appellees were sued in their individual capacities.

         The remaining defendants, "John Doe I-IV and Jane Doe I-IV, " were members of EDGE, the CRA, or the CARB that may have participated in the alleged wrongful acts against Salem.

         Salem filed a complaint alleging that each of the individual appellees engaged in a pattern of behavior-through a series of contracts, combinations, and conspiracies-with the intent to deprive it of information, an opportunity to be heard, and due process of law, which caused Salem financial damages. More specifically, it alleged that its damages were a result of the unfair increased competition that CGB brought to the region through the special privileges it received from Falls City and that the individual appellees aided and abetted in concealing from Salem and the community those benefits.

         Salem asserts that the individual appellees' pattern of behavior included preventing legal notice of the following actions from being provided to Salem: the annexation of land into Falls City; the rezoning of said land for commercial use; the declaration of said land as blighted, which made it eligible for tax increment financing; the approval of tax increment financing and the issuance of at least one bond to assist CGB; and the procurement of state and federal grants to assist CGB. In doing so, Salem contended that the appellees violated Nebraska's Open Meetings Act[3] (NOMA) and the NCPA.

         As a result of CGB's entry into the market at the end of 2012, Salem alleged an annual loss net profit of 10 to 20 cents per bushel for 2 million bushels per year of grain that it would have or did handle in 2013 through 2015. During that same period, Salem alleged an annual minimum loss of $150, 000 in storage revenue.

         [297 Neb. 687] CGB; Cromer, Joy, Keller, and Radatz; and Jorn, Malone, and Sickel separately moved to dismiss Salem's complaint, arguing that it had failed to state a claim upon which relief could be granted, under Neb. Ct. R. Pldg. § 6-1112(b)(6). CGB, Jorn, Malone, and Sickel also asserted that the appellees were entitled to immunity under the Noerr-Pennington doctrine.

         The court ruled that Salem could not state any claim against the appellees pursuant to the NCPA, because the appellees were entitled to immunity, under the Noerr-Pennington doctrine, and rejected Salem's claim that an exception to the doctrine applied, because the appellees acted unlawfully by violating the NOMA. The court also ruled that the conspiracy and aiding and abetting claims required an underlying tort to be viable. Therefore, the court dismissed the complaint with prejudice, essentially finding any amendment would be futile. Salem appealed.

         III. ASSIGNMENTS OF ERROR

         Salem assigns, restated and reordered, that the court erred (1) in finding the appellees immune from suit, under the Noerr-Pennington doctrine or otherwise; (2) in finding that conspiracy and aiding and abetting claims are not independent claims upon which relief can be granted but, instead, require the allegation of an independent tort; (3) by sustaining appellees' § 6-1112(b)(6) motions to dismiss; (4) by denying leave to amend; and (5) by not sustaining Salem's jury demand.

         IV. STANDARD OF REVIEW

         A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.[4]

         [297 Neb. 688] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.[5]

         V. ANALYSIS

         Salem argues, summarized, that it and other grain warehouses in and around southeast Nebraska were injured by CGB's entry into the market in Richardson County, because CGB received special economic privileges. It claims that the special privileges provided to CGB were the result of the appellees' conspiracy to prevent the public, and Salem specifically, from having knowledge of the economic development activities that the city council of Falls City was providing. It further claims that the appellees participated in violations of the NOMA in order to obtain those special privileges.

         As a result, it asserts that the conspiracy to provide CGB an unfair advantage in the marketplace by violating the NOMA was a violation of the NCPA under §§ 59-1602 and 59-1603, which damaged Salem and created a cause of action under § 59-1609. Further, it contends that the appellees' conspiracy to engage in wrongful conduct-by violating the NOMA, violating the NCPA, and withholding information-is sufficient to sustain claims of conspiracy and aiding and abetting. CGB argues that Salem's single factual allegation- that it expressed an interest in opening a grain warehouse in the Falls City area-cannot support any claims against it. Further, the appellees contend that, acting in their individual capacities, their actions were nothing more than petitioning the government to offer CGB incentives to open a location in Falls City to advance economic development in the community.

         [297 Neb. 689] 1. Appellees Are Entitled to Immunity From Salem's NCPA Claims Under Noerr-Pennington Doctrine

         (a) Parties' Contentions

         Salem argues that the Noerr-Pennington doctrine is a narrow defense that applies only to antitrust claims and not to its claims under the NCPA. It argues that §§ 59-1602 and 59-1603 of the NCPA were modeled after the Federal Trade Commission Act[6] (FTCA), not the Sherman Act[7]; that the FTCA focuses on consumer rather ...


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