TODD A. BURKLUND AND SHELLY M. BuRKLUND, APPELLANTS,
BRAD FUEHRER AND STRUCTURE Technologies, LLC, appellees.
1. Motions to Dismiss: Pleadings:
Appeal and Error. An appellate court reviews a
district court's order granting a motion to dismiss de
novo, accepting all allegations in the complaint as true and
drawing all reasonable inferences in favor of the nonmoving
Motions to Dismiss: Pleadings. To prevail
against a motion to dismiss for failure to state a claim, a
plaintiff must allege sufficient facts to state a claim to
relief that is plausible on its face. In cases in which a
plaintiff does not or cannot allege specific facts showing a
necessary element, the factual allegations, taken as true,
are nonetheless plausible if they suggest the existence of
the element and raise a reasonable expectation that discovery
will reveal evidence of the element or claim.
Actions: Pleadings: Notice. Civil actions
are controlled by a liberal pleading regime; a party is only
required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief and is
not required to plead legal theories or cite appropriate
statutes so long as the pleading gives fair notice of the
Actions: Pleadings. The rationale for a
liberal notice pleading standard in civil actions is that
when a party has a valid claim, he or she should recover on
it regardless of a failure to perceive the true basis of the
claim at the pleading stage.
from the District Court for Lancaster County: Darla S. Ideus,
Judge. Reversed and remanded for further proceedings.
Elizabeth Ryan Cano and John P. Weis, of Wolfe, Snowden.
Hurd, Luers & Ahl, L.L.P, for appellants.
Neb. 950] Brian S. Kruse, of Rembolt Ludtke, L.L.P., for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Riedmann, Judge, and Martinez, District Judge.
appeal arises from a disputed real estate transaction.
Appellants, Todd A. Burklund and Shelly M. Burklund, sought
damages for breach of contract, breach of warranty, and
fraudulent misrepresentation after discovering extensive hail
damage to the roof of a real property they were under
contract to purchase from appellees, Brad Fuehrer and
Structure Technologies, LLC (the sellers). The district court
for Lancaster County granted the sellers' joint motion to
dismiss for failure to state a claim and dismissed the second
amended complaint with prejudice and without leave to amend
based on the "fact" that the damage was reasonably
ascertainable by the Burklunds. The Burklunds appeal. We
reverse the district court's dismissal and remand the
cause for further proceedings.
August 11, 2016, the Burklunds entered into a real estate
purchase agreement (the Purchase Agreement) with the sellers
for the purchase of real property in Lincoln, Nebraska (the
Property). The Purchase Agreement included a lease-back
provision whereby the Burklunds agreed to lease the Property,
including a building located on the premises, to the sellers
for a period of 1 year, with a 1-year renewal option, in
consideration for monthly rent in the amount of $4, 000. The
Purchase Agreement included several addendums which were
executed on the same day.
Burklunds planned to purchase the Property, in part, to use
it as part of a tax-deferred exchange under the Internal
Revenue Code, I.R.C. § 1031 (2006) (i.e., a like-kind
[299 Neb. 951] exchange). In May 2016, the Burklunds had sold
a different property, the proceeds of which sale they placed
into escrow to accomplish the like-kind exchange. To complete
the like-kind exchange, the Burklunds needed to close on a
new property no later than November 1. The Burklunds selected
the Property for that ...