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Burklund v. Fuehrer

Supreme Court of Nebraska

May 11, 2018

TODD A. BURKLUND AND SHELLY M. BuRKLUND, APPELLANTS,
v.
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 party.

         2. 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.

         3. 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 claims asserted.

         4. 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.

          Appeal 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.

         [299 Neb. 950] Brian S. Kruse, of Rembolt Ludtke, L.L.P., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann, Judge, and Martinez, District Judge.

          Miller-Lerman, J.

         NATURE OF CASE

         This 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.

         FACTS

         On 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.

         The 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 ...


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