Beekman v. Beekman , 30 Neb. Ct. App. 676 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/08/2022 08:06 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BEEKMAN v. BEEKMAN
Cite as 30 Neb. App. 676Fred Beekman, appellant, v. Roc Beekman
and Ross Stepan, appellees.
___ N.W.2d ___
Filed March 1, 2022. No. A-21-307.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Motions to Dismiss: Jurisdiction: Rules of the Supreme Court:
Pleadings: Appeal and Error. 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.
3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late 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, an
appellate court reviews de novo any underlying legal conclusion that the
proposed amendments would be futile.
4. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
5. Standing. The stage of the litigation in which a party claims that its
opponent lacks standing affects how a court should dispose of the claim.
6. Motions to Dismiss: Jurisdiction: Pleadings: Standing: Proof. If a
motion to dismiss for lack of subject matter jurisdiction is filed at the
pleadings stage, it is considered a “facial challenge.” In resolving a
facial challenge, a court will review the pleadings to determine whether
there are sufficient allegations to establish the plaintiff’s standing. The
court will accept the allegations of the complaint as true and draw all
reasonable inferences in favor of the nonmoving party. At the pleadings
stage, the standard for determining the sufficiency of a complaint to
allege standing is fairly liberal.
7. Motions to Dismiss: Jurisdiction: Pleadings: Appeal and Error. An
appellate court reviews a trial court’s decision on a motion to dismiss
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Cite as 30 Neb. App. 676for lack of subject matter jurisdiction based on a facial attack on the
pleadings de novo.
8. Jurisdiction: Pleadings: Evidence: Affidavits: Proof. If a motion chal-
lenging a court’s subject matter jurisdiction is filed after the pleadings
stage, and the court holds an evidentiary hearing and reviews evidence
outside the pleadings, it is considered a “factual challenge.” The party
opposing the motion must then offer affidavits or other relevant evi-
dence to support its burden of establishing subject matter jurisdiction.
9. Motions to Dismiss: Jurisdiction: Pleadings: Appeal and Error.
Where the trial court’s decision on a motion to dismiss for lack of
subject matter jurisdiction is based on a factual challenge, the court’s
factual findings are reviewed under the clearly erroneous standard.
10. 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.
11. Jurisdiction: Affidavits: Evidence. If the defendant thinks the district
court lacks subject matter jurisdiction, the proper course is to request
an evidentiary hearing on the issue. The motion may be supported with
affidavits or other documents. If necessary, the district court can hold a
hearing at which witnesses may testify. As no statute or rule prescribes
a format for evidentiary hearings on jurisdiction, any rational mode of
inquiry will do. Once the evidence is submitted, the district court must
decide the jurisdictional issue, not simply rule that there is or is not
enough evidence to have a trial on the issue. The only exception is in
instances when the jurisdictional issue is so bound up with the merits
that a full trial on the merits may be necessary to resolve the issue.
12. Actions: Jurisdiction: Pretrial Procedure: Presumptions. Where the
jurisdictional facts are intertwined with the facts central to the merits of
the dispute, a presumption of truthfulness should attach to the plaintiff’s
allegations. In that situation, the defendant has challenged not only the
court’s jurisdiction but also the existence of the plaintiff’s cause of
action. A trial court should then afford the plaintiff the procedural safe-
guards—such as discovery—that would apply were the plaintiff facing a
direct attack on the merits.
13. Parties: Equity: Words and Phrases. Indispensable parties are par-
ties whose interest is such that a final decree cannot be entered without
affecting them, or that termination of controversy in their absence would
be inconsistent with equity. There is no discretion as to the inclusion of
an indispensable party.
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Cite as 30 Neb. App. 67614. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible on its face.
15. 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.
16. Pleadings. In cases in which a plaintiff does not or cannot allege spe-
cific 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.
17. Fraud: Pleadings. In order to state a claim for fraudulent misrepresenta-
tion under Nebraska law, a plaintiff must allege that (1) a representation
was made; (2) the representation was false; (3) when made, the repre-
sentation was known to be false or made recklessly without knowledge
of its truth and as a positive assertion; (4) the representation was made
with the intention that the plaintiff should rely on it; (5) the plaintiff did
so rely on it; and (6) the plaintiff suffered damage as a result.
18. Limitations of Actions: Pleadings: Proof. Where a complaint does
not disclose on its face that it is barred by the statute of limitations, a
defend­ant must plead the statute as an affirmative defense, and, in that
event, the defendant has the burden to prove that defense.
19. Limitations of Actions: Pleadings. If the complaint does not disclose
that it is barred by the statute of limitations, dismissal is improper.
20. ____: ____. A challenge that a pleading is barred by the statute of limi-
tations is a challenge that the pleading fails to allege sufficient facts to
constitute a claim upon which relief can be granted.
21. 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 rea-
sonable inferences in favor of the nonmoving party.
22. Limitations of Actions: Time: Sales. The statute of limitations begins
to run against a cause of action to recover the purchase price or value
of goods sold and delivered at the time of their delivery unless there is
some agreement as to the time or manner of payment different from that
which the law implies, which is that payment shall be made in cash on
delivery. If a term of credit is given to the buyer the statute begins to run
when, and only when, the period of credit has expired.
23. Limitations of Actions: Pleadings. It is an established principle of
pleading that the plaintiff need not in his or her pleading anticipate or
negative possible defenses, and accordingly, as a general rule, a plaintiff,
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Cite as 30 Neb. App. 676in order to recover, need not affirmatively show in his or her complaint,
declaration, petition, or statement of claim, that the cause of action set
forth therein is not barred by the applicable statute of limitations, at
least, where the bar of the statute does not appear on the face of the
plaintiff’s pleading, but may leave it to the defendant to assert the bar of
the statute at the appropriate stage of the proceeding.
24. Conversion: Words and Phrases. Conversion is any unauthorized
or wrongful act of dominion exerted over another’s property which
deprives the owner of his or her property permanently or for an indefi-
nite period of time.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Lyle Joseph Koenig, of Koenig Law Firm, for appellant.
Erin Ebeler Rolf, of Woods | Aitken, L.L.P., for appellees.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
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 misrepresenta-
tion 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.
II. STATEMENT OF FACTS
In August 2016, Beekman sold his quarry business,
Barnston Quarry LLC, to the Appellees’ business, Rush Creek
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Cite as 30 Neb. App. 676Construction, 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 indi-
vidual 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 mis-
representation and deceit.
Beekman’s complaint alleged that he sold his quarry busi-
ness and certain equipment located on the premises to the
Appellees’ business, Rush Creek. The complaint further alleged
that the sale “included certain equipment and quarried rock
that was located at various locations on the premises. The sale
of the quarr[ied] rock was separately negotiated on that same
date between [Beekman] and [the Appellees] as individuals.”
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 enter-
prise such as an LLC, or a corporation, is liable for its obliga-
tions 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 val-
ued 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
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Cite as 30 Neb. App. 676also 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 quar-
ried 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 proxi-
mate 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 indi-
vidual 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 install-
ment 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
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Cite as 30 Neb. App. 676could 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 preju-
dice. 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 indis-
pensable 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 con-
tract 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 particular-
ity due to his failure to allege whether it was Roc or Stepan
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Cite as 30 Neb. App. 676who 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 suf-
ficiently amend his pleadings to correct defects, he had failed
to do so. Beekman has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
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 dis-
miss 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.
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual 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).
[2] 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).
[3] 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
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Cite as 30 Neb. App. 676underlying legal conclusion that the proposed amendments
would be futile. Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d
761 (2020).
V. ANALYSIS
[4] Before determining the merits of Beekman’s assign-
ments 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 by the parties. J.S. v.
Grand Island Public Schools, supra.The district court’s order reflects two separate bases upon
which it found that it lacked subject matter jurisdiction over
Beekman’s claim. First, the court found that Beekman was not
the real party in interest to assert a breach of contract claim
involving the sale of the quarried rock. Second, the court found
that because the sale necessarily implicated businesses that
were involved in the transaction, Beekman’s complaint failed
to include necessary and indispensable parties. We will exam-
ine those findings independently.
1. Real Party in Interest
In his complaint, Beekman asserted that he sold his quarry
business to the Appellees, which sale included certain equip-
ment and quarried rock. However, Beekman alleged that
“the quarr[ied] rock was separately negotiated on that same
date between [Beekman] and [the Appellees] as individuals.”
Beekman went on to claim that the Appellees’ failure to pay
for the quarried rock that they took possession of, and sub-
sequently sold, amounted to a breach of contract. As to that
pleading, the district court found that the Appellees’ Neb. Ct.
R. Pldg. § 6-1112(b)(1) motion asserted a “factual challenge”
to the court’s jurisdiction. Because the district court deemed
the Appellees’ jurisdictional challenge a factual one, it stated
“‘[i]n a factual challenge, the court may consider and weigh
evidence outside of the pleadings to answer the jurisdictional
question,’” quoting Washington v. Conley, 273 Neb. 908, 734
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Cite as 30 Neb. App. 676N.W.2d 306 (2007). The district court then went on to con-
sider, over Beekman’s objection, an affidavit offered by Roc
and received by the court in connection with its subject matter
jurisdiction analysis. The court concluded that on the basis of
Roc’s affidavit, Beekman was not the real party in interest and
the district court lacked subject matter jurisdiction. In the alter-
native, the court found:
The Court would render the same finding under a
facial attack without considering [Roc’s affidavit]. Under
a facial attack, the Court would be limited to considering
the pleadings, matters of public record, and materials that
are necessarily embraced by the pleadings. See Nadeem
v. State, 298 Neb. 329, 334, 904 N.W.2d 244, 249 (Neb.
2017); DMK Boidiesel, LLC v. McCoy, 285 Neb. 974,
980, 830 N.W.2d 490, 496 (Neb. 2013).
The district court then found that the offer letter produced
by Roc in his affidavit was embraced by the pleadings and
could be considered by the court. When read together with the
pleadings, the court concluded that Beekman failed to allege
sufficient facts to establish he was the real party in inter-
est and that all necessary and indispensable parties had not
been joined.
[5-9] In order to review this assigned error, we must first
identify the standard by which both the district court and
this court can review a jurisdictional challenge raised by a
§ 6-1112(b)(1) motion. In Jacobs Engr. Group v. ConAgra
Foods, 301 Neb. 38, 54-55, 917 N.W.2d 435, 451-52 (2018),
the Nebraska Supreme Court analyzed that very issue and pro-
vided as follows:
Because a defect in standing is a defect in subject
matter jurisdiction, a challenge to standing is treated as
a motion to dismiss for lack of subject matter jurisdic-
tion brought under Neb. Ct. R. Pldg. § 6-1112(b)(1). We
have previously explained that the stage of the litigation
in which a party claims that its opponent lacks standing
affects how a court should dispose of the claim.
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Cite as 30 Neb. App. 676If the motion is filed at the pleadings stage, it is con-
sidered a “facial challenge.” In resolving a facial chal-
lenge, a court will review the pleadings to determine
whether there are sufficient allegations to establish the
plaintiff’s standing. The court will accept the allegations
of the complaint as true and draw all reasonable infer-
ences in favor of the nonmoving party. At the pleadings
stage, the standard for determining the sufficiency of a
complaint to allege standing is fairly liberal. An appel-
late court reviews a trial court’s decision on a motion to
dismiss for lack of subject matter jurisdiction based on a
facial attack on the pleadings de novo.
If a motion challenging a court’s subject matter juris-
diction is filed after the pleadings stage, and the court
holds an evidentiary hearing and reviews evidence outside
the pleadings, it is considered a “factual challenge.” The
party opposing the motion must then offer affidavits or
other relevant evidence to support its burden of establish-
ing subject matter jurisdiction. Where the trial court’s
decision on a motion to dismiss for lack of subject matter
jurisdiction is based on a factual challenge, the court’s
factual findings are reviewed under the clearly errone-
ous standard.
In this case, the Appellees brought a § 6-1112(b)(1) chal-
lenge at the pleading stage. See Moats v. Republican Party of
Neb., 281 Neb. 411, 796 N.W.2d 584 (2011) (Miller-Lerman,
J., concurring) (complaint and motion to dismiss referenced
as at early pleading stage). We need not decide whether the
Appellees were limited to a facial challenge at this stage of
the proceedings because, as we set forth below, under either a
facial challenge or a factual challenge, we find that the district
court had subject matter jurisdiction over Beekman’s claims.
In its findings, the district court concluded Beekman’s com-
plaint failed a facial challenge governing Beekman’s standing
to bring his claims. In considering that facial challenge, the
court considered both the allegations in the complaint and
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Cite as 30 Neb. App. 676the offer letter attached to Roc’s affidavit which the court
concluded was embraced by the pleadings and could be con-
sidered by the court, citing Nadeem v. State, 298 Neb. 329,
904 N.W.2d 244 (2017). Assuming, without deciding, that the
offer letter was embraced by the pleadings and could be con-
sidered in connection with this facial challenge, we now per-
form a de novo review of Beekman’s pleading and the offer
letter. In performing a de novo review to determine whether
the allegations are sufficient to establish Beekman’s stand-
ing, we take the allegations as true and resolve all reasonable
inferences in Beekman’s favor. See Jacobs Engr. Group v.
ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 (2018) (in
resolving facial challenge, court will review pleadings to
determine whether there are sufficient allegations to establish
plaintiff’s standing; in doing so, court will accept allegations
of complaint as true and draw all reasonable inferences in
favor of nonmoving party).
[10] Nebraska is a notice pleading jurisdiction. Vasquez v.
CHI Properties, 302 Neb. 742, 925 N.W.2d 304 (2019). 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. Id.Further, at the pleading stage, the standard for determining the
sufficiency of a complaint to allege standing is fairly liberal.
Jacobs Engr. Group v. ConAgra Foods, supra.Liberally construing Beekman’s complaint, we find that
Beekman sufficiently alleged that although the businesses
entered into a contract for the purchase of equipment, the
individuals named in the lawsuit separately and orally con-
tracted with Beekman to sell and purchase quarried rock which
was not part of the business contract. Beekman also alleges
those same individuals, the Appellees, took possession of the
quarried rock, sold it, and failed to pay Beekman in breach
of their contract. As it relates to the offer letter submitted by
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Cite as 30 Neb. App. 676Roc, the offer on its face references certain equipment being
purchased, but is silent in relation to any quarried rock. As
such, taking the allegations as true, we find that Beekman
sufficiently pled standing to assert this claim in his individual
capacity and that the district court erred in connection with
the Appellees’ facial challenge in finding that Beekman lacked
standing to assert his claim as pled.
[11] At oral argument, the Appellees urged that notwith-
standing the Nebraska Supreme Court’s holding in Jacobs
Engr. Group. v. ConAgra Foods, supra, they retained the right
to make a § 6-1112(b)(1) factual challenge at the pleadings
stage of this lawsuit. The Appellees urge that when applying a
factual challenge and the different burdens of proof associated
therewith, the district court did not err in finding that Beekman
lacked standing to bring his claim. We disagree. Assuming,
without deciding, that the Appellees could bring a factual
challenge at the pleading stage, we are mindful of the Eighth
Circuit Court of Appeals’ statement in Osborn v. U.S., 918 F.2d
724 (8th Cir. 1990). In discussing the standard of review in
connection with Fed. R. Civ. P. 12(b)(1) challenges, the Eighth
Circuit held:
If the defendant thinks the court lacks [subject matter]
jurisdiction, the proper course is to request an eviden-
tiary hearing on the issue. Crawford[ v. United States],
796 F.2d [924,] 928 [(7th Cir. 1986)]. The motion may
be supported with affidavits or other documents. Id. If
necessary, the district court can hold a hearing at which
witnesses may testify. Id.As no statute or rule prescribes a format for evidentiary
hearings on jurisdiction, “any rational mode of inquiry
will do.” Id. at 929. Once the evidence is submitted, the
district court must decide the jurisdictional issue, not sim-
ply rule that there is or is not enough evidence to have a
trial on the issue. Id. The only exception is in instances
when the jurisdictional issue is “so bound up with the
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Cite as 30 Neb. App. 676merits that a full trial on the merits may be necessary to
resolve the issue.” Id.Osborn v. U.S., 918 F.2d at 730.
[12] The Fourth Circuit Court of Appeals provided a thor-
ough explanation to the “jurisdictional issue bound up with
the merits” exception in Kerns v. U.S., 585 F.3d 187 (4th Cir.
2009). In applying the rationale for the exception, the Fourth
Circuit held:
As we explained in Adams [v. Bain, 697 F.2d 1213 (4th
Cir. 1982)], vesting a district court with the discretion
to determine whether it possesses jurisdiction generally
presents no problems. See 697 F.2d at 1219. But as Judge
Sprouse cautioned in Adams, “where the jurisdictional
facts are intertwined with the facts central to the merits of
the dispute,” a presumption of truthfulness should attach
to the plaintiff’s allegations. Id. In that situation, the
defendant has challenged not only the court’s jurisdiction
but also the existence of the plaintiff’s cause of action. A
trial court should then afford the plaintiff the procedural
safeguards—such as discovery—that would apply were
the plaintiff facing a direct attack on the merits. The
Fifth Circuit has aptly described the underlying rationale
for this approach: “[N]o purpose is served by indirectly
arguing the merits in the context of federal jurisdiction.
Judicial economy is best promoted when the existence of
a federal right is directly reached and, where no claim is
found to exist, the case is dismissed on the merits. This
refusal to treat indirect attacks on the merits as Rule
12(b)(1) motions provides, moreover, a greater level of
protection to the plaintiff who in truth is facing a chal-
lenge to the validity of his claim: the defendant is forced
to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both
of which place greater restrictions on the district court’s
discretion.” Williamson v. Tucker, 645 F.2d 404, 415 (5th
Cir.1981).
Kerns v. U.S., 585 F.3d at 192-93.
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BEEKMAN v. BEEKMAN
Cite as 30 Neb. App. 676We believe the inextricably intertwined exception applies
here. In his complaint, Beekman alleged his business, Barnston
Quarry, sold equipment to another business, Rush Creek, but
that Beekman separately sold quarried rock to Roc and Stepan
individually. In his affidavit, Roc acknowledged Rush Creek’s
purchase of equipment from Barnston Quarry, but denied that
either Rush Creek or he personally purchased the quarried
rock. In short, Roc is denying the merits of Beekman’s under-
lying claim in its entirety, not simply claiming that Beekman
lacked standing to assert it. Under this scenario, the district
court should have denied the § 6-1112(b)(1) jurisdictional chal-
lenge and allowed the matter to proceed for future resolution
following appropriate discovery.
2. Indispensable Party
But the district court’s order went further and also found, in
relation to the Appellees’ § 6-1112(b)(7) indispensable party
challenge, that the businesses pled by Beekman that were sub-
ject to a separate agreement as mentioned in the offer letter
were indispensable parties to Beekman’s claim. As such, the
court found that Beekman’s failure to include these parties in
his lawsuit likewise deprived the court of subject matter juris-
diction over the claim.
[13] Section 6-1112(b)(7) allows a party to raise the objec-
tion of the failure to join a necessary or indispensable party.
Indispensable parties are parties whose interest is such that a
final decree cannot be entered without affecting them, or that
termination of controversy in their absence would be inconsist­
ent with equity. Davis v. Moats, 308 Neb. 757, 956 N.W.2d
682 (2021). There is no discretion as to the inclusion of an
indispensable party. Id.Again, we first apply our rules in connection with a facial
challenge to the court’s lacking subject matter jurisdiction due
to the failure to include an indispensable party. Here, Beekman
asserted that the sale conducted between the two businesses
did not include the sale of quarried rock, which was the subject
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Cite as 30 Neb. App. 676of a separate contract between Beekman individually and the
Appellees individually. Thus, on the face of the complaint,
Beekman asserts that only the individuals and not the busi-
nesses had an interest in the quarried rock and that, as pled,
the trial court could enter a final decree without affecting the
businesses’ interest. As such, on the face of the complaint, the
businesses were not indispensable parties to the lawsuit.
Again, assuming, without deciding, that the Appellees could
make a factual challenge at the pleading stage, Roc’s affida-
vit, issued on behalf of Roc personally and on behalf of Rush
Creek, stated, “Rush Creek . . . never agreed to purchase rock
from either Barnston Quarry [or] Beekman as a part of this
transaction.” Taking this admission as true for purposes of an
indispensable party challenge, Roc agrees that a trial court
could enter a final decree governing the subject of Beekman’s
claim without affecting the respective business’ interest in the
quarried rock. Because neither the owners of Barnston Quarry
nor the owners of Rush Creek asserted their companies had an
interest in the quarried rock, the subject of Beekman’s com-
plaint, the trial court could enter an order on the subject of
Beekman’s complaint without affecting them, and they were
not indispensable parties to the claims. We hold that the trial
court erred in finding that it lacked subject matter jurisdiction
due to Beekman’s failure to join the businesses as indispensa­
ble parties to the lawsuit.
3. Failure to State Claim
The trial court found that “[a]lternatively, even absent the
jurisdictional defects set forth above, the Court finds certain
of [Beekman’s] claims should be further dismissed for failure
to state a claim upon which relief can be granted.” The court
then went on to hold that in applying a § 6-1112(b)(6) analysis,
Beekman’s claims should be dismissed because (a) Beekman’s
claims sounding in contract, unjust enrichment, and fraud
violated the statute of frauds; (b) Beekman’s claim for fraud
failed to plead the claim with particularity; and (c) Beekman’s
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Cite as 30 Neb. App. 676claims sounding in contract, unjust enrichment, conversion,
and fraud were brought in violation of the statute of limita-
tions. Beekman assigns error to certain of these findings, and
we will address his specific assignments.
[14] To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts, accepted as
true, to state a claim to relief that is plausible on its face. Eadie
v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
[15] Nebraska is a notice pleading jurisdiction. Burklund
v. Fuehrer, 299 Neb. 949, 911 N.W.2d 843 (2018). 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. Id.The ­rationale for this 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. Id.[16] In cases in which a plaintiff does not or cannot allege
specific facts showing a necessary element, the factual allega-
tions, 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.
Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).
(a) Statute of Frauds
Beekman first contends that the district court erred when it
granted the Appellees’ motion to dismiss his contract claim for
failure to state a claim because his claim violated the statute
of frauds. The district court found that, as pled, Beekman’s
claims sounding in contract, unjust enrichment, and fraud were
barred by the statute of frauds. Beekman only assigns this error
in connection with his contract claim and not the court’s order
dismissing his unjust enrichment and fraud claim. Neb. U.C.C.
§ 2-201(1) (Reissue 2020), which governs the Nebraska statute
of frauds, states:
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Cite as 30 Neb. App. 676Except as otherwise provided in this section a contract
for the sale of goods for the price of five hundred dollars
or more is not enforceable by way of action or defense
unless there is some writing sufficient to indicate that a
contract for sale has been made between the parties and
signed by the party against whom enforcement is sought
or by his or her authorized agent or broker. A writing
is not insufficient because it omits or incorrectly states
a term agreed upon but the contract is not enforceable
under this paragraph beyond the quantity of goods shown
in such writing.
However, the Uniform Commercial Code contains an excep-
tion to the writing requirement. Section 2-201(3) states in per-
tinent part that “[a] contract which does not satisfy the require-
ments of subsection (1) but which is valid in other respects is
enforceable . . . (c) with respect to goods for which payment
has been made and accepted or which have been received and
accepted (section 2-606).” Further, Neb. U.C.C. § 2-606(1)
(Reissue 2020) provides, in pertinent part, that “[a]cceptance of
goods occurs when the buyer . . . (c) does any act inconsistent
with the seller’s ownership . . . .”
The district court acknowledged these principles, but ulti-
mately summarized:
In short, [Beekman] does not sufficiently allege the
existence of a separate contract, exclusively for the sale
of rock, formed between [Beekman] and [the Appellees]
as individuals. Instead, it appears that [Beekman]
attempts to allege that the sale of rock was part of a
larger transaction, but his allegations are insufficient.
For all of the reasons identified above in the discussion
relating to the real party in interest, necessary parties,
and indispensable parties, the written contract for equip-
ment was plainly between entities and not individuals.
So, absent additional allegations, it is not a reasonable
inference that a contract between entities was somehow
amended to include obligations as between individuals,
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Cite as 30 Neb. App. 676and [Beekman] certainly does not make such an allega-
tion in his third Complaint.
But as we noted earlier in our discussion regarding the real
party in interest, we find that Beekman sufficiently alleged
that the individuals, and not the businesses, separately orally
negotiated for the sale of the quarried rock. Nor do we find that
allegation inconsistent with the written contract, which dealt
only with business equipment and not the quarried rock. As
we stated before, we find that in applying our liberal pleading
rules, Beekman sufficiently alleged that the individuals sepa-
rately orally contracted for the sale and purchase of the quar-
ried rock; that the Appellees, as individuals, took possession
thereof; and that the terms of sale required the Appellees to
make payment to Beekman upon subsequent sale of the quar-
ried rock. These allegations, taken as true, sufficiently state a
claim for an oral contract that does not facially violate the stat-
ute of frauds due to the writing exception found in § 2-201(3).
Stated differently, because we find that, on the face of the com-
plaint, Beekman sufficiently pled that the quarried rock sold
to the Appellees in their individual capacities was accepted by
them, we find the district court erred in dismissing Beekman’s
contract claim as facially violating the statute of frauds.
(b) Fraudulent Misrepresentation
Beekman next contends that the district court erred in dis-
missing his fraudulent misrepresentation claim for failing to
plead his claim with sufficient particularity.
Unlike Nebraska’s more liberal pleading rules discussed
above, Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008) provides that
“[i]n all averments of fraud, mistake, or undue influence, the
circumstances constituting fraud, mistake, or undue influence
shall be stated with particularity. Malice, intent, knowledge,
and other condition of mind of a person may be averred
generally.”
[17] In order to state a claim for fraudulent misrepresen-
tation under Nebraska law, a plaintiff must allege that (1) a
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BEEKMAN v. BEEKMAN
Cite as 30 Neb. App. 676representation was made; (2) the representation was false; (3)
when made, the representation was known to be false or made
recklessly without knowledge of its truth and as a positive
assertion; (4) the representation was made with the intention
that the plaintiff should rely on it; (5) the plaintiff did so rely
on it; and (6) the plaintiff suffered damage as a result. See
Zawaideh v. Nebraska Dept. of Health & Human Servs., 285
Neb. 48, 825 N.W.2d 204 (2013). Taken together, in order to
survive a motion to dismiss his fraud claim, Beekman was
required to plead the elements of his claim with sufficient
particularity. The Nebraska Supreme Court has explained that
allegations of fraud should be pled with sufficient particular-
ity. “‘“This means the who, what, when, where, and how: the
first paragraph of any newspaper story.”’” Chafin v. Wisconsin
Province Society of Jesus, 301 Neb. 94, 100, 917 N.W.2d 821,
825 (2018), quoting Great Plains Trust Co. v. Union Pacific R.
Co., 492 F.3d 986 (8th Cir. 2007), quoting DiLeo v. Ernst &
Young, 901 F.2d 624 (7th Cir. 1990).
After reviewing Beekman’s complaint, although we find that
Beekman’s general averments were sufficient to plead a claim
for an oral contract between the individuals separate and dis-
tinct from the written contract between the businesses, we find
Beekman did not state a claim of fraudulent misrepresentation
with sufficient particularity. For instance, although Beekman
generally claimed that “[t]he sale of the quarr[ied] rock was
separately negotiated on that same date between [Beekman]
and [the Appellees]” and that “[the Appellees] represented to
[Beekman] that they were buying the rock,” Beekman failed
to particularly allege what specific statements were made, by
whom, where the specific statements were made, and other
specific details associated with the Appellees’ purported state-
ments. Because Beekman failed to plead his claim of fraudu-
lent misrepresentation with sufficient particularity, we hold that
the district court did not err in dismissing this claim for failure
to state a claim upon which relief can be granted. And because
Beekman did not separately assign as error that the court
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Cite as 30 Neb. App. 676erred in refusing to allow him to amend this claim, we find that
the claim was properly dismissed from the lawsuit.
(c) Statute of Limitations
Next, Beekman contends that the district court erred when
it found that the statute of limitations barred his contract,
conversion, and fraud claims. He did not assign error in con-
nection with the court’s determination that the statute of limita-
tions barred his unjust enrichment claim; therefore, we do not
address it. Additionally, because we have already disposed of
Beekman’s cause of action for fraud as stated above, we need
not address additional arguments regarding that claim here.
[18,19] “An action upon a contract, not in writing, expressed
or implied, or an action upon a liability created by statute,
other than a forfeiture or penalty, can only be brought within
four years.” Neb. Rev. Stat. § 25-206 (Reissue 2016). Claims
of property conversion are likewise governed by a 4-year stat-
ute of limitations. See Neb. Rev. Stat. § 25-207 (Reissue 2016).
The general rule is that where a complaint does not disclose on
its face that it is barred by the statute of limitations, a defend­
ant must plead the statute as an affirmative defense, and, in
that event, the defendant has the burden to prove that defense.
Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).
Thus, if the complaint does not disclose that it is barred by
the statute of limitations, dismissal is improper. See Bonness v.
Armitage, 305 Neb. 747, 942 N.W.2d 238 (2020).
[20,21] A challenge that a pleading is barred by the statute
of limitations is a challenge that the pleading fails to allege
sufficient facts to constitute a claim upon which relief can
be granted. Carruth v. State, 271 Neb. 433, 712 N.W.2d 575(2006). 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. Rutledge v. City of Kimball, 304
Neb. 593, 935 N.W.2d 746 (2019).
Here, Beekman alleged that on August 1, 2016, the par-
ties, in their individual capacities, entered into a separate
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Cite as 30 Neb. App. 676oral agreement for the sale of the quarried rock. According to
Beekman, the Appellees first wanted to measure the piles of
rock to verify the quantity of rock on the premises; he drew
a map at that time providing the Appellees with the location
and description of the rock; and the Appellees agreed to pay
for the rock as the Appellees sold it while keeping track of the
tickets of sale. Beekman contends that the Appellees then sold
the rock, failed to keep him apprised of the sale as agreed, and
failed to pay him the amount due for the rock.
[22] In determining when the statute of limitations begins to
run in a contract action, the Nebraska Supreme Court stated:
“The statute of limitations begins to run against a cause
of action to recover the purchase price or value of goods
sold and delivered at the time of their delivery unless
there is some agreement as to the time or manner of pay-
ment different from that which the law implies, which is
that payment shall be made in cash on delivery. If a term
of credit is given to the buyer the statute begins to run
when, and only when, the period of credit has expired.”
T. S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb.
318, 325, 278 N.W.2d 596, 601 (1979).
[23] Here, Beekman alleged that the parties agreed to a dif-
ferent credit arrangement than the date of delivery. Specifically,
Beekman asserts that the Appellees were obligated to pay for
the delivered rock as it was sold. On the face of the complaint,
Beekman does not indicate when the rock was sold because
he alleges that the Appellees failed to inform him of the sale
date or dates. As such, because the statute of limitations, as
pled, would continue to run from the Appellees’ sale date
and because Beekman did not allege the sale date, it became
incumbent upon the Appellees to allege the statute of limita-
tions as an affirmative defense, and the burden shifted to them
to then prove it.
“It is an established principle of pleading that the plaintiff
need not in his [or her] pleading anticipate or negative
possible defenses, and accordingly, as a general rule, a
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Cite as 30 Neb. App. 676plaintiff, in order to recover, need not affirmatively show
in his [or her] complaint, declaration, petition, or state-
ment of claim, that the cause of action set forth therein is
not barred by the applicable statute of limitations, at least,
where the bar of the statute does not appear on the face of
the plaintiff’s pleading, but may leave it to the defendant
to assert the bar of the statute at the appropriate stage of
the proceeding.”
Westinghouse Elecric Supply Co. v. Brookley, 176 Neb. 807,
818, 127 N.W.2d 465, 472 (1964).
[24] Here, resolving all allegations and inferences in favor
of the nonmoving party, we hold the district court erred in
finding that the complaint facially disclosed that Beekman’s
contract claim was time barred. But we reach a different con-
clusion in relation to Beekman’s conversion claim. Conversion
is any unauthorized or wrongful act of dominion exerted over
another’s property which deprives the owner of his or her
property permanently or for an indefinite period of time. Brook
Valley Ltd. Part. v. Mutual of Omaha Bank, 285 Neb. 157,
825 N.W.2d 779 (2013). In his pleading, Beekman generally
avers, “If [the Appellees] deny there was an implied contract
for the sale, then they intentionally exerted unauthorized and
wrongful [dominion] over [Beekman’s] property, which has
deprived him of his property permanently.” Beekman alleged
that his quarry business was sold to the Appellees on August
1, 2016. He further alleged the contract for the sale of the
quarried rock was separately consummated between the indi-
viduals that same day. Taking Beekman’s allegations as true,
if the Appellees never intended to pay for the quarried rock
they obtained with the other business assets on August 1,
their alleged acts of wrongful dominion commenced to run on
August 1. Beekman did not file his lawsuit until September 9,
2020. We find that on the face of the complaint, Beekman’s
conversion claim is barred by the 4-year statute of limitations
found in § 25-207. Accordingly, we find that the district court
did not err in dismissing Beekman’s conversion claim from
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Cite as 30 Neb. App. 676the lawsuit for failing to state a claim upon which relief can
be granted.
VI. CONCLUSION
In sum, we find the court erred in finding it lacked subject
matter jurisdiction of Beekman’s claims. We further find that
the court erred in finding Beekman failed to state a claim for
which relief could be granted in his breach of contract claim.
We affirm the court’s dismissal of Beekman’s fraud and con-
version claims for those reasons set forth herein and do not
reach the issue of the court’s dismissal of Beekman’s unjust
enrichment claim because Beekman failed to assign error in
connection with the dismissal of that claim. The matter is
remanded for further proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.