DMK Biodiesel v. McCoy

    Nebraska Advance Sheets
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       DMK Biodiesel, LLC, a Nebraska limited liability
        company, and Lanoha RVBF, LLC, a Nebraska
           limited liability company, appellants, v.
                John McCoy et al., appellees.
                                   ___ N.W.2d ___

                        Filed May 24, 2013.     No. S-12-699.

 1.	 Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
     dismiss is reviewed de novo.
 2.	 Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
     dismissing a complaint, the appellate court accepts as true all facts which are
     well pled and the proper and reasonable inferences of law and fact which may be
     drawn therefrom, but not the plaintiff’s conclusion.
 3.	 Statutes: Appeal and Error. Statutory interpretation is a question of law that an
     appellate court resolves independently of the trial court.
 4.	 Motions to Dismiss: Rules of the Supreme Court: Pleadings. Because a
     motion pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) tests the legal sufficiency of
     the complaint, not the claim’s substantive merits, a court may typically look only
     at the face of the complaint to decide a motion to dismiss.
 5.	 Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R. Pldg.
     § 6-112(b)(6) should be granted only in the unusual case in which a plaintiff
     includes allegations that show on the face of the complaint that there is some
     insuperable bar to relief.
 6.	 Motions to Dismiss: Rules of the Supreme Court: Summary Judgment:
     Pleadings. Neb. Ct. R. Pldg. § 6-1112(b) provides that when matters outside
     the pleading are presented by the parties and accepted by the trial court with
     respect to a motion to dismiss under § 6-1112(b)(6), the motion shall be treated
     as a motion for summary judgment as provided in 

 to
     25-1336 (Reissue 2008) and the parties shall be given reasonable opportunity to
     present all material made pertinent to such a motion by statute.
 7.	 Judicial Notice: Motions to Dismiss: Rules of the Supreme Court:
     Summary Judgment: Pleadings. A court may take judicial notice of matters
     of public record without converting a motion to dismiss under Neb. Ct. R. Pldg.
     § 6-1112(b)(6) into a motion for summary judgment.
 8.	 Rules of the Supreme Court: Pleadings: Appeal and Error. Because
     Nebraska’s current notice pleading rules are modeled after the Federal Rules of
     Civil Procedure, appellate courts look to federal decisions for guidance.
 9.	 Motions to Dismiss: Pleadings. For purposes of a motion to dismiss, a trial court
     generally must ignore materials outside the pleadings, but it may consider some
     materials that are part of the public record or do not contradict the complaint, as
     well as materials that are necessarily embraced by the pleadings.
10.	 Complaints: Pleadings. Documents embraced by the complaint are not consid-
     ered matters outside the pleading.
                       Nebraska Advance Sheets
	                         DMK BIODIESEL v. McCOY	975
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11.	 ____: ____. Documents embraced by the pleadings are materials alleged in a
     complaint and whose authenticity no party questions, but which are not physi-
     cally attached to the pleading.
12.	 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.
13.	 Trial: Appeal and Error. An issue not presented to or decided on by the trial
     court is not an appropriate issue for consideration on appeal.

   Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Reversed and remanded with directions.
  David A. Domina and Brandon B. Hanson, of Domina Law
Group, P.C., L.L.O., for appellants.
  Daniel L. Lindstrom and Justin R. Herrmann, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellees John
McCoy et al.
   Steve Grasz and Andrew Weeks, of Husch Blackwell, L.L.P.,
for appellee Renewable Fuels Technology, LLC.
  Heavican, C.J., Connolly, Stephan, Miller-Lerman, and
Cassel, JJ.
    Heavican, C.J.
                      NATURE OF CASE
   DMK Biodiesel, LLC (DMK), and Lanoha RVBF, LLC
(Lanoha), filed suit against Renewable Fuels Technology, LLC
(Renewable Fuels), John McCoy, John Hanson, Phil High, and
Jason Anderson in the Buffalo County District Court alleging
fraudulent inducement. Renewable Fuels and the individual
defendants filed a motion to dismiss for failure to state a claim
and a motion to take judicial notice of the private placement
memorandum and the subscription agreements. Both motions
were granted, and DMK and Lanoha now appeal. Because the
private placement memorandum and the subscription agree-
ments are properly considered “matters outside the plead-
ing,” an evidentiary hearing was required. Accordingly, we
reverse the judgment of the district court and remand the cause
with directions.
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                        BACKGROUND
   Republican Valley Biofuels, LLC (RVBF), issued a confi-
dential private placement memorandum with an effective date
of May 7, 2007, seeking investors in a biodiesel production
facility. DMK and Lanoha invested $600,000 and $400,000
respectively in RVBF, which was being promoted by McCoy,
Hanson, High, and Anderson. Renewable Fuels is listed with
the Nebraska Secretary of State as the manager of RVBF.
   On August 17 and August 28, 2007, DMK and Lanoha,
respectively, entered into and executed separate subscrip-
tion agreements with RVBF. Paragraph 1 of the subscription
agreements states, “Subscriber understands that the offering
of limited liability company units . . . of the Company to
which this Subscription Agreement relates is being made only
pursuant to the Company’s Confidential Private Placement
Memorandum dated May 7, 2007, including the exhibits
attached and any supplements thereto . . . .” It further states
in paragraph 4.c. that “[s]ubscriber has relied solely upon the
information furnished in the Memorandum and Subscriber
has not relied on any oral or written representation or state-
ment, except as contained in the Memorandum, in making this
investment.” The private placement memorandum itself states
that “[n]o person has been authorized to make any represen-
tation or warranty, or give any information, with respect to
RVBF or the units offered hereby except for the information
contained herein.”
   On January 5, 2009, DMK and Lanoha filed a complaint
against Renewable Fuels, McCoy, Hanson, High, and Anderson
in Buffalo County District Court alleging that each defendant
fraudulently induced them to invest funds in RVBF. The origi-
nal complaint had three claims: (1) violations of the Securities
Act of Nebraska, see 

 et seq. (Reissue
2012), due to alleged misrepresentations and omissions by the
defendants; (2) violations of fiduciary duties; and (3) for an
accounting at law.
   Renewable Fuels promptly filed a motion to dismiss and a
motion to take judicial notice. Shortly thereafter, the individual
defendants filed similar motions. The motion to take judicial
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	                         DMK BIODIESEL v. McCOY	977
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notice requested the district court to take judicial notice of the
confidential private placement memorandum for RVBF and the
subscription agreements executed between RVBF and DMK
and Lanoha, respectively. All three documents were attached as
exhibits to the motion to dismiss.
   In response, DMK and Lanoha filed a motion to continue
hearing on the defendants’ Neb. Ct. R. Pldg. § 6-1112 (rule
12) motions to allow discovery. The motion stated, first, that
“[j]udicial notice is not permitted by Neb Rev Stat § 27-201 et
seq.” Second, the motion primarily argued that taking judicial
notice would convert the rule 12 motion into a summary judg-
ment motion.1 DMK and Lanoha argued that if the motion con-
verted, then they were entitled to conduct discovery pursuant to

 (Reissue 2008).2
   The district court granted the motion to dismiss and the
motion to take judicial notice. The court noted that the private
placement memorandum and the subscription agreements were
“an intricate part of the pleadings whether they are set forth
by [DMK and Lanoha] or not.” The district court thereafter
received the exhibits and considered the exhibits for purposes
of the motion to dismiss. On the motion to dismiss, the district
court found “as a matter of law that [DMK and Lanoha] are not
allowed to proceed with their causes of action for fraud, decep-
tion and misrepresentation arising from events occurring prior
to the execution of the subscription agreements.” The court
sustained the motion to dismiss, but allowed DMK and Lanoha
to file an amended complaint based on actions of RVBF and
the individual defendants after the entry of the subscription
agreement that violated the subscription agreement, private
placement memorandum, or the fiduciary obligations created
by those documents.
   DMK and Lanoha filed an amended complaint that asserted
postsale fiduciary duties were owed and breached, while also
seeking derivative relief. Litigation continued on the deriva-
tive claims until 2012, when the district court dismissed the

 1	
      See Doe v. Omaha Pub. Sch. Dist., 

, 

 (2007).
 2	
      See 

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amended complaint at the request of all parties. DMK and
Lanoha now appeal the September 29, 2009, dismissal of the
direct claims.

                  ASSIGNMENTS OF ERROR
   DMK and Lanoha allege, restated and summarized, that the
district court erred by taking judicial notice, entering judgment
without a proper summary judgment hearing, and dismissing
the claims, because the dismissal resulted in the defendants’
benefiting from the illegal sale of securities under § 8-1118(5)
of the Securities Act of Nebraska.

                    STANDARD OF REVIEW
   [1,2] A district court’s grant of a motion to dismiss is
reviewed de novo.3 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.4
   [3] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.5

                          ANALYSIS
               Conversion of Motion to Dismiss
   DMK and Lanoha’s main argument, found both in their
motion to continue hearing on the defendants’ rule 12 motions
to allow discovery and in their brief, is that by taking judicial
notice of the private placement memorandum and the sub-
scription agreements, the motion to dismiss transformed into
a motion for summary judgment, which required the district
court to hold a hearing. We agree.
   [4-6] Because a rule 12(b)(6) motion tests the legal suf-
ficiency of the complaint, not the claim’s substantive merits,
a court may typically look only at the face of the complaint

 3	
      Walentine, O’Toole v. Midwest Neurosurgery, ante p. 80, 

      (2013).
 4	
      

 5	
      State v. Ramirez, ante p. 203, 

 (2013).
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	                         DMK BIODIESEL v. McCOY	979
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to decide a motion to dismiss.6 Dismissal under rule 12(b)(6)
should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint
that there is some insuperable bar to relief.7 However, rule
12(b) provides that when matters outside the pleading are
presented by the parties and accepted by the trial court with
respect to a motion to dismiss under rule 12(b)(6), the motion
“shall be treated” as a motion for summary judgment as
provided in 

 to 25-1336 (Reissue
2008) and the parties shall be given reasonable opportu-
nity to present all material made pertinent to such a motion
by statute.8
   As a threshold matter, we must determine whether the dis-
trict court’s decision to judicially notice the private placement
memorandum and the subscription agreements transformed
the motion to dismiss into a motion for summary judgment.
Specifically, we must determine whether these documents are
considered to be “matters outside the pleading.”
   [7,8] We have previously held that a court may take judicial
notice of matters of public record without converting a rule
12(b)(6) motion to dismiss into a motion for summary judg-
ment.9 We have not addressed, however, whether underlying
written agreements can be judicially noticed without convert-
ing the motion. Because Nebraska’s current notice pleading
rules are modeled after the Federal Rules of Civil Procedure,
we look to federal decisions for guidance.10
   The Eighth Circuit has held that rule 12(b) is not permissive,
because it mandates that “‘[t]he motion shall be treated as one
for summary judgment . . . .’”11 According to the Eighth Circuit,

 6	
      Doe v. Omaha Pub. Sch. 

.
 7	
      

 8	
      

 9	
      Id.; In re Adoption of Kenten H., 

, 

 (2007);
      Ferer v. Erickson, Sederstrom, 

, 

 (2006).
10	
      Kellogg v. Nebraska Dept. of Corr. Servs., 

, 

      (2005).
11	
      BJC Health System v. Columbia Cas. Co., 

 (8th Cir.
      2003) (emphasis in original).
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“‘[m]ost courts . . . view “matters outside the pleading” as
including any written or oral evidence in support of or in oppo-
sition to the pleading that provides some substantiation for and
does not merely reiterate what is said in the pleadings.’”12 This
interpretation of the rule by the Eighth Circuit is “‘appropriate
in light of our prior decisions indicating a 12(b)(6) motion will
succeed or fail based upon the allegations contained in the face
of the complaint.’”13
   [9-11] For purposes of a motion to dismiss, “‘the court
generally must ignore materials outside the pleadings, but it
may consider some materials that are part of the public record
or do not contradict the complaint, as well as materials that
are necessarily embraced by the pleadings.’”14 These docu-
ments embraced by the complaint are not considered matters
outside the pleading.15 Documents embraced by the pleadings
are materials “‘alleged in a complaint and whose authentic-
ity no party questions, but which are not physically attached
to the pleading.’”16 The majority of circuits appear to agree
that the document must be referred to in the complaint and
must be central to the plaintiff’s claim.17 A prime example of

12	
      Gibb v. Scott, 

 (8th Cir. 1992) (quoting 5 Charles Alan
      Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (1969)).
13	
      BJC Health System v. Columbia Cas. Co., supra note 11, 

.
14	
      Miller v. Redwood Toxicology Laboratory, Inc., 

 (8th Cir.
      2012).
15	
      Enervations, Inc. v. Minnesota Mining, 

 (8th Cir. 2004).
16	
      Ashanti v. City of Golden Valley, 

 (8th Cir. 2012).
17	
      See, Romani v. Shearson Lehman Hutton, 

 (1st Cir. 1991)
      (superseded by statute on other grounds as stated in Greebel v. FTP
      Software, Inc., 

 (1st Cir. 1999)); Cortec Industries, Inc. v.
      Sum Holding L.P., 

 (2d Cir. 1991); Pension Ben. Guar. Corp.
      v. White Consol. Ind., 

 (3d Cir. 1993); New Beckley Min.
      v. International Union, UMWA, 

 (4th Cir. 1994); Weiner v.
      Klais and Co., Inc., 

 (6th Cir. 1997); Venture Associates v.
      Zenith Data Systems, 

 (7th Cir. 1993); Branch v. Tunnell, 

 (9th Cir. 1994), overruled on other grounds, Galbraith v. County
      of Santa Clara, 

 (9th Cir. 2002); GFF Corp. v. Associated
      Wholesale Grocers, Inc., 

 (10th Cir. 1997); Brooks v. Blue
      Cross and Blue Shield of Florida, 

 (11th Cir. 1997).
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documents “‘necessarily embraced’” by a pleading is a writ-
ten contract in a case that involves a dispute over the terms of
the contract.18
   RVBF and the individual defendants argue that the private
placement memorandum and the subscription agreements are
integral to and embraced by the complaint. Specifically, they
contend that when a securities offering is made pursuant to
written memorandum, a plaintiff investor “is not permitted
to assert a securities action without reference to the offer-
ing memorandum.”19
   In support of their argument, RVBF and the individual
defend­ants cite the Second Circuit’s decision in Cortec
Industries, Inc. v. Sum Holding L.P.20 In Cortec Industries,
Inc., Cortec Acquisitions, Inc., entered into a stock purchase
agreement with the defendants. The stock purchase agreement
contained certain representations and warranties, as well as cer-
tain conditions precedent to the purchase. Cortec Acquisitions
brought a complaint alleging repeated fraudulent or negligent
misrepresentations and omissions. All of the defendants moved
for a motion to dismiss the complaint for failure to state a
claim, and the motions were granted. Attached to the motions
were paper copies of the warrant, the offering memorandum,
and the stock purchase agreement.
   The sole issue decided by the Second Circuit was whether
the warrant, the offering memorandum, and the stock pur-
chase agreement could be considered when ruling on the
motion to dismiss the complaint for failure to state a claim.
The Second Circuit held that the district court could rely
on the documents without converting the motion to dismiss
into a motion for summary judgment. In support, the Second
Circuit stated that
      when a plaintiff chooses not to attach to the complaint
      or incorporate by reference a prospectus upon which it
      solely relies and which is integral to the complaint, the

18	
      See Young v. Principal Financial Group, Inc., 

      (S.D. Iowa 2008).
19	
      Brief for appellees McCoy et al. at 29.
20	
      Cortec Industries, Inc. v. Sum Holding 

.
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      defendant may produce the prospectus when attacking the
      complaint for its failure to state a claim, because plaintiff
      should not so easily be allowed to escape the conse-
      quences of its own failure.21
The Second Circuit concluded:
      Despite the fact that the documents attached to [a defend­
      ant’s] motion to dismiss were neither public disclosure
      documents required by law to be filed with the SEC, nor
      documents actually filed with the SEC, nor attached as
      exhibits to the complaint or incorporated by reference
      in it, the district court was entitled to consider them
      in deciding the motion to dismiss. The stock purchase
      agreement, [the] offering memorandum, and the warrant
      were documents plaintiffs had either in its possession or
      had knowledge of and upon which they relied in bring-
      ing suit.22
The Second Circuit acknowledged that “in drafting their com-
plaint plaintiffs relied upon documents transmitted to them by
defendants, though they neglected to attach these papers to, or
incorporate them by reference in, the complaint.”23
   In contrast, in BJC Health System v. Columbia Cas. Co.,24
the Eighth Circuit addressed whether underlying contractual
documents were considered matters outside the pleading.
Columbia Casualty Company (Columbia) provided reinsurance
to a subsidiary of BJC Health System (BJC) and executed con-
tracts for 2 years. BJC filed a complaint alleging that Columbia
was obligated to fix the premium for a third year because
of a separate premium-guarantee contract. BJC alleged that
Columbia breached the premium-guarantee contract. Columbia
moved to dismiss for failure to state a claim. Attached to the
motion to dismiss by Columbia were three documents, two of
which were the reinsurance documents and a third which was a
reinsurance quotation letter from Columbia. The district court

21	
      

 (emphasis supplied).
22	
      

 (emphasis supplied).
23	
      

.
24	
      BJC Health System v. Columbia Cas. Co., supra note 11.
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	                           DMK BIODIESEL v. McCOY	983
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accepted the documents and used them to dismiss BJC’s claim.
BJC appealed.
   The Eighth Circuit concluded that the three documents
provided by Columbia with the motion to dismiss constituted
matters outside the pleading.25 The Eighth Circuit found that
although BJC had alleged the existence of a contract, it did
not allege a specific document and the documents provided
by Columbia were neither undisputed nor the sole basis of
the complaint.26 The court noted that the documents were
provided in opposition to the complaint and that the purpose
of the documents was to discredit and contradict BJC’s alle-
gations.27 Therefore, the court concluded the documents were
not embraced by the complaint and constituted matters outside
the pleading.28
   Here, our independent review of the complaint reveals that
DMK and Lanoha did not rely on the private placement memo-
randum and the subscription agreements in drafting the com-
plaint. In fact, the complaint never mentions either the private
placement memorandum or the subscription agreements. Nor
does the complaint rely on the rights or obligations outlined by
the documents. This is not the paradigmatic case of a party’s
seeking to enforce a contract and not attaching the contract
to the complaint. Cortec Industries, Inc. is unhelpful in our
analysis, because that was a case in which “[p]laintiffs sought
damages and rescission of a stock purchase agreement alleg-
edly entered into in violation of the securities laws, civil RICO,
and the common law.”29
   Here, the fraud and misrepresentations relied upon by DMK
and Lanoha were oral statements made before the execution
of the subscription agreements. The complaint does not allege
that the documents themselves were fraudulently or negli-
gently misrepresented.

25	
      

26	
      

27	
      

28	
      

29	
      Cortec Industries, Inc. v. Sum Holding 

, 

.
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   RVBF and the individual defendants argue that we should
not allow plaintiffs to artfully draft a complaint so as to avoid
referencing a document on which the lawsuit hinges. In this
instance, the plaintiffs may have purposefully avoided refer-
encing the private placement memorandum and the subscrip-
tion agreements. However, their choice not to reference the
documents and, more important, their choice to not embrace
the documents were not improper. Even if DMK and Lanoha
had chosen to reference the private placement memorandum
and the subscription agreements in the complaint, it would
not have changed the outcome of this case. Mere reference,
without more, to the private placement memorandum and the
subscription agreements would not be enough to establish that
the complaint embraces those documents.
   Because both the private placement memorandum and the
subscription agreements are not clearly embraced by DMK
and Lanoha’s complaint, when the district court accepted and
took into consideration the private placement memorandum
and the subscription agreements, the court took into consider-
ation matters outside the pleading. This transformed the motion
to dismiss into a motion for summary judgment. Pursuant
to § 25-1332, DMK and Lanoha were entitled to a sum-
mary judgment hearing and no hearing was held.30 This error
requires reversal.

               R emaining Assignments of Error
   [12] DMK and Lanoha also argue in their brief that the
private placement memorandum and the subscription agree-
ments were not properly the subject of judicial notice. But,
whether taking judicial notice was proper is not necessary to
our adjudication. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it.31
   [13] Finally, DMK and Lanoha argue that the Securities Act
of Nebraska prevents a securities seller who engages in fraud

30	
      See Doe v. Omaha Pub. Sch. 

.
31	
      In re Trust Created by Hansen, 

, 

 (2011).
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from using a written contract to effectuate the fraud committed.
In other words, DMK and Lanoha contend that the substantive
law protects securities purchasers from sellers by refusing to
enforce exculpatory clauses in prospectuses, private placement
memorandums, or subscription agreements. This issue was
not addressed by the district court. An issue not presented to
or decided on by the trial court is not an appropriate issue for
consideration on appeal.32 Furthermore, determining this issue
is not necessary to our adjudication.

                         CONCLUSION
   The district erred by granting the motion to dismiss. When
the district court took judicial notice of the private placement
memorandum and the subscription agreements, the motion
to dismiss transformed into a motion for summary judg-
ment, which requires an evidentiary hearing. No such hearing
was held.
                     R eversed and remanded with directions.
   McCormack, J., participating on briefs.
   Wright, J., not participating.

32	
      State v. Nadeem, 

, 

 (2012).




                 Kimberly L. Hynes, appellee, v. Good
                   Samaritan Hospital, a Nebraska
                  nonprofit corporation, appellant.
                                   ___ N.W.2d ___

                        Filed May 24, 2013.     No. S-12-810.

 1.	 Workers’ Compensation: Appeal and Error. A judgment, order, or award of
     the Workers’ Compensation Court may be modified, reversed, or set aside only
     upon the grounds that (1) the compensation court acted without or in excess of its
     powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
     sufficient competent evidence in the record to warrant the making of the order,
     judgment, or award; or (4) the findings of fact by the compensation court do not
     support the order or award.
 2.	 ____: ____. In determining whether to affirm, modify, reverse, or set aside a
     judgment of the Workers’ Compensation Court review panel, a higher appellate