Johnson v. Woodhouse Ford Auto Family , 31 Neb. Ct. App. 587 ( 2023 )

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587Vernon R. Johnson, appellant, v. Woodhouse
Ford Auto Family, appellee.
___ N.W.2d ___
Filed February 14, 2023. No. A-22-048.
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 by
an appellate court, accepting the factual allegations in the complaint as
true and drawing all reasonable inferences of law and fact in favor of the
nonmoving party.
2. 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.
3. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R.
Pldg. § 6-1112(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.
4. Motions to Dismiss: Rules of the Supreme Court: Summary
Judgment: Pleadings. When matters outside the pleadings are pre-
sented by the parties and accepted by the trial court with respect to a
motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), the motion
shall be treated as a motion for summary judgment and the parties shall
be given a reasonable opportunity to present all material made pertinent
to such a motion by statute.
5. Summary Judgment: Motions to Dismiss: Notice. When receiving
evidence which converts a motion to dismiss into a motion for summary
judgment, it is important that the trial court give the parties notice of
the changed status of the motion and a reasonable opportunity to pre­
sent all material made pertinent to such a motion by the rules governing
summary judgment.
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31 Nebraska Appellate Reports
JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Reversed and remanded for further
proceedings.
Vernon R. Johnson, pro se.
Stephen G. Olson II and Jacob A. Enenbach, of Engles,
Ketcham, Olson & Keith, P.C., for appellee.
Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Moore, Judge.
INTRODUCTION
Vernon R. Johnson brought an action in the district court
for Douglas County against Woodhouse Ford Auto Family
(Woodhouse) in Omaha, Nebraska, asserting various causes
of action after Woodhouse allegedly reported a theft of one
of its vehicles by Johnson. Woodhouse filed a motion to
dismiss Johnson’s amended complaint for failure to state a
claim for relief. The district court received evidence offered
by Woodhouse at the hearing and granted the motion to
dismiss. Johnson was not present at the hearing. When the
court received evidence in support of Woodhouse’s motion to
dismiss, the motion was converted to a motion for summary
judgment under Neb. Ct. R. Pldg. § 6-1112(b). Because the
parties were not given sufficient notice of that conversion
and Johnson was not provided with a reasonable opportunity
to present any material he might find relevant to a motion
for summary judgment, we reverse, and remand for fur-
ther proceedings.
STATEMENT OF FACTS
Johnson filed his initial complaint against Woodhouse on
March 9, 2021, and Woodhouse answered, admitting that
Johnson was a person presently confined within the Nebraska
Department of Correctional Services in Tecumseh, Nebraska,
and that Woodhouse was located at a particular address in
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Nebraska Court of Appeals Advance Sheets
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JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587Omaha, but generally denying Johnson’s substantive allega-
tions and setting forth various affirmative defenses.
Johnson filed motions for discovery and production of docu-
ments on June 1, 2021. The record on appeal does not include
any orders ruling on these motions.
Johnson sought leave to file an amended complaint, which
was granted by the district court, and he filed an amended
complaint on September 27, 2021. In his operative complaint,
Johnson alleged that he visited a Woodhouse dealership on
June 3, 2019, to discuss purchasing a vehicle with a sales
agent. Thereafter, the parties engaged in various communica-
tions, and Johnson returned to the dealership to test drive a
vehicle and submit a loan application. Johnson alleged that
he was advised by the sales agent that he was approved for a
downpayment of $1,000 and that he must submit two pay stubs
to secure a bank loan for the amount of $30,000. Johnson and
the agent then looked at a “2018 Ford Eco Sport SUV” with a
purchase price around $28,000. Johnson advised that he could
not make the downpayment until the first week of July, but
that he would deliver his pay stubs. According to Johnson, he
subsequently received messages from Woodhouse representa-
tives, indicating that they wanted him to take possession of the
vehicle. On June 19, Johnson signed the required documents
and took possession of the vehicle.
Johnson further alleged that he was out of town during the
weekend of June 21, 2019, and that he received messages
from Woodhouse “indicating the return of the vehicle.” Upon
returning to Omaha, Johnson was driving the vehicle when he
was arrested for having a stolen vehicle. Johnson was advised
that Woodhouse had filed a police report, and he was charged
with “‘Theft by Receiving Stolen Property over $5,000.00.’”
He was thereafter confined to jail for 6 months until the dis-
trict court dismissed the charges in the criminal case. In his
operative complaint, Johnson alleged that the vehicle was
seized by the police, that Woodhouse later took possession
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JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587of the vehicle, and that there was personal property in it
belonging to Johnson valued at $7,000. He alleged that he con-
tacted Woodhouse and was told that Woodhouse no longer had
the property in its possession.
Johnson asserted claims for (1) “BREACH OF CONTRACT
AND TORTIOUS INTERFERENCE,” (2) “FRAUD MIS­
REP­RESENTATION,” (3) “FALSE IMPRISONMENT AND
WRONGFUL DETENTION; IN VIOLATION OF THE 4th
AND 8th AMENDMENT TO THE STATE AND FEDERAL
CONSTITUTIONS,” and (4) “NEGLIGENCE - LOSS OF
PERSONAL PROPERTY.” Johnson sought damages in the
amount of $2,000,000 (punitive and general), along with $7,000
for loss of personal property.
Woodhouse filed a motion to dismiss the amended complaint
pursuant to § 6-1112(b)(6) for failure to state a claim upon
which relief can be granted.
A hearing was held on Woodhouse’s motion to dismiss on
December 22, 2021. Johnson did not appear at the hearing,
although he had filed a motion the day before the hearing ask-
ing to appear virtually, which request was denied by the district
court as untimely. Woodhouse offered an exhibit at the hearing,
characterized by Woodhouse’s attorney as “the car applica-
tion for the subject vehicle,” which included the purchase
agreement for the vehicle, dated June 19, 2019, and related
documents. The purchase agreement provided that it may be
conditioned upon the acceptance or approval by a third-party
financial institution and that if approval is not obtained, the
agreement and related documents are null and void. An addi-
tional document in the exhibit is a notice from Woodhouse to
Johnson, also dated June 19, 2019, which indicates that after
reviewing Johnson’s credit file, a “deal was not agreed to.” The
court received briefs from both parties (which are not in our
record) and took the matter under advisement.
On January 6, 2022, the district court entered an order grant-
ing the motion to dismiss. Johnson appeals.
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JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587ASSIGNMENT OF ERROR
Johnson assigns, restated and summarized, that the district
court erred in granting the motion to dismiss his amended
complaint.
STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo by an appellate court, accepting
the factual allegations in the complaint as true and drawing all
reasonable inferences of law and fact in favor of the nonmov-
ing party. Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins.
Co., 312 Neb. 629, 980 N.W.2d 437 (2022).
ANALYSIS
Johnson asserts that the district court erred in granting the
motion to dismiss his amended complaint. In their briefs on
appeal, both parties have treated Woodhouse’s motion as a
motion to dismiss under § 6-1112(b)(6), rather than as a motion
for summary judgment. However, the court received evidence
submitted by Woodhouse at the hearing on Woodhouse’s
motion to dismiss, converting the motion into a motion for
summary judgment.
[2,3] Because a motion pursuant to § 6-1112(b)(6) tests the
legal sufficiency of the complaint, not the claim’s substan-
tive merits, a court may typically look only at the face of the
complaint to decide a motion to dismiss. In re Interest of Noah
B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017). Dismissal
under § 6-1112(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. Vasquez v. CHI Properties, 302 Neb. 742, 925 N.W.2d
304 (2019).
[4,5] However, when matters outside the pleadings 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
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587and the parties shall be given a reasonable opportunity to pre­
sent all material made pertinent to such a motion by statute.
Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789(2015). When receiving evidence which converts a motion to
dismiss into a motion for summary judgment, it is important
that the trial court give the parties notice of the changed status
of the motion and a reasonable opportunity to present all mate-
rial made pertinent to such a motion by the rules governing
summary judgment. Britton v. City of Crawford, 282 Neb. 374,
803 N.W.2d 508 (2011).
A court’s failure to give notice of the conversion of a
motion to dismiss into a motion for summary judgment,
however, is not dispositive. The Nebraska Supreme Court
has stated that “the purpose of the notice is to give the party
sufficient opportunity to discover and bring forward factual
matters which may become relevant in the summary judg-
ment context, as distinct from the dismissal context.” Corona
de Camargo v. Schon, 278 Neb. 1045, 1050, 776 N.W.2d 1,
6 (2009). In Corona de Camargo, the Supreme Court found
no prejudice from the conversion of motions to dismiss into
motions for summary judgment without notice where the
plaintiff was given a reasonable opportunity to present rele-
vant evidence and argument on the statute of limitations issue
upon which the motions to dismiss were based. On appeal,
the plaintiff conceded that the facts with respect to the statute
of limitations issue were not in dispute. The Supreme Court
found no prejudice because the motions presented an issue of
law, and the plaintiff was notified of that issue in the motions
to dismiss.
In Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb.
466, 730 N.W.2d 798 (2007), the plaintiff did not object when
the defendants offered exhibits at a hearing on a motion to
dismiss. On appeal, the plaintiff argued that the trial court
erred in converting the motion to dismiss into a motion for
summary judgment, but the Supreme Court observed that the
plaintiff had been given the opportunity to offer evidence
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JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587in opposition but had declined do so. The Supreme Court
was unable to determine whether the plaintiff had raised the
issue of the motion’s conversion below, but it concluded that
whether the trial court erred in its procedure was not disposi-
tive and declined to resolve the case on that basis.
This court considered the conversion of a motion to dismiss
into a motion for summary judgment in Hedglin v. Esch, 25
Neb. App. 306, 905 N.W.2d 105 (2017). In that case, the trial
court received exhibits into evidence before granting a motion
to dismiss. On appeal, this court first noted that the plaintiff
had not assigned error to the conversion of the motion to dis-
miss into a motion for summary judgment. We found it clear
from the record that the plaintiff was aware exhibits would be
offered at the hearing on the motion to dismiss, did not object
to their offer, and declined to offer evidence in opposition
after being given the opportunity to do so. We also noted that
the motion was based on an issue of law and that the facts rel-
evant to that issue were undisputed. Accordingly, we applied
a summary judgment standard of review in considering the
issues raised on appeal.
The present case is more like Crane Sales & Serv. Co. v.
Seneca Ins. Co., 276 Neb. 372, 754 N.W.2d 607 (2008). In
that case, there was no indication at the trial court level or on
appeal that either the trial court or the parties recognized that
the motion to dismiss had been converted to a motion for sum-
mary judgment. The plaintiff did not object to the defendant’s
offer of an affidavit at the hearing on the motion to dismiss,
did not introduce any of its own evidence, and was not given
an opportunity to do so. The record did not show that the
trial court had explicitly alerted the parties to the fact that the
motion had been converted to a motion for summary judg-
ment. And, there was no indication from the record that the
plaintiff was given the opportunity to conduct discovery. On
appeal, in their briefs and at oral argument, the parties con-
tinued to maintain that the motion in question was a motion
to dismiss. However, the plaintiff argued that if allowed
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Nebraska Court of Appeals Advance Sheets
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JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587discovery, it could prove a relevant issue. The Supreme Court
concluded that adequate notice of the conversion from a
motion to dismiss to a motion for summary judgment had not
been provided to the parties and that the plaintiff had not been
given a reasonable opportunity to present pertinent material.
The Supreme Court reversed, and remanded for further pro-
ceedings. See, also, DMK Biodiesel v. McCoy, 285 Neb. 974,
830 N.W.2d 490 (2013) (trial court’s failure to hold hearing
after taking into consideration matters outside pleadings on
motion to dismiss, transforming motion to dismiss into motion
for summary judgment, required reversal).
In the present case, the district court received the vehicle
application documents offered by Woodhouse into evidence at
the hearing on its motion to dismiss. Accordingly, we conclude
that under § 6-1112(b), Woodhouse’s motion to dismiss for
failure to state a claim was converted to a motion for sum-
mary judgment.
As to whether the district court provided the parties ade-
quate notice of that conversion and whether Johnson was
provided with a reasonable opportunity to present all material
pertinent to such a motion, we first observe that Johnson, who
was incarcerated at the time, did not appear at the December
22, 2021, hearing, and the district court denied as untimely
Johnson’s motion to appear via videoconference that had
been filed the day before. In doing so, the court noted that
Woodhouse’s amended notice of hearing had been mailed to
Johnson on November 1, which the court reasoned would
have given Johnson “at least six weeks” to make his request
to appear virtually. Then, without acknowledging that the
admission of evidence would require it to treat the motion to
dismiss as a motion for summary judgment, the court asked
whether Woodhouse had any evidence, thereafter receiving
the exhibit offered by Woodhouse. Following a brief argument
from Woodhouse, the court stated that it would review the
briefs it had received from the parties and issue its decision
in writing.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
JOHNSON V. WOODHOUSE FORD AUTO FAMILY
Cite as 31 Neb. App. 587In their briefs on appeal, the parties have treated Woodhouse’s
motion as a motion to dismiss under § 6-1112(b)(6), rather
than as a motion for summary judgment. Johnson did file
motions for discovery, although the record does not clearly
indicate whether any discovery was actually conducted.
Johnson referred in his amended complaint to at least some of
the vehicle application paperwork found in exhibit 1, but he
did not attach any of the documents he referenced, and it is not
clear whether he was aware of all of the documents included in
Woodhouse’s exhibit.
We conclude that adequate notice of the conversion from a
motion to dismiss to a motion for summary judgment was not
provided and that Johnson was not given a reasonable oppor-
tunity to present all material pertinent to a motion for sum-
mary judgment. Therefore, we reverse, and remand for fur-
ther proceedings.
CONCLUSION
The district court erred in granting the motion to dismiss.
When it received the evidence offered by Woodhouse, the
motion to dismiss was converted into a motion for summary
judgment. The parties were not given sufficient notice of that
conversion, and Johnson was not provided with a reasonable
opportunity to present any material he might find relevant to
a motion for summary judgment. Accordingly, we reverse the
district court’s judgment and remand the cause to the district
court for further proceedings.
Reversed and remanded for
further proceedings.