IN THE DISTRICT COURT OF GEARY COUNTY, KANSAS

THE UNIVERSITY NATIONAL BANK,                           )

                                                                         Plaintiff,          )

       vs.                                                                                      )           Case No. 2009 CV 174

                                                                                                           )           Division 4

STEVEN LUKE OEHLERT,                                                )           Chapter 60

SHERIDYN J. OEHLERT,                                                  )

    Defendants/Counterclaim/Cross-Claim/Third Party        )

                                                                        Plaintiffs,        )

                                                                                                )

     vs.                                                                                      )

                                                                                                )

BIG D DEVELOPMENT LLC,                                            )

                             Defendant/Cross-Claim Defendant,         )

                                                                                                )

    and                                                                                      )

                                                                                                )

TROY A. GREGORY, DAVID R. FREEMAN,                 )

TROY A. LETOURNEAU, JOHN DUNCAN,                    )

BRENNAN P. FAGAN, WILLIAM J. SKEPNEK,            )

JMD LLC and OPPORTUNE LLC,                        )

                                       Third-Party Defendants,                 )

________________________________________________)

ORDER

            This matter comes on for hearing upon the Motion of Big D Development and third party defendants John Duncan, Brennan Fagan, William Skepnek, JMD LLC and Opportune LLC (hereinafter referred to as defendants) to dismiss certain third party claims and cross claims made by defendants and third party plaintiffs Steven Luke Oehlert and Sheridyn J. Oehlert.

            Specifically, the defendants move to dismiss cross claims Count II, Count V and Count VIII against Big D Development LLC and Count II, Count V, Count VI, Count VII and Count VIII against John Duncan, Brennan Fagan, William Skepnek, JMD LLC and Opportune LLC.  Defendants’ claim contend that the cross claims against them fail to state a claim upon which relief may be granted.  They have filed a brief in support of their motion to dismiss.  Defendants and third party claimants have filed their reply and the matter has been heard upon oral argument on December 15, 2009.  The court took the matter under advisement and for the reasons as stated herein, the motions to dismiss by the defendants are denied.

            The court has considered the pleadings as stated in the amended answer and counter claim, cross claim and third party petition as filed herein by the Steven and Sheridyn Oehlert.

            When a motion to dismiss under K.S.A. 60-212(b)(6), raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well pleaded facts in plaintiff’s petition.  Halley v. Barnabe, 271 Kan. 652, 24P.3d 140 (2001).  “The question for determination is whether in the light most favorable to the plaintiff and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief.  Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” 271 Kan. At 656, 24 P.3d 140.

            Count II alleges fraud.  In regard to that claim, the defendants contend that the pleadings fail to comply with K.S.A. 60-209(b).  The Oehlerts contend in their pleadings that one of the purposes of the transaction involving the Oehlerts was to free up lending capacity and release personal guarantees for the invested defendants.  The allegations by the Oehlerts are that all of these entities as corporations and also as individuals signed the note in question with the University National Bank.  Further believe and allege that they were induced into their actions by the defendants and were mislead about where the proceeds of their $400,000.00 would go.  The exhibits attached by third party claimants show that the proceeds went, not only to pay taxes, etc. but also personally to some of the third party defendants.

            Third party plaintiffs have stated with particularity the time and place of various meetings which occurred at a Mexican restaurant in Junction City, at the Hereford  House in Lawrence and at the University National Bank in Lawrence, Kansas.  Since the initial filing of the lawsuit, claimants have uncovered a series of emails marked Exhibit A in their response.  Certainly the email could be construed in several different ways, however, at this point in time the court must construe the pleadings most favorably to the claimants and having done so, the court finds that the claimants have stated with particularity a claim for fraud against all defendants herein and therefore defendants’ motion for dismissal for failure to state a claim must be denied.

            Defendants also move for dismissal of the civil conspiracy count, the count requesting rescission of the contract and the count alleging unjust enrichment.  Construing the pleadings in a light most favorable to the claimants, the court finds that the cross petition states a claim upon its relief may be granted on the counts stated  and therefore the motion to dismiss is denied.

            As to the alleged individual liability for breach of contract, the court has reviewed the pleadings against the individual defendants Freeman, Letourneau, Duncan, Fagan and Skepnek. The Oehlerts argue that the individuals are jointly liable under the terms of the contract because they prepared the contract and that the contract is ambiguous and further, that they benefited by the contract with the Oehlerts because of the release of the personal guarantees on the loan assumed by the Oehlerts.

            The court, having reviewed the pleadings and giving beneficial references to the claimants, finds that there are ambiguities in the contract which, at this point in the proceedings, make it impossible for the court to determine liability for breach thereof.    At this time, the court is unable to conclude, as a matter of law, whether or not the individuals are liable for breach of contract under the terms as stated on Exhibit B and therefore the court takes that issue under advisement for decision after the close of discovery.

            IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that except as taken under advisement herein, the motions of the third party defendants and cross claim defendants are hereby denied.

            IT IS BY THE COURT SO ORDERED.

                                                                        __________________________________

                                                                        STEVEN HORNBAKER

                                                                        District Judge

CERTIFICATE OF MAILING

            I, Lynn Hartung, Deputy Clerk of the District Court of Geary County, Kansas, do hereby certify that a copy of the Order was mailed to the following persons, postage prepaid, by the United States Mail, or was placed in the official mail box at the Geary County Courthouse on the _____ day of December, 2009, to-wit:

                                                                                    __________________________

                                                                                    Lynn Hartung, Deputy Clerk

                                                                                    Geary County, Kansas