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Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

Donna Tryon and Ryan Sellers, appellants, 

v. City of North Platte, Nebraska, 

et al., appellees.

___ N.W.2d ___

Filed February 3, 2017. No. S-15-1156.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

2. ____: ____. 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 conclusions.

3. Motions to Dismiss: Pleadings. 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. 

In cases in which a plaintiff does not or cannot allege specific facts 

showing a necessary element, the factual allegations, taken as true, are 

nonetheless plausible if they suggest the existence of the element and 

raise a reasonable expectation that discovery will reveal evidence of the 

element or claim.

4. 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.

5. 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.

6. ____: ____. A plaintiff’s allegations do not need to be set forth as a 

separate claim in the complaint to sustain a cause of action.

7. Motions to Dismiss. Even novel issues may be determined on a motion 

to dismiss for failure to state a claim where the dispute is not as to the 

underlying facts but as to the interpretation of the law.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/03/2017 09:08 AM CST
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Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

8. Motions to Dismiss: Records. As a general rule, important questions 

of novel impression should not be decided on a motion to dismiss when 

the underlying facts are unclear and development of the record will aid 

in resolving the legal issues.

Appeal from the District Court for Lincoln County: Donald

E. Rowlands, Judge. Reversed and remanded for further 

proceedings.

J.L. Spray and Ryan K. McIntosh, of Mattson Ricketts Law 

Firm, for appellants.

Douglas L. Stack for appellee City of North Platte.

David Pederson, of Pederson & Troshynski, for appellees Trent Kleinow, Dr. James Smith, and Priority Medical 

Transport, L.L.C.

Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and 

Funke, JJ.

Funke, J.

INTRODUCTION

Donna Tryon and Ryan Sellers (collectively appellants) 

appeal from a district court order dismissing with prejudice their amended complaint. Appellants seek to invalidate 

a contract between the City of North Platte, Nebraska (North 

Platte), and Priority Medical Transport, L.L.C., because North 

Platte provided insufficient notice of its conflict of interest 

with Priority Medical Transport before awarding the contract. We conclude the court erred in dismissing appellants’ 

amended complaint, because it contains causes of action under 

both Neb. Rev. Stat. § 84-1411 (Reissue 2014) of the Open 

Meetings Act and Neb. Rev. Stat. § 49-14,102 (Cum. Supp. 

2016) of the Nebraska Political Accountability and Disclosure 

Act. Therefore, the court’s order dismissing appellants’ 

amended complaint is reversed, and the cause is remanded for 

further proceedings.
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Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

FACTS

Priority Medical Transport is an ambulance company owned, 

in two-thirds part, by two employees of the North Platte Fire 

Department: Trent Kleinow—the assistant fire chief—and Dr. 

James Smith—the medical director. (Priority Medical Transport, 

Kleinow, and Smith are hereinafter collectively referred to as 

“Priority Medical.”) In July 2015, Priority Medical applied for 

a $500,000 grant from the North Platte Quality Growth Fund 

(Quality Growth Fund). The Quality Growth Fund Citizens 

Review Committee (CRC) reviews Quality Growth Fund applications and provides recommendations to the North Platte City 

Council (City Council) on what Quality Growth Fund applications should be approved.

The CRC met, ad hoc, to consider Priority Medical’s application. Despite that the application was for a $500,000 grant, 

the CRC provided a recommendation to the City Council to 

provide Priority Medical a $350,000 loan. Priority Medical 

did not revise or refile its application with the Quality Growth 

Fund to reflect the changes. At its July 2015 meeting, the City 

Council awarded Priority Medical the $350,000 loan contract.

Appellants filed a complaint in August 2015 alleging that 

both the CRC and the City Council violated § 49-14,102 

by failing to award the contract through an open and public process. Appellants alleged that both the CRC and the 

City Council provided “bare legal notice” of their meetings. 

However, appellants specifically contended that neither body 

provided notice that the contract to be discussed concerned a 

business owned by public employees. Appellants’ complaint 

neither quoted nor attached the notices provided by the CRC 

or the City Council.

The court dismissed appellants’ complaint without prejudice 

for failure to state a claim upon which relief could be granted, 

but allowed them leave to file an amended complaint. The 

court specifically instructed appellants to make paragraph 28 

of their complaint more specific to allege how § 49-14,102(2) 

was violated.
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Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

In November 2015, appellants filed an amended complaint 

that made substantive changes only to paragraph 28 and again 

did not include the CRC or the City Council notices or their 

language. In response, North Platte and Priority Medical 

(hereinafter collectively appellees) both filed motions to dismiss, under Neb. Ct. R. Pldg. § 6-1112(b)(6), for failure to 

state a claim upon which relief could be granted. Appellees 

argued that appellants’ admission that North Platte provided 

“bare legal notice” of the City Council meeting in paragraph 

28 showed that North Platte complied with § 49-14,102’s 

notice requirement for an open and public process as a matter 

of law.

The court dismissed the case with prejudice, explaining that 

“Plaintiffs cannot amend their Complaint to state a cause of 

action against any of the Defendants.” Appellants perfected a 

timely appeal.

ASSIGNMENTS OF ERROR

Appellants assign, restated, that the court erred in (1) implicitly finding the process used and notice given by North Platte 

in awarding the contract to Priority Medical was through an 

“open and public process” under § 49-14,102, (2) granting the 

motion to dismiss with prejudice, and (3) not allowing appellants leave to amend their complaint.

STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss is reviewed 

de novo.1

ANALYSIS

[2] 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 

1 First Neb. Ed. Credit Union v. U.S. Bancorp, 293 Neb. 308, 877 N.W.2d 

578 (2016), citing SID No. 1 v. Adamy, 289 Neb. 913, 858 N.W.2d 168 

(2015).
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295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

which may be drawn therefrom, but not the plaintiff’s conclusions.2

 Accordingly, for the purpose of reviewing the court’s 

dismissal of the amended complaint, the facts that we have set 

out in this opinion appear as alleged by appellants.

[3] 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.3 In cases in 

which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, 

are nonetheless plausible if they suggest the existence of the 

element and raise a reasonable expectation that discovery will 

reveal evidence of the element or claim.4

[4,5] Nebraska is a notice pleading jurisdiction.5 Civil 

actions are controlled by a liberal pleading regime.6 A party 

is only required to set forth a short and plain statement of the 

claim showing that the pleader is entitled to relief.7 The party is 

not required to plead legal theories or cite appropriate statutes 

so long as the pleading gives fair notice of the claims asserted.8

The rationale for this liberal notice pleading standard 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.9

Appellants argue that the court erred in dismissing their 

amended complaint, because they are entitled to relief under 

both § 84-1411 and § 49-14,102.

2 Id.

3 Id.

4 Id.

5 deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).

6 State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016), citing Davio v. 

Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 N.W.2d 

655 (2010).

7 Id.

8 Id.

9 Id.
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Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

Appellants Set Forth Sufficient Facts

for Claim Under § 84-1411

Appellants contend that while they admitted “bare legal 

notice” was provided under § 84-1411, they still have a plausible cause of action that the description of Priority Medical’s 

loan on the meeting agenda was not “sufficiently descriptive.”10

Priority Medical points out that appellants did not refer 

to § 84-1411 in their complaint or at the hearings before the 

court; so, it argues that the court could not have erred in concluding that appellants failed to state a cause of action under 

the statute.

[6] Priority Medical is correct in stating that appellants 

failed to make any reference to § 84-1411 in their amended 

complaint or at the hearing on the motion to dismiss before 

the court. However, allegations do not need to be set forth 

as a separate claim in the complaint to sustain a cause of 

action.11 As stated above, fair notice that a claim exists, not 

the authorizing statute or legal theory, is all that is required to 

carry a valid claim at the pleading stage. Section 84-1411(1) 

requires a public body to provide notice of the time and place 

of its meeting and an agenda that is “sufficiently descriptive to give the public reasonable notice of the matters to be 

considered at the meeting.” Neb. Rev. Stat. § 84-1409(1)(a) 

(Reissue 2014) defines public bodies as “(i) governing bodies of all political subdivisions of the State of Nebraska [and] 

(v) advisory committees of the bodies referred to in subdivision[] (i).”

In their amended complaint, appellants made the following 

allegations regarding the CRC and the City Council:

4. Defendant North Platte (“North Platte”) is a city of 

the First Class in Lincoln County, Nebraska.

. . . .

10 § 84-1411(1).

11 See deNourie & Yost Homes, supra note 5, citing Ashby v. State, 279 Neb. 

509, 779 N.W.2d 343 (2010). Cf. Spear T Ranch v. Knaub, 269 Neb. 177, 

691 N.W.2d 116 (2005).
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295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

14. The application was first heard by a group called 

[the] Quality Growth Fund [CRC].

. . . .

20. There is no publically available information on 

the . . . North Platte municipal website regarding the 

existence of the [CRC] despite its role in recommending 

who will receive favorable funding from the North Platte 

taxpayers. . . .

. . . .

27. At Quality Growth Fund Administrator[’s] request, 

the . . . City Council placed the Priority Medical loan [on] 

the . . . City Council agenda for its meeting . . . .

As the governing body of North Platte, the City Council is 

a public body. While appellants did not allege that the CRC is 

a public body, appellees do not deny that status. Additionally, 

CRC’s role to provide recommendations to the City Council 

also supports a reasonable inference that it is an advisory committee of the City Council or, at a minimum, an expectation 

that discovery will provide such evidence. Therefore, for the 

purposes of the motion to dismiss, arguably both the CRC and 

the City Council are public bodies that would be required to 

provide notice under § 84-1411.

Appellants also alleged the following facts about the notice 

provided by the CRC and the City Council:

15. Other than bare legal notice of the meeting of the 

Quality Growth Fund [CRC], no notice or publicity was 

ever provided that public employees were seeking funds 

from the Quality Growth Fund.

. . . .

28. Other than bare legal notice of the actual . . . 

City Council meeting itself, no notice or publicity was 

ever made that would give notice to the public that a 

business with which an individual who is also a public 

employee was seeking funds from the Quality Growth 

Fund prior.

Both of these allegations suggest that appellants, while admitting that the other notice requirements of § 84-1411 were met, 
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295 Nebraska Reports

TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

claim that the agenda items were not sufficiently descriptive 

to provide notice that a contract containing a conflict of interest would be discussed at the meetings. Because the amended 

complaint focused on notice of public meetings, we believe 

appellees had fair notice that the Open Meetings Act notice 

requirements were also at issue.

While setting out the appropriate statute and the allegations 

regarding each element required therein would have been 

helpful to appellees and the court, appellants’ failure to do so 

does not defeat the presence of valid claims. While the actual 

character of the CRC and the actual notice provided by the 

CRC and the City Council will be essential to the resolution of 

the case, the factual allegations suggest a reasonable expectation that discovery will reveal them.

Therefore, because appellants have stated claims against the 

CRC and the City Council under § 84-1411 which are plausible 

on their face, the court erred in dismissing appellants’ complaint with prejudice for failure to state a claim.

Appellants Set Forth Sufficient Facts

for Claim Under § 49-14,102

Appellants also claim that North Platte did not award the 

contract through an open and public process pursuant to 

§ 49-14,102.

Both appellants and appellees request that we interpret the 

term “notice” in § 49-14,102(2)’s definition of an open and 

public process. Appellants contend it should be interpreted 

to require, at a minimum, that the public be informed of the 

presence of a conflict of interest before a contract is awarded. 

Appellees argue that the plain language requires only notice 

of the meeting and that therefore, appellants’ admission of 

“bare legal notice” on the face of their complaint provides an 

affirmative defense precluding recovery.

[7,8] We recognize that this court has not previously interpreted the term “notice” in § 49-14,102(2). Even novel issues 

may be determined on a motion to dismiss where the dispute 

is not as to the underlying facts but as to the interpretation of 
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TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

the law.12 However, as a general rule, important questions of 

novel impression should not be decided on a motion to dismiss 

when the underlying facts are unclear and development of the 

record will aid in resolving the legal issues.13 The Legislature 

has not presented a mandatory definition of notice or the language required to satisfy it. Accordingly, analysis of the sufficiency of the notice will necessarily require an evaluation of 

the actual notice provided. The absence of the actual notices 

or the language thereof requires that we allow further development of the record before construing the meaning of the statute.

Instead, without interpreting § 49-14,102(2), we consider 

whether appellants’ allegations may support a claim capable 

of prevailing against a motion to dismiss. Section 49-14,102 

includes the following language:

(1) Except as otherwise provided by law, no . . . public 

employee . . . or business with which the individual is 

associated shall enter into a contract valued at two thousand dollars or more, in any one year, with a government 

body unless the contract is awarded through an open and 

public process.

(2) For purposes of this section, an open and public 

process includes prior public notice and subsequent availability for public inspection . . . of the proposals considered and the contract awarded.

. . . .

(6) This section prohibits . . . public employees from 

engaging in certain activities under circumstances creating a substantial conflict of interest. This section is not 

intended to penalize innocent persons, and a contract shall 

not be absolutely void by reason of this section.

In their amended complaint, appellants alleged the following: North Platte is a city of the first class in Nebraska; 

12 See Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 

236 (2013), citing Madison v. American Home Products Corp., 358 S.C. 

449, 595 S.E.2d 493 (2004).

13 See Madison, supra note 12. See, also, Estate of Teague, supra note 12.
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TRYON v. CITY OF NORTH PLATTE

Cite as 295 Neb. 706

Kleinow and Smith are public employees; Priority Medical 

Transport is a business with which Kleinow and Smith are 

associated; the City Council awarded a contract to Priority 

Medical; the contract awarded to Priority Medical was for 

$350,000; and the contract was not awarded through an open 

and public process, because the notice provided was insufficient. Accepting each of these allegations as true, appellants 

have sufficiently alleged that the contract at issue falls under 

§ 49-14,102 and that the City Council failed to comply with 

the notice requirement of the statute.

Additionally, Neb. Rev. Stat. § 49-1424 (Reissue 2010) 

defines a government body as a “council . . . of one or more 

political subdivisions.”

At this stage, appellants’ admission that “bare legal notice” 

of the meeting was provided does not preclude them from 

recovery, because the statute does not explicitly say an open 

and public process requires only notice of the meeting.

Therefore, because appellants have stated a claim against 

the City Council under § 49-14,102, the court erred in dismissing appellants’ complaint with prejudice for failure to state 

a claim.

Because our resolution of this assignment of error necessitates that we reverse the court’s order and remand the cause for 

further proceedings, we do not reach appellants’ third assignment of error that the court should have granted them leave to 

file a second amended complaint.

CONCLUSION

Appellants’ amended complaint contains valid claims under 

both § 84-1411 and § 49-14,102. Accordingly, the court erred 

in dismissing appellants’ amended complaint for failure to state 

a claim. Therefore, the court’s order dismissing appellants’ 

amended complaint is reversed, and the cause is remanded for 

further proceedings.

 Reversed and remanded for

further proceedings.

Cassel, J., not participating.