JOHN K. NOONEY and KIMBERLY NOONEY, Plaintiffs and Appellants,
STUBHUB, INC., a Delaware Corporation, Defendant and Appellee
Considered on Briefs November 30, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE WALLY EKLUND, Judge.
ROBERT J. GALBRAITH of Nooney & Solay, LLP, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
JEFFERY D. COLLINS, DANA VAN BEEK PALMER of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, South Dakota, Attorneys for defendant and appellee.
ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.
[¶1] John and Kimberly Nooney sued StubHub Inc. after tickets they purchased from StubHub for a concert were not honored at the event. In granting StubHub's motion to dismiss for failure to state a claim, the circuit court considered a document that was not attached to the complaint. On appeal, Nooneys argue that the court erred in considering the document without converting the motion to dismiss to a motion for summary judgment. Nooneys also argue that the court erred in dismissing the complaint on the merits. We affirm the court's consideration of the document because it was referenced in the complaint, but we reverse the court's dismissal on the merits.
Facts and Procedural History
[¶2] In June 2014, Nooneys purchased tickets from StubHub for a concert in Colorado. The day of the concert, they traveled to the concert venue and presented their tickets. The tickets were invalid, and Nooneys were denied access to the concert. On October 21, 2014, they commenced this action for breach of contract and fraudulent inducement.
[¶3] Nooneys' complaint alleged StubHub made representations that the tickets would allow access to the concert. In the event that the tickets were invalid, Nooneys pleaded that the StubHub " Fan Protect Guarantee" represented that StubHub would provide comparable replacement tickets. Nooneys pleaded that after being denied access to the event, StubHub informed them that StubHub would not honor the Fan Protect Guarantee.
[¶4] StubHub moved to dismiss under SDCL 15-6-12(b)(5), arguing that Nooneys' complaint failed to state a claim upon which relief could be granted. In support of the motion, StubHub submitted an affidavit of a StubHub employee. The affidavit included four exhibits: (1) screen shots of a StubHub registration page and a user agreement link, (2) a copy of a 2010 user
agreement that was in effect when John Nooney initially registered with StubHub, (3) a copy of a 2014 user agreement that was in effect when John Nooney purchased the tickets for the concert, and (4) ...