Schreiber Bros. Hog Co. v. Schreiber , 312 Neb. 707 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2022 01:03 AM CST
- 707 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707Schreiber Brothers Hog Company, LLC,
a Nebraska limited liability company,
and Steven Schreiber, an individual
member, appellees, v. Jerald
Schreiber, an individual
member, appellant.
___ N.W.2d___
Filed October 28, 2022. No. S-21-570.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Jurisdiction: Appeal and Error. Appellate courts have an independent
obligation to ensure they have appellate jurisdiction.
4. Actions. A special proceeding includes every special statutory remedy
that is not itself an action.
5. Actions: Words and Phrases. An action is any proceeding in a court by
which a party prosecutes another for enforcement, protection, or deter-
mination of a right or the redress or prevention of a wrong involving and
requiring the pleadings, process, and procedure provided by statute and
ending in a judgment.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
8. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
- 708 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 7079. Final Orders: Appeal and Error. A substantial right is not affected
when that right can be effectively vindicated in an appeal from the final
judgment.
10. Restitution: Unjust Enrichment. To recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of restitution
would recognize as unjust enrichment.
11. Contracts: Unjust Enrichment. One who is free from fault cannot be
held to be unjustly enriched merely because one has chosen to exercise
a contractual or legal right.
12. ____: ____. The doctrine of unjust enrichment is recognized only in the
absence of an agreement between the parties.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Appeal dismissed in part, and in part reversed
and remanded with directions.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellant.
Jonathan M. Brown, of Walentine O’Toole, L.L.P., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After Steven Schreiber filed a complaint asking for the dis-
solution of the limited liability company he owned in equal
shares with his brother, Jerald Schreiber, the district court
ordered dissolution and directed a receiver to liquidate the
company’s assets. Those assets included two buildings owned
by the company but located on land owned by Jerald. Jerald
made the only offer to purchase the buildings, but Steven
contended that if the buildings were sold to Jerald at the
price offered, Jerald would be unjustly enriched. The parties
later agreed that the district court should order the receiver to
accept Jerald’s offer, but that Steven and the company should
be allowed to continue to pursue a claim of unjust enrich-
ment. Following a trial, the district court found that Jerald
- 709 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707was unjustly enriched and ordered him to pay an additional
$400,184 to the company. The district court also denied a
motion filed by Jerald asking the district court to provide fur-
ther directions to the receiver.
In Jerald’s appeal of these rulings, we find that we lack
jurisdiction to review the order denying the motion for further
directions but that the district court erred in its unjust enrich-
ment finding. We therefore dismiss in part, and in part reverse
and remand with directions.
I. BACKGROUND
1. Dissolution Action Filed;
Receiver Appointed
Jerald and Steven formed the Schreiber Brothers Hog
Company, LLC, in 2011. They each owned a 50-percent inter-
est in the company and managed it together for a number
of years.
This case began when Steven commenced an action in the
district court on behalf of the company and himself seeking the
judicial dissolution of the company pursuant to Neb. Rev. Stat.
§ 21-147(a)(5) (Cum. Supp. 2021). Jerald eventually agreed
that the company should be dissolved and that a receiver
should be appointed to wind up the company’s affairs. The
district court subsequently ordered dissolution and appointed a
receiver to wind up the company’s activities.
2. Complaint Amended to Raise Claims
Regarding Hog Buildings
After the receiver had begun his work and liquidated most of
the company’s assets, Steven and the company obtained leave
to file an amended complaint. The amended complaint added
several additional claims for relief, all of which pertained to
two buildings used in the company’s hog production busi-
ness which the receiver had not yet sold. The two buildings
are referred to by the parties as a “finishing building” and a
“nursery.” All agree that these buildings were owned by the
company, but located on land owned only by Jerald.
- 710 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707In the amended complaint, Steven and the company requested
that the district court quiet title to the real property upon which
the buildings were located in the company’s name on the basis
of adverse possession. Alternatively, they requested that the
district court grant the company a prescriptive easement or
easement by necessity to allow it and any successors in interest
or grantees to enter the real property upon which the buildings
were located as the company had during its operation. As a
final alternative, Steven and the company alleged that if they
did not obtain any of the previously described relief, the com-
pany was entitled to a judgment for unjust enrichment against
Jerald in the amount of the fair market value of the property.
The amended complaint alleged that an appraisal obtained by
the receiver estimated the market value of the buildings to be
$450,000.
After conducting some discovery, Steven and the company
voluntarily dismissed their claims for adverse possession, pre-
scriptive easement, and easement by necessity.
3. Hearing on Disposition of
Hog Buildings
Before adjudicating the remaining claim of unjust enrich-
ment, the district court held a hearing regarding what action the
receiver should take as to the buildings. Prior to the hearing,
counsel for Steven and the company argued that the district
court should either enter an order declaring the buildings the
“de facto assets of Jerald” and ordering him to pay for their
reasonable value or order that the buildings be dismantled.
Counsel for Jerald argued that the buildings should be sold to
the highest bidder.
The district court received evidence at the hearing, including
testimony from Steven, Jerald, and the receiver. The evidence
established that when the buildings were constructed in 1994
and 1997, the company was not yet formed, and that Jerald and
Steven were working together as part of a general partnership.
Jerald testified that at the time the buildings were built on his
- 711 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707property, Steven knew that the buildings were being built on
land that Jerald owned.
After the formation of the company, the buildings came to
be owned by the company, but Jerald continued to own the real
property where they were located. The receiver testified that he
attempted to sell the buildings along with the rest of the com-
pany’s assets, but that many parties who made initial inquiries
about purchasing the buildings lost interest upon learning that
the land upon which the buildings were located was not for
sale and that there was no legal right of ingress and egress to
access the buildings. The receiver testified that Jerald made
the only offer to purchase the buildings and that he offered to
purchase them for their assessed value, which was $18,000.
Jerald confirmed that he was willing to purchase the buildings
for $18,000. He also acknowledged that he was not willing to
grant an easement to allow a buyer of the buildings to access
them. He testified that he would not want to have “someone
else going in and out of there any time of the day or night on
their own accord.”
An appraiser hired by the receiver also testified. The
appraiser testified that in his opinion, the buildings were
worth $450,000. He testified that he formed this opinion
by calculating the difference between the value of the land
together with the buildings and the value of the land without
the buildings. The district court also received evidence about
whether or not the buildings were operational. On this point,
there was some disagreement by the witnesses. The receiver
described the buildings as operational, but Jerald and his son
testified the buildings were in a state of significant disrepair
from nonuse, termination of utilities, frost and thaw cycles,
and condensation damage.
At the conclusion of the hearing, the parties agreed that they
would submit written briefs to the district court and that the
district court would take the matter under advisement. The dis-
trict court also scheduled a trial on the remaining unjust enrich-
ment claim asserted by Steven and the company.
- 712 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 7074. Trial on Unjust Enrichment Claim
On the day the unjust enrichment claim was scheduled to
be tried, the district court stated on the record that the parties
had reached an agreement that the receiver should be directed
to accept Jerald’s offer to purchase the buildings for $18,000,
“with the understanding that nothing with respect to that stipu-
lation of the parties would be construed as a final determina-
tion on the [unjust enrichment claim,] which [Steven and the
company] then would pursue.” The district court later entered
a written order to the same effect.
With respect to the district court’s consideration of the
unjust enrichment claim, the parties agreed that the district
court could consider all evidence and testimony offered at the
prior hearing regarding the disposition of the buildings. Jerald
and Steven also provided additional limited testimony.
After taking the matter under advisement, the district court
entered a written order finding that judgment should be entered
in favor of the company and against Jerald on the unjust
enrichment claim. The district court relied heavily upon an
opinion of the Arkansas Court of Appeals, Trickett v. Spann,
2020 Ark. App. 552, 613 S.W.3d 773 (2020). We discuss this
case in more detail in the analysis section below.
The district court also found that because the buildings
could not be sold with a right to ingress and egress, they had
value only to Jerald. It reasoned that if Jerald were allowed to
obtain the property for only the price for which he offered to
purchase them, the company would not receive “reasonable
compensation” and Jerald would receive a “personal windfall
to which he is not entitled.”
On the issue of damages, the district court noted some
of Jerald’s evidence showing that the buildings would need
repairs before they could be used, but concluded that the
appraiser’s opinion was the only credible evidence of valua-
tion. The district court found that the reasonable value of the
buildings was just over $418,000 and ordered Jerald to pay the
difference between that amount and the $18,000 he previously
- 713 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707tendered to purchase the buildings. Because the buildings were
owned by the company, the district court dismissed Steven’s
claim for unjust enrichment.
5. Motion for Further Directions
After the receiver was appointed, Jerald filed a motion pur-
suant to Neb. Rev. Stat. § 25-1087 (Reissue 2016) requesting
that the district court enter an order providing further direc-
tions to the receiver. Among other things, Jerald requested that
the district court order the receiver to pay certain bills Jerald
claims were incurred by the company, both before and after the
appointment of the receiver. The motion alleged that Jerald had
requested that the receiver pay the bills and that the receiver
had refused.
The district court held a hearing on the motion for further
directions on the same day it held trial on the unjust enrich-
ment claim. At the hearing, Jerald testified regarding several
bills he contended were incurred by the company, but the
receiver had refused to pay. The receiver also testified. When
asked by Jerald’s counsel about several of the bills for which
Jerald sought court direction to pay, the receiver testified that
he had not yet paid the bills, but he would consider paying
them. With respect to other bills, he testified that he did not
believe they were legitimate expenses of the company. In
response to a question about whether a bill should be paid,
the receiver stated that he had a “budget problem,” which
we understand to refer to the fact that the amount of the bills
Jerald was asking the district court to direct the receiver to pay
exceeded the funds held by the receiver.
In the same document in which the district court explained
its unjust enrichment finding, it denied the relief requested in
the motion for further directions without further explanation.
6. Appeal
Jerald filed an appeal within 30 days of the district court’s
order finding unjust enrichment and denying the motion for
further directions. We moved the case to our docket.
- 714 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707II. ASSIGNMENTS OF ERROR
Jerald assigns several errors on appeal, but they can be con-
solidated and restated as three: He contends that the district
court erred (1) in its finding that the company was entitled to
recover on its unjust enrichment claim, (2) in its calculation
of the amount that Steven was unjustly enriched, and (3) in its
denial of Jerald’s motion for further directions regarding the
payment of bills.
III. STANDARD OF REVIEW
The parties disagree on the standard of review we should
apply to Jerald’s arguments concerning the unjust enrichment
judgment. Steven and the company contend that our opinion in
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848,
809 N.W.2d 725 (2011), holds that claims of unjust enrich-
ment are actions at law and that thus, we should apply the
standard of review we would normally apply in reviewing a
bench trial of a law action, i.e., the court’s factual findings are
not disturbed unless clearly wrong, but questions of law are
reviewed independently. Jerald, on the other hand, contends
that because the unjust enrichment claims were raised in the
context of an action to dissolve the company and actions to
dissolve a limited liability company are actions in equity, we
should apply the standard of review applicable to appeals from
bench trials of equity actions, i.e., de novo on the record, with
this court independently resolving both questions of law and
questions of fact. See Schmid v. Simmons, 311 Neb. 48, 970
N.W.2d 735 (2022). We find that we need not resolve this dis-
pute as to the standard of review. Jerald’s unjust enrichment
arguments primarily turn on issues of law, and even under the
more deferential standard of review urged by Steven and the
company, we find that the district court’s unjust enrichment
finding is erroneous.
[1,2] A jurisdictional question that does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714- 715 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707(2021). When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusions. Id.IV. ANALYSIS
1. Appellate Jurisdiction
[3] While the issue of appellate jurisdiction was not initially
raised by the parties, we have an independent obligation to
ensure we have appellate jurisdiction. State v. Reames, 308
Neb. 361, 953 N.W.2d 807 (2021). With that duty in mind,
we ordered the parties to submit supplemental briefing on
the issue. We now consider that issue, first as to the denial of
the motion for further directions and then as to the finding of
unjust enrichment.
(a) Motion for Further Directions
We begin our analysis of our jurisdiction to review the
district court’s denial of Jerald’s motion for further directions
with Neb. Rev. Stat. § 25-1090 (Reissue 2016). That statute
provides that “[a]ll orders appointing receivers” and “giving
them further directions” may be appealed. Id. Jerald takes the
position that because the district court did not give further
directions but denied his request to do so, this statute does not
authorize our review. We agree. Jerald argues, however, that
we have jurisdiction to review the district court’s order because
it qualifies as a final order under Neb. Rev. Stat. § 25-1902(Cum. Supp. 2020). We consider that issue next.
Section 25-1902 currently recognizes four categories of final
orders. In our view, however, the order denying the motion for
further directions could fit into only one such category: those
orders “affecting a substantial right made during a special pro-
ceeding.” § 25-1902(1)(b).
[4,5] A special proceeding occurs where the law confers a
right and authorizes a special application to a court to enforce
it. See In re Grand Jury of Douglas Cty., 302 Neb. 128,
922 N.W.2d 226 (2019). A special proceeding includes every
- 716 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707special statutory remedy that is not itself an action. See Kremer
v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538(2010). An action is any proceeding in a court by which a party
prosecutes another for enforcement, protection, or determina-
tion of a right or the redress or prevention of a wrong involving
and requiring the pleadings, process, and procedure provided
by statute and ending in a judgment. In re Grand Jury of
Douglas Cty., supra. Every other legal proceeding by which a
remedy is sought by original application to a court is a special
proceeding. Id.Applying these rules, we find that once the district court
granted dissolution and appointed a receiver, a special pro-
ceeding commenced. Neb. Rev. Stat. § 21-148(e) (Reissue
2012) authorizes the district court, on application of a mem-
ber of a limited liability company (LLC), to “order judicial
supervision of the winding up of a dissolved [LLC], including
the appointment of a person to wind up the company’s activi-
ties.” Judicial supervision of the winding up an LLC is thus a
remedy that may be sought by application to a court, but it is
not an action. Treating judicial supervision of a receivership
as a special proceeding is also consistent with our precedent.
In Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013),
we held that we could review a district court’s determination
that a receiver could deny a claim for payment of services
as an action that affected a substantial right during a special
proceeding.
[6-9] The fact that the order denying the motion for further
directions was issued in a special proceeding does not, by
itself, make the order appealable. The order must have also
affected a substantial right. See § 25-1902(1)(b). A substantial
right is an essential legal right, not a mere technical right. In
re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021). A
substantial right is affected if an order affects the subject mat-
ter of the litigation, such as by diminishing a claim or defense
that was available to an appellant before the order from which
an appeal is taken. Id. It is not enough that the right itself
- 717 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707be substantial; the effect of the order on that right must also
be substantial. Id. A substantial right is not affected when that
right can be effectively vindicated in an appeal from the final
judgment. In re Estate of Larson, 308 Neb. 240, 953 N.W.2d
535 (2021).
We have approvingly cited a commentator who has sug-
gested that in the context of multifaceted special proceedings
that are designed to administer the affairs of a person, an order
that ends a discrete phase of the proceedings affects a substan-
tial right because it finally resolves the issues raised in that
phase. See id., citing John P. Lenich, What’s So Special About
Special Proceedings? Making Sense of Nebraska’s Final Order
Statute, 80 Neb. L. Rev. 239 (2001). We have employed that
“discrete phase” rubric in a number of probate proceedings.
See, In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94(2022); In re Estate of Beltran, supra; In re Estate of Larson,
supra; In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868(2012). We have also held that in probate cases, while an order
ending a discrete phase of the proceeding is appealable, one
that is merely preliminary to such an order is not. See In re
Estate of Larson, supra.
Although the judicial supervision of the winding up of an
LLC is not designed to administer the affairs of a person, it
can be a multifaceted proceeding that is designed to administer
the affairs of an LLC. Indeed, it bears substantial similarity to
a probate proceeding: Probate is the legal process by which
a deceased person’s debts are paid and assets distributed; the
judicial supervision of the winding up of an LLC is the legal
process by which a dissolved LLC’s debts are paid and assets
distributed. See § 21-148(b). We also note that the Nebraska
Court of Appeals has previously analyzed whether an order
entered in a receivership proceeding affected a substantial right
by applying the discrete phase analysis. See Sutton v. Killham,
22 Neb. App. 257, 854 N.W.2d 320 (2014). We find it appro-
priate to apply the discrete phase rubric to orders entered in the
judicial supervision of the winding up of an LLC.
- 718 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707Applying that discrete phase rubric, we conclude that the
order denying the motion for special directions did not end
a discrete phase of the proceedings and thus did not affect a
substantial right. In the motion for further directions, Jerald
sought an order specifically directing the receiver to pay cer-
tain expenses. At the hearing on that motion, the receiver’s
testimony demonstrated that he had not made a final determi-
nation of the expenses that he would pay. Indeed, he testified
that he would consider paying some of the expenses that were
the subject of Jerald’s motion but that a “budget problem”
complicated that task.
Given the evidence adduced and the district court’s order,
contrary to the parties, we do not understand the district court’s
denial of the motion for further directions to be a final deter-
mination that the receiver need not pay the expenses at issue.
Rather, we understand the district court merely to have deter-
mined that additional, specific direction was not necessary at
that time. Because the district court’s order denying Jerald’s
motion for further directions did not affect a substantial right
of Jerald’s, we find that we lack jurisdiction under § 25-1902.
And because we can discern no other basis of appellate juris-
diction, we dismiss that portion of Jerald’s appeal.
(b) Unjust Enrichment
We now consider whether we have appellate jurisdiction to
review the district court’s resolution of the unjust enrichment
claims. We begin our analysis of that question by consider-
ing whether this case implicates Neb. Rev. Stat. § 25-1315(Reissue 2016). Specifically, we consider whether the fact
that the judicial supervision of the winding up of the company
apparently remained ongoing at the time the appeal was filed
precludes appellate review of the district court’s resolution of
the unjust enrichment claim under § 25-1315.
Section 25-1315(1) provides, in relevant part:
When more than one claim for relief is presented in an
action, . . . or when multiple parties are involved, the
- 719 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for
delay and upon an express direction for the entry of judg-
ment. In the absence of such determination and direction,
any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not ter-
minate the action as to any of the claims or parties . . . .
As we have recently explained, § 25-1315(1) is implicated
only when a case presents more than one claim for relief or
involves multiple parties, and the court enters an order which
adjudicates fewer than all the claims or the rights and liabili-
ties of fewer than all the parties. See Mann v. Mann, ante p.
275, 978 N.W.2d 606 (2022). For purposes of determining
whether a case presents more than one “claim for relief” under
§ 25-1315(1), we have said the term is not synonymous with
“issue” or “theory of recovery,” but is instead the equivalent of
a cause of action. Mann v. Mann, supra.
We find in this circumstance that § 25-1315(1) is not impli-
cated. Although the parties have asserted more than one claim
for relief during the course of this case, the order adjudicat-
ing the unjust enrichment claim did not adjudicate fewer than
all the remaining claims in the case or leave claims asserted
against certain parties for future resolution. Steven initially
asserted a claim for judicial dissolution on behalf of the com-
pany, but that claim was resolved when the court ordered
dissolution. Steven and the company also asserted claims for
adverse possession, prescriptive easement, and easement by
necessity, but those claims were involuntarily dismissed. At the
time the district court decided the unjust enrichment claim, it
was the only claim remaining in the case.
Because we find that § 25-1315(1) is not implicated, we
have appellate jurisdiction to review the district court’s order
resolving the unjust enrichment claim if it satisfies § 25-1902.
Cf. Mann v. Mann, supra. We find that the order is appealable
- 720 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707under § 25-1902, because it affects a substantial right in a spe-
cial proceeding.
We have already explained our conclusion that the judicial
supervision of the winding up of the company is a special
proceeding. We also find that the order resolving the unjust
enrichment claim was entered in that special proceeding. The
claim of unjust enrichment arose once the judicial supervi-
sion of the winding up process began and Jerald was the only
interested buyer for the buildings. The parties later agreed
that the receiver should be directed to sell the buildings to
Jerald at the price he offered to pay. The unjust enrichment
claim was then litigated under the theory that the sale to
Jerald at that price would result in his unjust enrichment.
The district court’s eventual order found unjust enrichment
and effectively ordered Jerald to pay additional amounts for
the buildings. The unjust enrichment claim was inextricably
bound up within the judicial supervision of the winding up
of the company. Under these circumstances, we find that the
order resolving the unjust enrichment claim was entered in a
special proceeding.
We recognize that a claim for unjust enrichment will, in the
vast majority of cases, be litigated in an action. After all, it is
usually a claim that one party prosecutes against another for
the enforcement, protection, or determination of a right or for
the redress or prevention of a wrong; is usually decided by way
of pleadings, process, and procedure provided by statute; and
usually ends in a judgment. See, e.g., Bloedorn Lumber Co. v.
Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018). Under these
assuredly rare circumstances, however, we find that the unjust
enrichment claim was entered in a special proceeding.
Having determined that the order resolving the unjust enrich-
ment claim was entered in a special proceeding, we return to
the discrete phase rubric discussed above. Here, we find that
the order resolving the unjust enrichment claim ended a dis-
crete phase of the proceeding. It ended the phase of the pro-
ceeding dedicated to resolving the claims of Steven and the
- 721 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707company that Jerald was unjustly enriched by his purchase
of the buildings and should be required to pay more to the
company. The district court held a trial on this issue and then
entered an order determining that Jerald was unjustly enriched
and ordering him to pay an additional $400,184 for the pur-
chase of the buildings. In this respect, the order is much like
the order we found appealable in Sutton v. Killham, 285 Neb.
1, 825 N.W.2d 188 (2013). In that case, we reviewed an order
of summary judgment finding that a receiver correctly denied
a claim for payment of services. We see no meaningful dif-
ference between the conclusive determination that a party in
receivership had no liability for a debt in Sutton v. Killham
and the district court’s conclusive determination that a party in
receivership was owed a debt here.
We also find similarity between this case and In re Estate of
McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012). We described
that case as one in which a party sought partition of certain
real property within a probate proceeding. See id. at 372, 820
N.W.2d at 874 (“we are presented with the partition of real
property in an estate proceeding”). The testator left four tracts
of land to his three daughters, one of whom sought partition
of the property. The county court found that partition of the
property should be made and appointed a referee. The referee
concluded that the real property should be partitioned by sale;
however, one of the daughters opposed the partition by sale.
Ultimately, the court ordered partition by sale, and the daughter
appealed. Before we reached the merits of the case, we con-
sidered whether or not we had appellate jurisdiction. We con-
cluded that the circumstances qualified as an order that affected
a substantial right. We reasoned:
The county court’s order directing the referee to sell the
property would affect the right of the devisees to receive
the real estate in kind and would force them to sell their
interests in the land. The distribution of the real estate is
a discrete phase of the probate proceedings and would
finally resolve the issues in that phase of the probate of
- 722 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707the estate. It could be months before an appeal from the
order of confirmation would be finally resolved. In the
interim, distribution of the assets of the estate would have
to wait until that phase of the probate was finally resolved
regarding distribution of the real estate. The sale of the
real estate would diminish the right of the devisees to
have the real estate distributed in kind.
Id. at 374, 820 N.W.2d at 876.
Similar reasoning applies in these circumstances. As in In
re Estate of McKillip, the district court here fully resolved an
issue presented within a multifaceted proceeding. And, like
the situation in In re Estate of McKillip, delaying review of
that finally resolved issue will complicate the resolution of the
entire proceeding. Here, the question of whether the company’s
unjust enrichment recovery will stand obviously affects the
resources the receiver will have available in completing the
winding up of the company’s affairs.
For these reasons, we find that the order of the district court
awarding the company an unjust enrichment recovery from
Jerald affected a substantial right during a special proceeding.
We turn to the merits of that issue now.
2. Unjust Enrichment Merits
The district court concluded that Jerald was unjustly enriched
at the company’s expense when he purchased the buildings
for $18,000. Unjust enrichment claims do not arise from an
express or implied agreement between the parties; rather, they
are imposed by law “when justice and equity require the
defendant to disgorge a benefit that he or she has unjustifi-
ably obtained at the plaintiff’s expense.” Bloedorn Lumber Co.
v. Nielson, 300 Neb. 722, 729, 915 N.W.2d 786, 792 (2018)
(internal quotation marks omitted).
Jerald attacks the district court’s unjust enrichment judg-
ment on a number of fronts. One such argument is that the
district court erred by basing its unjust enrichment finding on
the fact that the transfer of the buildings to Jerald for the price
- 723 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707he offered would result in his receiving a windfall and the
company’s not receiving reasonable compensation. According
to Jerald, “financial disparity” in a transaction alone cannot
establish unjust enrichment liability. Brief for appellant at 3.
Jerald is undoubtedly correct that an unjust enrichment
recovery is not available solely because a court finds that one
party to an exchange obtained a better deal, or even a much
better deal, than another. Our cases and other authorities
confirm that unjust enrichment, while a flexible remedy, is a
narrower concept. This idea is helpfully summarized in the
comments to the Restatement (Third) of Restitution and Unjust
Enrichment:
[T]he law of restitution is very far from imposing liabil-
ity for every instance of what might plausibly be called
unjust enrichment. The law’s potential for intervention
in transactions that might be challenged as inequitable is
narrower, more predictable, and more objectively deter-
mined than the unconstrained implications of the words
“unjust enrichment.” . . .
The concern of restitution is not, in fact, with unjust
enrichment in any such broad sense, but with a narrower
set of circumstances giving rise to what might more
appropriately be called unjustified enrichment. Compared
to the open-ended implications of the term “unjust enrich-
ment,” instances of unjustified enrichment are both pre-
dictable and objectively determined, because the justifica-
tion in question is not moral but legal.
1 Restatement (Third) of Restitution and Unjust Enrichment
§ 1, comment b. at 5 (2011) (emphasis in original).
Consistent with these thoughts, we have emphasized that
“‘[t]he fact that a recipient has obtained a benefit without
paying for it does not of itself establish that the recipient
has been unjustly enriched,’” Kalkowski v. Nebraska Nat.
Trails Museum Found., 290 Neb. 798, 806, 862 N.W.2d 294,
301-02 (2015), quoting 1 Restatement (Third) of Restitution
and Unjust Enrichment, supra, § 2(1), and that the doctrine
- 724 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707does not exist to rescue a party from the consequences of a
bad bargain, Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813(1996). Or, as the Texas Supreme Court has articulated the
same basic idea, “[u]njust enrichment is not a proper remedy
merely because it might appear expedient or generally fair
that some recompense be afforded for an unfortunate loss to
the claimant, or because the benefits to the person sought to
be charged amount to a windfall.” Heldenfels Bros. v. City of
Corpus Christi, 832 S.W.2d 39, 42 (Tex. 1992) (internal quota-
tion marks omitted).
[10,11] Rather than a tool that a court can use to correct any
transaction it might find unfair or unequal, the unjust enrich-
ment remedy can be taken off the shelf in more limited situ-
ations. As we have held, to recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of resti-
tution would recognize as unjust enrichment. City of Scottsbluff
v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725(2011). We have explained that this rule does not mean that
prior cases must have recognized a specific fact pattern as
unjust enrichment in order for an unjust enrichment recovery
to be available. It does mean, however, that an unjust enrich-
ment plaintiff must demonstrate that under the circumstances,
principles of the law of restitution would authorize a recovery.
We have said that it is a “bedrock principle of restitution”
that unjust enrichment occurs when there is a “transfer of a
benefit without adequate legal ground” or a “transaction that
the law treats as ineffective to work a conclusive alteration
in ownership rights.” Id. at 866, 809 N.W.2d at 743, quoting
Restatement (Third) of Restitution and Unjust Enrichment, § 1,
comment b. (internal quotation marks omitted). We have also
said one who is free from fault cannot be held to be unjustly
enriched merely because one has chosen to exercise a contrac-
tual or legal right. Kissinger v. Genetic Eval. Ctr., 260 Neb.
431, 618 N.W.2d 429 (2000).
Given the foregoing, we find that the company was not
entitled to an unjust enrichment recovery solely because the
- 725 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707district court found that the transfer of the buildings to Jerald
at the price he offered was economically lopsided. Even assum-
ing the result of the transfer was a much better deal for Jerald
than the company, this alone does not demonstrate that the
transfer occurred without an adequate legal ground or that it
was ineffective to work a conclusive alteration in ownership
rights of the buildings. And while the district court appears to
have concluded that Jerald was able to benefit from the circum-
stances solely because he was not willing to grant an easement
on his property for ingress to and egress from the buildings,
we see no basis to find that Jerald was obligated to grant such
an easement.
Aside from the bare economics of the transaction, Steven
and the company argued and the district court found that an
unjust enrichment recovery was warranted based on the rea-
soning of the Arkansas Court of Appeals in Trickett v. Spann,
2020 Ark. App. 552, 613 S.W.3d 773 (2020). Again, we dis-
agree. In that case, plaintiffs, a husband and wife, paid for
the construction of a house on real property owned by their
daughter and her husband. Plaintiffs lived in the home for a
time, but moved away after their daughter died. After plain-
tiffs had moved away and their daughter’s husband refused to
pay them for the home, they filed a lawsuit claiming unjust
enrichment and prevailed in the trial court. The appellate court
upheld the unjust enrichment recovery, but did so based on
the theory that an unjust enrichment recovery was appropri-
ate when a plaintiff provides improvements to a defendant’s
property, the circumstances were such that the plaintiff rea-
sonably expected the defendant to pay for the value of the
improvements, and the defendant was aware the plaintiff was
providing the improvements with the expectation of being
paid. The appellate court pointed to specific evidence in the
record demonstrating that plaintiffs expected their daughter
and her husband to pay for the home and that the daughter’s
husband accepted the home knowing that his in-laws expected
to be paid.
- 726 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707While there is some surface similarity between this case and
Trickett v. Spann, the unjust enrichment rationale applied there
does not fit here. Unlike the plaintiffs in Trickett v. Spann,
Steven and the company can point to no evidence in the record
that the company constructed the buildings on Jerald’s land
with the expectation that Jerald would pay for them or that
Jerald allowed the buildings to be built there knowing that
the company expected to be paid. The company did not even
exist when the buildings were constructed. At that time, Jerald
and Steven were operating as a general partnership. And even
if that fact can be set to the side, there is also nothing in the
record that suggests that when the buildings were constructed,
Steven expected Jerald to pay him for the buildings, or that
Jerald allowed the construction of the buildings knowing that
such payment was expected.
Not only do we find the district court’s rationales for its
unjust enrichment judgment unpersuasive, we find that its
judgment is inconsistent with other principles of the law of
unjust enrichment. First, an unjust enrichment recovery is
generally unavailable when a party conferring a benefit has
the opportunity to form a contract with the party receiv-
ing the benefit, but neglects the opportunity to do so. See 1
Restatement (Third) of Restitution and Unjust Enrichment,
§ 2, comment d. (2011). The rationale for this principle is that
when voluntary transactions are feasible, it is preferable “to
require the parties to make their own terms [rather] than for
a court to try to fix them.” Indiana Lumbermens Mut Ins v.
Reinsurance Results, 513 F.3d 652, 657 (7th Cir. 2008). See,
also, 1 Dan B. Dobbs, Dobbs Law of Remedies § 4.9(4) at
690 (2d ed. 1993) (providing that “[i]f the parties could have
contracted but did not, the plaintiff generally is denied recov-
ery of the non-cash benefit”). Here, the company appears to
be claiming that it is entitled to an unjust enrichment recovery
because Jerald and Steven, through their partnership, conferred
a benefit on Jerald by constructing the buildings on his land
many years ago. But, at that time, Steven knew the buildings
- 727 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707were being constructed on Jerald’s land. As Steven’s counsel
conceded at oral argument, there was no evidence that Steven
was deceived as to the buildings being built on Jerald’s land;
rather, he “went into this eyes wide open.” Despite knowing
where the buildings were being constructed, Steven did not
insist on contractual terms, but, in the words of the U.S. Court
of Appeals for the Seventh Circuit, is asking “a court to try
to fix them.” Indiana Lumbermens Mut Ins v. Reinsurance
Results, 513 F.3d at 657.
[12] In addition, the doctrine of unjust enrichment is rec-
ognized only in the absence of an agreement between the par-
ties. Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 (1996).
Steven and the company claim, and the district court found,
that Jerald was unjustly enriched by receiving the buildings
for his offered price of $18,000 and that he should have to pay
more. But this overlooks the fact that the parties agreed that
the district court should order the receiver to sell the buildings
to Jerald for that price. To this, Steven and the company will
no doubt respond that both they and Jerald agreed that a sale
should take place on those terms with the reservation that the
sale would not preclude further pursuit of an unjust enrichment
claim. While this reservation certainly permitted Steven and
the company to pursue an unjust enrichment claim after the
sale, it did not change the law of unjust enrichment that gov-
erned it. And in our view, despite the parties’ agreement that
an unjust enrichment claim could still be pursued, the company
could not, consistent with unjust enrichment principles, agree
to sell the buildings to Jerald for one price and also ask that the
district court order him to pay more. Such an outcome results
in Jerald’s effectively purchasing the buildings for much more
than he offered and agreed to pay.
Because we find that the district court erred in entering
judgment for the company and against Jerald on the com-
pany’s unjust enrichment claim, we reverse that judgment and
remand the cause with directions to enter judgment in Jerald’s
favor.
- 728 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707Because we find that the unjust enrichment judgment was
erroneous, we need not consider Jerald’s contention that the
district court erred in its calculation of the amount Steven was
unjustly enriched. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it. Cain v. Lymber, 306 Neb. 820, 947
N.W.2d 541 (2020).
V. CONCLUSION
We find that we lack jurisdiction to review the district
court’s order denying Jerald’s motion for further directions.
We find that we have jurisdiction to review the district court’s
order finding that Jerald was unjustly enriched. On that issue,
we find the district court erred and therefore reverse, and
remand with directions to enter judgment in Jerald’s favor.
Appeal dismissed in part, and in
part reversed and remanded
with directions.