Humphrey v. Smith , 311 Neb. 632 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    07/15/2022 08:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    HUMPHREY v. SMITH
    Cite as 
    311 Neb. 632
    Barbara J. Humphrey, appellee, v.
    Edward J. Smith and Dora
    Prosolow, appellants.
    ___ N.W.2d ___
    Filed May 27, 2022.     No. S-21-131.
    1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
    factual dispute presents a question of law.
    2. Summary Judgment: Appeal and Error. In reviewing a summary
    judgment, an appellate court views the evidence in the light most
    favorable to the party against whom the judgment was granted, and
    gives that party the benefit of all reasonable inferences deducible from
    the evidence.
    3. ____: ____. An appellate court affirms a lower court’s grant of sum-
    mary judgment if the pleadings and admitted evidence show that there
    is no genuine issue as to any material facts and that the moving party is
    entitled to judgment as a matter of law.
    4. Appeal and Error. Appellate review of a district court’s use of inherent
    power is for an abuse of discretion.
    5. ____. Plain error is error plainly evident from the record and of such a
    nature that to leave it uncorrected would result in damage to the integ-
    rity, reputation, or fairness of the judicial process.
    6. Jurisdiction: Appeal and Error. Before reaching the legal issues
    presented for review, it is the duty of an appellate court to determine
    whether it has jurisdiction over the matter before it.
    7. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, there must be a final order entered
    by the court from which the appeal is taken.
    8. Summary Judgment: Final Orders: Partition. Although partial sum-
    mary judgments are usually considered interlocutory and must ordinarily
    dispose of the whole merits of the case to be considered final, parti-
    tion actions are unique in that the action has two distinct stages: first,
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    311 Neb. 632
    the title determination and, second, the division of the real estate, i.e.,
    the “partition.”
    9.   Partition: Final Orders: Appeal and Error. When the dispute in a
    partition action is over the partition itself rather than ownership or title,
    there is no final, appealable order until the partition is made.
    10.   ____: ____: ____. When a partition action involves a dispute over
    ownership or title as well as a dispute over the method of partition, the
    parties have a right to have title determined first, and, if they elect to do
    so, an order resolving only the title dispute is a final, appealable order.
    11.   ____: ____: ____. When the only issue in a partition action depends on
    ownership and the nature of the title, an order determining that issue is
    a final, appealable order.
    12.   Summary Judgment. Summary judgment is proper when the pleadings
    and the evidence admitted at the hearing disclose that there is no gen­
    uine issue as to any material facts or as to the ultimate inferences that
    may be drawn from those facts and that the moving party is entitled to
    judgment as a matter of law.
    13.   Rules of the Supreme Court: Summary Judgment: Appeal and
    Error. In the context of Neb. Ct. R. § 6-1526, trial courts should have
    some discretion to adapt procedures to the needs of a particular case,
    and an appellate court will not intervene except where the discretion
    is abused.
    14.   Summary Judgment. In the summary judgment context, a fact is mate-
    rial only if it would affect the outcome of the case.
    15.   Equity: Intent. A court of equity will consider the purpose and not the
    form, and the particular form or words of a conveyance are unimportant
    if the intention of the parties can be ascertained.
    16.   Deeds: Mortgages: Intent. A deed of real estate, absolute in form, may
    be shown by parol to have been intended by the parties to it as security
    for a debt or loan, and as between such parties, at least, the instrument
    will be construed to be a mortgage.
    17.   Unjust Enrichment. Unjust enrichment claims are viable only in lim-
    ited circumstances, and the terms of an enforceable agreement normally
    displace any claim of unjust enrichment within their reach.
    18.   Appeal and Error. An appellee may not question a portion of a judg-
    ment at issue on appeal unless the appellee properly raises the issue by
    filing a cross-appeal.
    Appeal from the District Court for Douglas County: Duane
    C. Dougherty, Judge. Affirmed in part, and in part reversed
    and remanded with directions.
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    311 Nebraska Reports
    HUMPHREY v. SMITH
    Cite as 
    311 Neb. 632
    Judith A. Wells, of Law Office of Judith A. Wells, and
    Darnetta L. Hunter for appellants.
    Matthew P. Saathoff and Katherine A. Rehan, of Saathoff
    Law Group, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    INTRODUCTION
    Donald Humphrey and Edward J. Smith purchased a house
    together. Donald paid a portion of the purchase price of the
    home, which the parties agreed was to be a loan. Donald and
    Smith had a written loan agreement, wherein they agreed that
    Donald would remove his name from the property’s owner-
    ship once the loan was repaid. After Donald died, his wife,
    Barbara J. Humphrey, filed a complaint for partition of the
    property, contending she and Smith were tenants in common.
    Smith countered that before Donald died, he orally forgave
    the remainder of the loan, leaving Smith as the sole owner of
    the property.
    The district court for Douglas County, Nebraska, granted
    Barbara’s motion for summary judgment as to partition, but
    denied her motion for summary judgment as to unjust enrich-
    ment. The court also denied Smith’s motion for summary judg-
    ment as to his counterclaim for unjust enrichment claim. For
    reasons set forth herein, we affirm in part, and in part reverse
    and remand with directions consistent with this opinion.
    BACKGROUND
    Loan
    The real estate at issue is a single family dwelling located
    on North Ridge Drive in Omaha, Nebraska (the Home). In
    2015, Donald and Smith purchased the Home for $35,000.
    Both Donald and Smith were listed as purchasers on the pur-
    chase agreement and as grantees on a special warranty deed
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    to the Home. Donald paid approximately $25,000 toward the
    purchase of the Home, which, all parties agree, was a loan
    (the Loan). In order to arrange for the repayment of the Loan,
    Donald and Smith entered into a loan agreement, which pro-
    vided, in part:
    Smith found [the Home] to serve as a personal residence
    for him.
    ....
    [Donald’s] name is added to the property’s ownership
    as a way to secure repayment of the $25,192.92 loan
    made to . . . Smith, while [he] lives on the property as his
    permanent residence.
    After . . . Smith repays Donald . . . the loan, [Donald’s]
    name will be removed from the property’s ownership
    leaving . . . Smith as the sole owner of [the Home]. This
    agreement also states that if the inevitable or unavoid-
    able should happen to Donald . . . then his interest in the
    above-mentioned property shall fall to Barbara . . . but
    only until the lack [sic] portions of the $25,219.92 loan is
    repaid. Once the loan is paid in full, then Smith takes full
    ownership of the [Home].
    From approximately December 2015 until 2018, Smith made
    monthly payments toward the Loan pursuant to their agree-
    ment. Eventually, Smith stopped making payments, because
    he claimed that Donald forgave the Loan in June or July 2018.
    Smith’s partner, Dora Prosolow, also testified to hearing Donald
    orally forgive the Loan in June or July 2018. Accordingly,
    Smith did not make any payments toward the Loan in June
    or July of that year. However, the last recorded payment
    was dated August 3, 2018, and was for “Loan Repayment on
    House.” Donald died on August 24, 2018. Although Smith
    and Prosolow (collectively Appellants) are still residing in the
    Home, they have not paid rent or made any payments toward
    the Loan since the last recorded payment. Barbara refutes the
    allegation that Donald forgave the Loan and claims a balance
    remains on the Loan in the amount of $16,126.11.
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    Court Proceedings
    After Donald’s death, Barbara filed an affidavit for trans-
    fer of real property without probate with the Douglas County
    register of deeds. The affidavit purported to transfer Donald’s
    interest in the Home to Barbara. The affidavit stated, “The
    deceased is the sole owner of the real property described as An
    undivided 1/2 interest in Lot 16, Dillons 11th Addition . . . .” A
    title and escrow report further listed Barbara and Smith as the
    vested titleholders of the Home.
    Barbara then filed a complaint for partition in the district
    court, requesting that a referee be appointed to conduct a
    sale and to divide the proceeds between herself and Smith
    according to their respective ownership interests. Barbara also
    requested that the court permanently enjoin Appellants from
    possessing the home. Barbara further alleged that Appellants
    had been unjustly enriched, because they have enjoyed the
    benefits of living in the Home without paying rent, and that
    therefore, Barbara was entitled to those lost rents.
    Appellants filed an answer, denying most of the allegations
    in the complaint. Smith also filed a counterclaim alleging that
    the Humphreys were unjustly enriched because he performed
    work for them for which he was not adequately compensated.
    Although Smith concedes that the Humphreys paid him for the
    work at the agreed-upon wage, he nevertheless argues that the
    amount paid was less than what he should have received and
    that he lost $136,000 in unpaid services.
    Barbara filed her motion for summary judgment on her
    complaint and on Smith’s counterclaim. In support of her
    motion, Barbara filed a statement of undisputed facts, along
    with an evidence index. Appellants did not file an opposi-
    tion to summary judgment or a statement of disputed facts.
    However, Appellants did file a motion to dismiss with preju-
    dice, with several accompanying pleadings in support of
    said motion, including “Defend­ant’s Evidence of Forgery,”
    “Defend­ant’s Evidence of Adverse Posses­sion,” and “Defend­
    ant’s Evidence of Bias and Prejudice.” In response, Barbara
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    HUMPHREY v. SMITH
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    311 Neb. 632
    filed a motion to strike the pleadings for failure to comply
    with Neb. Ct. R. § 6-1526(B)(1) and (2), which requires
    a party to file an evidence index and an annotated state-
    ment of disputed facts when opposing a motion for sum-
    mary judgment.
    At the hearing on the motion for summary judgment,
    Appellants offered several exhibits into evidence which were
    received over Barbara’s objections. After the hearing, the dis-
    trict court granted the motion for summary judgment in part
    and denied it in part. Specifically, the court determined that
    the evidence indisputably showed that Barbara and Smith
    owned the Home as tenants in common and that as a result,
    Barbara was entitled to a partition as a matter of law. The court
    also granted summary judgment on Smith’s unjust enrichment
    counterclaim, finding that the evidence indisputably showed
    that Smith and the Humphreys agreed to an hourly wage and
    that the Humphreys paid Smith all amounts due under the
    agreement. However, the court determined that Barbara was
    not entitled to summary judgment on her claim for unjust
    enrichment for lost rent, because there was a factual dispute as
    to whether the loan had been forgiven. Additionally, the court
    declined to rule on Barbara’s request for attorney fees pursuant
    to 
    Neb. Rev. Stat. § 25-2179
     (Reissue 2016).
    The court ultimately found that a referee should be appointed
    to conduct a partition of the Home and that if the Home was
    to be sold at a referee’s sale, Barbara and Smith would each
    be entitled to 50 percent of the proceeds. The court stated,
    “Smith’s share will be offset by either (1) the unpaid balance
    of the Loan or (2) half the rental value of the Home for the
    period that [Appellants] have occupied it since they last made
    a monthly payment.” Appellants filed a timely appeal.
    ASSIGNMENTS OF ERROR
    Appellants assign three errors, but they can be summed up
    as asserting the district court erred in finding that there was
    no issue of disputed fact as to whether Barbara and Smith
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    HUMPHREY v. SMITH
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    owned the property as tenants in common and that based on
    those undisputed facts, Barbara was entitled to partition as a
    matter of law.
    STANDARD OF REVIEW
    [1] A jurisdictional issue that does not involve a factual dis-
    pute presents a question of law. 1
    [2,3] In reviewing a summary judgment, an appellate court
    views the evidence in the light most favorable to the party
    against whom the judgment was granted, and gives that party
    the benefit of all reasonable inferences deducible from the
    evidence. 2 An appellate court affirms a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts
    and that the moving party is entitled to judgment as a matter
    of law. 3
    [4] Appellate review of a district court’s use of inherent
    power is for an abuse of discretion. 4
    [5] Plain error is error plainly evident from the record and
    of such a nature that to leave it uncorrected would result in
    damage to the integrity, reputation, or fairness of the judi-
    cial process. 5
    ANALYSIS
    Jurisdiction
    [6-8] Before reaching the legal issues presented for review,
    it is the duty of an appellate court to determine whether it
    has jurisdiction over the matter before it. 6 For an appellate
    1
    Schlake v. Schlake, 
    294 Neb. 755
    , 
    885 N.W.2d 15
     (2016).
    2
    Bohling v. Bohling, 
    304 Neb. 968
    , 
    937 N.W.2d 855
     (2020).
    3
    
    Id.
    4
    
    Id.
    5
    Great Northern Ins. Co. v. Transit Auth. of Omaha, 
    308 Neb. 916
    , 
    958 N.W.2d 378
     (2021), disapproved on other grounds, Clark v. Sargent Irr.
    Dist., 
    311 Neb. 123
    , 
    971 N.W.2d 298
     (2022).
    6
    Schlake, 
    supra note 1
    .
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    court to acquire jurisdiction of an appeal, there must be a final
    order entered by the court from which the appeal is taken. 7
    Although partial summary judgments are usually considered
    interlocutory and must ordinarily dispose of the whole mer-
    its of the case to be considered final, partition actions are
    unique in that the action has two distinct stages: first, the title
    determination and, second, the division of the real estate, i.e.,
    the “partition.” 8
    The seminal case on the issue of the appealability of orders
    in a partition action is Peterson v. Damoude. 9 In that case, we
    explained that the appealability of orders in partition actions
    depends on the nature of the controversy resolved and that such
    orders can be arranged into three classes:
    (1) Where there is no controversy as to the ownership
    of the property in common and the right of partition, but
    the controversy is as to something relating to the parti-
    tion, as whether the property can be equitably divided
    or must be sold, one party contending that it can be
    equitably divided and asking for a distinct portion of the
    property, and the other party contending that it cannot
    be equitably divided and asking that the whole property
    be sold, or some similar controversy in regard to the parti-
    tion itself. When that is the case, the partition alone is the
    subject of litigation, and of course is not final until the
    partition is made.
    (2) The second class is where there is the same issue
    as above indicated as to the method of partition, and at
    the same time a distinct issue as to the title and owner-
    ship of the property. In such cases the parties would
    have a right to have their title first tried and determined,
    and, if that was done, the order thereon would be a final
    7
    Pennfield Oil Co. v. Winstrom, 
    267 Neb. 288
    , 
    673 N.W.2d 558
     (2004).
    8
    Guardian Tax Partners v. Skrupa Invest. Co., 
    295 Neb. 639
    , 
    889 N.W.2d 825
     (2017).
    9
    Peterson v. Damoude, 
    95 Neb. 469
    , 
    145 N.W. 847
     (1914).
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    order, . . . but if the matter is tried to the court, and the
    parties do not ask that their title be first determined,
    and there is no indication that the court proceeded first
    to determine the title, the parties should be held to
    have waived their right to appeal before the partition
    is completed.
    (3) The third class is where everything depends upon
    the title and the nature of the title, and where, when that
    question is determined, the whole thing is determined. In
    such case there can be no doubt . . . that, when that ques-
    tion is determined, such determination is a final order,
    within the meaning of the statute, and is appealable. 10
    [9-11] Put differently, when the dispute in a partition action
    is over the partition itself rather than ownership or title, there
    is no final, appealable order until the partition is made. 11 When
    a partition action involves a dispute over ownership or title as
    well as a dispute over the method of partition, the parties have
    a right to have title determined first, and, if they elect to do so,
    an order resolving only the title dispute is a final, appealable
    order. 12 When the only issue in a partition action depends on
    ownership and the nature of the title, an order determining that
    issue is a final, appealable order. 13
    In Peterson, the petition alleged that a decedent’s will dis-
    posed of certain real estate, prayed that the court construe the
    will “‘with reference to the right of the plaintiffs to have par-
    tition and division of said premises,’” and asked the court to
    quiet title in the plaintiffs. 14 On appeal, this court recognized
    that the “sole matter contested was the construction and effect
    of the will; there being no contest as to the partition if the
    10
    Id. at 471, 145 N.W. at 848, citing Sewell v. Whiton, 
    85 Neb. 478
    , 
    123 N.W. 1042
     (1909).
    11
    Schlake, 
    supra note 1
    .
    12
    
    Id.
    13
    
    Id.
    14
    Peterson, supra note 9, 95 Neb. at 472, 145 N.W. at 848.
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    will is construed as the plaintiffs contend.” 15 Thus, because
    the order construing the will determined the whole contro-
    versy, we determined that the case fell within the third class
    and concluded that the district court’s order was final.
    Then, in Beck v. Trapp, 16 another partition case, the district
    court found, in part, that the plaintiffs were the owners of the
    land and quieted their title to the same. The court also deter-
    mined the respective interests of the defendants and directed
    that the lands be partitioned. Subsequently, the appointed ref-
    eree reported that partition could not be made without preju-
    dice to the owners. Accordingly, the land was sold. On appeal,
    we determined that the case came within the third Peterson
    class, because “[t]he decree settling the question of title in
    the case at bar ‘determined the whole controversy.’ . . .” 17 In
    making this determination, we recognized that the real contro-
    versy in the action was the issue of title and that the partition
    prayed for was only incidental, because “[i]f the plaintiffs did
    not succeed in establishing their title, they would have no right
    to partition.” 18
    We have consistently applied the three classes set out in
    Peterson to determine when and under what circumstances
    orders in partition actions are final and appealable, and we
    conclude it is applicable here as well. As an initial matter, we
    first note that this case does not fall into either the first or
    second Peterson class, because the parties do not contest the
    method of partition. Barbara’s complaint asserts that a sale of
    the Home is necessary because the Home is not susceptible
    to a partition in kind. Appellants generally deny this allega-
    tion in their answer, but fail to assert what they believe is the
    appropriate method of partition. Further, in his deposition,
    Smith appeared to concede that if the Home is subject to a
    15
    
    Id.
    16
    Beck v. Trapp, 
    103 Neb. 832
    , 
    174 N.W. 610
     (1919).
    17
    
    Id. at 835
    , 174 N.W. at 611.
    18
    Id. at 834, 174 N.W. at 610.
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    partition, the appropriate method would be a referee sale of
    the Home.
    The real controversy in this case is the issue of title, and the
    partition is incidental to the issue of title. If Barbara does not
    succeed in establishing her title, she has no right to partition.
    If Barbara does succeed in establishing her title, the parties
    seem to agree that a referee’s sale is appropriate. Accordingly,
    this brings the case within the third Peterson class, because the
    order settling the question of title “determined the whole con-
    troversy,” and, as such, we find that the district court’s order is
    final and appealable.
    Summary Judgment
    Appellants assert that there exist genuine disputes of mate-
    rial fact concerning the parties’ respective titles to the Home
    and that therefore, summary judgment was not appropriate.
    Upon our review of the record, we agree.
    [12] Summary judgment is proper when the pleadings and
    the evidence admitted at the hearing disclose that there is no
    genuine issue as to any material facts or as to the ultimate
    inferences that may be drawn from those facts and that the
    moving party is entitled to judgment as a matter of law. 19 The
    evidence that may be received on a motion for summary judg-
    ment includes depositions, answers to interrogatories, admis-
    sions, stipulations, and affidavits. 20
    Before we consider whether Barbara’s motion for summary
    judgment should have been entered, we must first consider
    the possible implications of Appellants’ failure to file an
    evidence index and an annotated statement of disputed facts,
    as required by § 6-1526 in opposition to the motion. At the
    summary judgment hearing, Appellants offered, and the court
    received, several exhibits into evidence. Appellants also made
    certain arguments in support of their opposition to summary
    19
    Brown v. Morello, 
    308 Neb. 968
    , 
    957 N.W.2d 884
     (2021).
    20
    Bohling, 
    supra note 2
    .
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    judgment. Barbara contends that Appellants’ evidence and
    arguments made in opposition to her summary judgment
    motion should be disregarded because Appellants failed to
    comply with § 6-1526. We disagree.
    [13] In a recent case, we identified three reasons for
    § 6-1526, namely, to benefit the parties by making their claims
    as to disputed and undisputed facts clear and precise, to serve
    the courts by exposing the precise claims of the parties, and
    to focus the parties and the court on the specific factual con-
    tentions. 21 We noted, however, that in the context of § 6-1526,
    trial courts should have some discretion to adapt procedures to
    the needs of a particular case, and an appellate court will not
    intervene except where the discretion is abused. 22
    Here, the issues and facts raised and contested by Appellants
    were made clear by their “Evidence of Frivolous in Support
    of Motion and Notice for Dismissal” and “Evidence Index in
    Support of Their Motion to Dismiss Without Prejudice.” As
    such, we find no abuse of discretion in the court’s allowing
    Appellants to proceed with offering evidence notwithstanding
    their failure to comply with the summary judgment rule. But,
    we caution that trial courts should not condone a party’s failure
    to follow § 6-1526 merely because the party finds it inconve-
    nient or unfamiliar. 23 Instead, courts should set deadlines in
    compliance with the rule and require parties to submit neces-
    sary materials. 24
    Now turning to the appropriateness of granting sum-
    mary judgment, we note that the method of partition was
    never in question and we discern no genuine issue of mate-
    rial fact regarding that issue. We therefore focus our analy-
    sis on whether the district court erred in granting summary
    21
    Id.
    22
    Id.
    23
    Id.
    24
    Id.
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    judgment in favor of Barbara on the contested issue of title,
    specifically whether Donald forgave the Loan.
    As noted, it is undisputed that the $25,000 Donald paid
    toward the purchase price of the Home was a loan and that
    upon repayment of the Loan, Donald would relinquish his own-
    ership interest in the Home, leaving Smith as the sole owner.
    Thus, if the allegation that Donald forgave the Loan is true, it
    would necessarily follow that Smith is the sole owner of the
    Home and that Barbara does not have a right to partition.
    Despite Barbara’s argument that the Loan was not forgiven,
    the evidence adduced at the summary judgment hearing demon-
    strated that Donald may have made an affirmative representa-
    tion to Appellants that he would forgive the remaining balance
    on the Loan. At the hearing, transcripts from both Smith’s and
    Prosolow’s depositions were received into evidence. According
    to Smith’s deposition, Donald forgave the loan in June or July
    2018. This was corroborated by Prosolow, who testified that
    sometime in July 2018, she overheard Donald tell Smith that
    “as long as you take care of [Barbara], that’s all I want, then
    the loan is forgiven and you’ll have the truck so that you can
    take care of her.” Thus, there is a genuine dispute as to whether
    Donald forgave the loan.
    Moreover, the district court itself seemed to recognize this
    factual dispute when it declined to grant summary judgment
    on Barbara’s claim for unpaid rent, because it recognized that
    “there [was] conflicting evidence on this issue,” because “[a]
    reasonable mind could conclude that, although Smith initially
    agreed to repay the Loan in full, it was later forgiven and
    Smith is no longer obligated to repay it.” As such, summary
    judgment on the partition action was improper.
    [14] We further acknowledge that in the summary judg-
    ment context, a fact is material only if it would affect the
    outcome of the case. 25 Thus, we find it important to address
    the district court’s findings that even if the Loan was forgiven,
    25
    Brock v. Dunning, 
    288 Neb. 909
    , 
    854 N.W.2d 275
     (2014).
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    Donald retained his ownership interest in the Home because
    there is no evidence that he ever relinquished his owner-
    ship interest.
    [15,16] It is a well-settled principle that a court of equity
    will consider the purpose and not the form, and that the par-
    ticular form or words of a conveyance are unimportant if the
    intention of the parties can be ascertained. 26 Additionally, 
    Neb. Rev. Stat. § 76-251
     (Reissue 2018) states in part that “[e]very
    deed conveying real estate, which, by any other instrument in
    writing, shall appear to have been intended only as a security
    in the nature of a mortgage, though it be an absolute convey-
    ance in terms, shall be considered as a mortgage.” Generally, a
    deed of real estate, absolute in form, may be shown by parol to
    have been intended by the parties to it as security for a debt or
    loan, and as between such parties, at least, the instrument will
    be construed to be a mortgage. 27
    Here, there is evidence that the special warranty deed was
    intended by the parties to be security for a loan, as evidenced
    by the loan agreement, record of payments, and the testimony
    of the parties. If the finder of fact determined such was true,
    the deed could be construed as a mortgage, and the finder of
    fact could then conclude that Donald’s purported forgiveness of
    the Loan operated as a relinquishment of his ownership interest
    in the Home. As such, the question of whether the Loan was
    forgiven is a material issue of fact as it affects the determina-
    tion of title and the outcome of the partition claim. Therefore,
    the district court erred in granting summary judgment in favor
    of Barbara on the issue of partition.
    Smith’s Counterclaim
    Appellants argue the district court erred in granting sum-
    mary judgment in favor of Barbara on Smith’s counterclaim,
    wherein he alleged that Barbara had been unjustly enriched
    26
    Koehn v. Koehn, 
    164 Neb. 169
    , 
    81 N.W.2d 900
     (1957).
    27
    
    Id.
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    HUMPHREY v. SMITH
    Cite as 
    311 Neb. 632
    because the value of work he performed exceeded the amount
    he was paid. However, Appellants neither assigned nor suf-
    ficiently argued this error in their brief. It is a well-settled
    principle that to be considered by an appellate court, an
    alleged error must be both specifically assigned and spe-
    cifically argued in the brief of the party asserting the error. 28
    However, an appellate court may, at its discretion, notice a
    plain error not assigned. 29 Here, we choose to review for plain
    error, but find none. Plain error is error plainly evident from
    the record and of such a nature that to leave it uncorrected
    would result in damage to the integrity, reputation, or fairness
    of the judicial process. 30
    [17] Though the record reflects that Smith agreed to work at
    various hourly wages, and that the Humphreys paid him what
    he was owed, Smith nevertheless argued that he should have
    been paid more based on what a contractor would charge for
    the same work. Unjust enrichment claims are viable only in
    limited circumstances, and the terms of an enforceable agree-
    ment normally displace any claim of unjust enrichment within
    their reach. 31 Though contract claims supersede unjust enrich-
    ment claims, a plaintiff is permitted to allege both, and when
    a plaintiff elects to do so, a court should address the contract
    claim first. 32
    We agree with the district court that as a matter of law,
    Smith is precluded from asserting an unjust enrichment claim,
    because it is undisputed that Smith agreed to work at an hourly
    wage and that the Humphreys paid him all amounts due under
    that agreement. Accordingly, we conclude the district court did
    not commit plain error in granting summary judgment in favor
    of Barbara on Smith’s counterclaim.
    28
    Diamond v. State, 
    302 Neb. 892
    , 
    926 N.W.2d 71
     (2019).
    29
    In re Estate of Soule, 
    248 Neb. 878
    , 
    540 N.W.2d 118
     (1995).
    30
    Great Northern Ins. Co., supra note 5.
    31
    DH-1, LLC v. City of Falls City, 
    305 Neb. 23
    , 
    938 N.W.2d 319
     (2020).
    32
    
    Id.
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    Barbara’s Unjust Enrichment Claim
    [18] In her brief, Barbara argues the court erred in deny-
    ing her motion for summary judgment with respect to her
    unjust enrichment claim. In particular, Barbara contends that
    Appellants have been unjustly enriched by residing in the
    Home without paying rent. However, Barbara has not filed a
    cross-appeal, and, generally, an appellee may not question a
    portion of a judgment at issue on appeal unless the appellee
    properly raises the issue by filing a cross-appeal. 33 Moreover,
    the denial of a motion for summary judgment is typically
    an interlocutory order rather than a final order and thus not
    immediately appealable. 34 Accordingly, we decline to consider
    this argument.
    CONCLUSION
    The portion of the district court’s order granting summary
    judgment as to Barbara’s partition claim is reversed and the
    cause is remanded with directions consistent with this opinion.
    In all other respects, the district court’s order is affirmed.
    Affirmed in part, and in part reversed
    and remanded with directions.
    33
    Osmond State Bank v. Uecker Grain, 
    227 Neb. 636
    , 
    419 N.W.2d 518
    (1988).
    34
    State ex rel. Peterson v. Creative Comm. Promotions, 
    302 Neb. 606
    , 
    924 N.W.2d 664
     (2019).