Zook v. Zook , 312 Neb. 128 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/07/2022 01:05 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    Michael R. Zook and Teresa L. Chramosta, Copersonal
    Representatives of the Estate of Robert L. Zook,
    deceased, et al., appellees and cross-appellees, v.
    Jerry L. Zook, appellee and cross-appellant,
    and John B. Marshall, appellant.
    ___ N.W.2d ___
    Filed August 5, 2022.    No. S-21-176.
    1. Limitations of Actions: Appeal and Error. The point at which a statute
    of limitations begins to run must be determined from the facts of each
    case, and the decision of the trial court on the issue of the statute of
    limitations normally will not be set aside by an appellate court unless
    clearly wrong.
    2. ____: ____. The question of which statute of limitations applies is a
    question of law that an appellate court must decide independently of the
    conclusion reached by the trial court.
    3. Contracts: Restitution: Unjust Enrichment. A claim for unjust enrich-
    ment is a quasi-contract claim for restitution.
    4. Contracts: Restitution. Any quasi-contract claim for restitution is an
    action at law.
    5. Judgments: Appeal and Error. In reviewing questions of law, an
    appellate court is obligated to reach a conclusion independent of the
    determinations reached by the lower courts.
    6. Unjust Enrichment: Proof. To recover on a claim for unjust enrich-
    ment, the plaintiff must show that (1) the defendant received money, (2)
    the defendant retained possession of the money, and (3) the defendant in
    justice and fairness ought to pay the money to the plaintiff. The plain-
    tiff must also allege facts that the law of restitution would recognize as
    unjust enrichment.
    7. Unjust Enrichment: Words and Phrases. Unjust enrichment is a
    flexible concept. But it is a bedrock principle of restitution that unjust
    enrichment means a transfer of a benefit without adequate legal ground.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    8. Unjust Enrichment. Unjust enrichment results from a transaction that
    the law treats as ineffective to work a conclusive alteration in owner-
    ship rights.
    9. Unjust Enrichment: Contracts: Restitution: Liability. A third party
    is not liable in quasi-contract, unjust enrichment, or restitution merely
    because he or she has benefited from a contract between two others.
    There must be some misleading act, request for services or the like, to
    support such an action.
    10. Unjust Enrichment: Contracts. One who is free from fault cannot be
    held to be unjustly enriched merely because one has chosen to exercise
    a legal or contractual right.
    Appeal from the District Court for Dawson County: James
    E. Doyle IV, Judge. Dismissed in part, vacated in part, and in
    part reversed and remanded with directions.
    John D. Icenogle, of Bruner, Frank, Schumacher & Husak,
    L.L.C., for appellant.
    Jonathan M. Brown, of Walentine O’Toole, L.L.P., for appel-
    lees and cross-appellees.
    Claude E. Berreckman, Jr., and Claire K. Bazata, of
    Berreckman & Bazata, P.C., L.L.O., for appellee and cross-
    appellant.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    INTRODUCTION
    The plaintiffs, Michael R. Zook and Teresa L. Chramosta,
    as copersonal representatives of the estate of Robert L. Zook
    and in their individual capacities, and Robin L. Kuhlman, in
    her individual capacity, brought suit against Jerry L. Zook,
    alleging unjust enrichment and seeking a constructive trust,
    and against John B. Marshall, alleging negligence in failing to
    change the beneficiary on Robert’s life insurance. The district
    court found in favor of the plaintiffs and against Marshall
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    and Jerry. Marshall appeals, and Jerry cross-appeals. We dis-
    miss in part, vacate in part, and in part reverse and remand
    with directions.
    FACTUAL BACKGROUND
    The facts are largely undisputed. Jerry and Robert were
    brothers. In the 1980s and 1990s, the two operated a welding
    business in Cozad, Nebraska, of which each brother owned
    50 percent.
    In March 1993, the business purchased “key-man life insur-
    ance policies” on both Jerry and Robert, through Marshall, an
    insurance agent. In October 1993, the brothers entered into a
    buy-sell agreement, which provided for transfer of the busi-
    ness to the highest bidder. In addition, the agreement provided
    that at the time of payment of the purchase price and transfer
    of the stock, the parties were to each transfer to the other
    ownership of the life insurance policies each owned on the
    other’s life.
    In November 1993, Robert entered the highest bid and
    became the sole owner of the business. In December, Jerry’s
    attorney wrote a letter noting that Marshall was making
    arrangements to transfer the life insurance policies. A letter to
    Marshall from a Cozad bank at approximately that same time
    suggests that Robert intended to name his wife as beneficiary
    of his life insurance policy.
    Apparently, Marshall had Robert execute a change of ben-
    eficiary form that was sent to the insurance company. Marshall
    testified that he did this change of beneficiary on his own
    and was not directed to do so by Robert, but that Robert did
    sign the form. In a letter dated January 27, 1994, the insur-
    ance company sent the form back as unrecorded, stating that
    the “policy is owned by Jerry [and] we will need to have his
    signature on the form before the beneficiary can be changed.”
    Marshall testified that he does not recall informing Robert
    that the change in beneficiary form was returned without
    having been recorded and that he never informed Robert that
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    the beneficiary had not been changed to his wife. Marshall
    then sought Jerry’s signature to assign the policy, which
    occurred on August 28, 1995.
    Robert died on March 27, 2017, his wife having prede-
    ceased him. After Robert died, the insurance company sent
    Jerry information to assist him in filing a claim to the pro-
    ceeds. Meanwhile, Marshall had begun the same process with
    Robert’s children. The insurance company denied the plaintiffs’
    claim. In May 2017, proceeds of approximately $200,000 were
    paid to Jerry.
    Robert’s children, individually and in their capacities as
    copersonal representatives of the estate, filed suit against
    Marshall and Jerry. As to Jerry, they proceeded on theories of
    unjust enrichment, constructive trust, and conversion, allega-
    tions which Jerry denied. As to Marshall, they alleged profes-
    sional negligence by virtue of his position as an insurance
    agent. Marshall conceded that he had failed to file the change
    of beneficiary form, but argued that suit against him was
    barred by the applicable statute of limitations.
    The district court found in favor of Robert’s children and
    found Marshall and Jerry jointly and severally liable for
    $200,000. In addition, a constructive trust was imposed on the
    insurance proceeds in Jerry’s possession and Jerry was ordered
    to provide an accounting.
    Marshall appealed, and Jerry cross-appealed.
    ASSIGNMENTS OF ERROR
    On appeal, Marshall assigns that the district court erred in
    (1) applying the general tort statute of limitations rather than
    the professional statute of limitations and (2) finding that the
    claim was not barred by the statute of limitations.
    On cross-appeal, Jerry assigns that the district court erred in
    (1) finding clear and convincing evidence that he and Robert
    agreed to certain terms regarding the beneficiary designations
    on the life insurance policies; (2) finding that he had been
    unjustly enriched; (3) finding that he was aware that the life
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    insurance proceeds were intended to be paid to someone other
    than himself, yet he failed to rectify his unjust enrichment;
    (4) failing to apply the doctrine of laches; (5) establishing a
    constructive trust; and (6) finding that Marshall’s negligence
    and proximate cause did not absolve Jerry of liability.
    STANDARD OF REVIEW
    [1,2] The point at which a statute of limitations begins to
    run must be determined from the facts of each case, and the
    decision of the trial court on the issue of the statute of limita-
    tions normally will not be set aside by an appellate court unless
    clearly wrong. 1 The question of which statute of limitations
    applies is a question of law that an appellate court must decide
    independently of the conclusion reached by the trial court. 2
    [3,4] A claim for unjust enrichment is a quasi-contract claim
    for restitution. 3 This court has held that any quasi-contract
    claim for restitution is an action at law. 4
    [5] In reviewing questions of law, an appellate court is obli-
    gated to reach a conclusion independent of the determinations
    reached by the lower courts. 5
    ANALYSIS
    Marshall’s Appeal
    Marshall filed his notice of appeal on March 1, 2021. On
    March 22, Marshall died. No notice of Marshall’s death or
    any attempt to revive was filed with this court by any party
    to this litigation. But after statements made at oral arguments
    suggested his death, this court issued an order to show cause
    why Marshall’s appeal should not be dismissed as a result of
    1
    Colwell v. Mullen, 
    301 Neb. 408
    , 
    918 N.W.2d 858
     (2018).
    2
    See Reinke Mfg. Co. v. Hayes, 
    256 Neb. 442
    , 
    590 N.W.2d 380
     (1999).
    3
    In re Estate of Adelung, 
    306 Neb. 646
    , 
    947 N.W.2d 269
     (2020).
    4
    
    Id.
    5
    See Kissinger v. Genetic Eval. Ctr., 
    260 Neb. 431
    , 
    618 N.W.2d 429
     (2000).
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    his death. In response, Marshall’s wife requested that she be
    substituted as a party under 
    Neb. Rev. Stat. § 25-322
     (Reissue
    2016). As relevant here, in the event of the death of a party,
    § 25-322 provides this court discretion to substitute a suc-
    cessor in interest as a party. We lack sufficient information to
    determine whether Marshall’s wife is a successor in interest.
    Accordingly, we exercise our discretion to deny the request of
    Marshall’s wife and dismiss Marshall’s appeal.
    Jerry’s Cross-Appeal
    Though we do not address Marshall’s appeal, Jerry filed
    a separate cross-appeal to which we turn now. In that cross-
    appeal, Jerry assigns that the district court erred in finding
    unjust enrichment on his part and in imposing a construc-
    tive trust. We find merit to Jerry’s assertions and reverse the
    district court’s order insofar as it found Jerry was unjustly
    enriched.
    [6] To recover on a claim for unjust enrichment, the plain-
    tiff must show that (1) the defendant received money, (2)
    the defendant retained possession of the money, and (3) the
    defendant in justice and fairness ought to pay the money to the
    plaintiff. 6 The plaintiff must also allege facts that the law of
    restitution would recognize as unjust enrichment. 7
    [7,8] Unjust enrichment is a flexible concept. 8 But it is a
    bedrock principle of restitution that unjust enrichment means a
    transfer of a benefit without adequate legal ground. 9 It results
    from a transaction that the law treats as ineffective to work a
    conclusive alteration in ownership rights. 10
    6
    Kanne v. Visa U.S.A., 
    272 Neb. 489
    , 
    723 N.W.2d 293
     (2006).
    7
    City of Scottsbluff v. Waste Connections of Neb., 
    282 Neb. 848
    , 
    809 N.W.2d 725
     (2011).
    8
    
    Id.
    9
    
    Id.
    10
    
    Id.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    [9,10] A third party is not liable in quasi-contract, unjust
    enrichment, or restitution merely because he or she has bene­
    fited from a contract between two others. 11 Instead, there must
    be some misleading act, request for services or the like, to
    support such an action. 12 One who is free from fault cannot be
    held to be unjustly enriched merely because one has chosen to
    exercise a legal or contractual right. 13
    Although the plaintiffs have shown that Jerry received
    money and that Jerry retained that money, they have not shown
    that Jerry “in justice and fairness ought to pay the money” back
    to them. 14 Jerry was a beneficiary to Robert’s life insurance
    policy. When initially named a beneficiary, Jerry was Robert’s
    business partner. As we noted above, although the business
    relationship ended, Robert never changed the beneficiary of
    his policy.
    But just because the plaintiffs maintain that Robert would
    have changed his beneficiary had he known that Jerry was
    still named in the policy, it does not mean that Jerry was
    unjustly enriched. The plaintiffs do not allege, nor is there
    any evidence to support, an assertion that Jerry engaged in
    any wrongdoing in connection with his status as beneficiary
    to Robert’s policy. Nor is there any evidence in the record that
    would show that Robert was obligated to change his benefi-
    ciary to, for example, his children or wife, such that it would
    be unjust for Jerry to retain the life insurance proceeds. 15 Jerry
    was named the beneficiary of the policy, and he simply
    11
    See Haggard Drilling, Inc. v. Greene, 
    195 Neb. 136
    , 
    236 N.W.2d 841
    (1975).
    12
    
    Id.
    13
    Kissinger v. Genetic Eval. Ctr., supra note 5, citing Wrede v. Exchange
    Bank of Gibbon, 
    247 Neb. 907
    , 
    531 N.W.2d 523
     (1995).
    14
    See Kissinger v. Genetic Eval. Ctr., supra note 5, 
    260 Neb. at 436
    , 
    618 N.W.2d at 434
    .
    15
    See 22 Shepard’s Causes of Action 463 (1990) (collecting cases).
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ZOOK V. ZOOK
    Cite as 
    312 Neb. 128
    exercised his right under the policy to apply for and accept the
    proceeds of that policy.
    We conclude that the district court erred in finding that Jerry
    was unjustly enriched and in imposing a constructive trust on
    the proceeds. Accordingly, we reverse that finding and vacate
    the order imposing the constructive trust.
    CONCLUSION
    We dismiss Marshall’s appeal. As to Jerry’s cross-appeal,
    we reverse the district court’s findings, vacate the constructive
    trust, and remand with directions to dismiss.
    Dismissed in part, vacated in part, and in part
    reversed and remanded with directions.