Bloedorn Lumber Co. v. Nielson , 300 Neb. 722 ( 2018 )


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    10/19/2018 09:12 AM CDT
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    Nebraska Supreme Court A dvance Sheets
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    BLOEDORN LUMBER CO. v. NIELSON
    Cite as 
    300 Neb. 722
    Bloedorn Lumber Company of North Platte,
    a Nebraska corporation, appellee, v. Jarrod
    M. Nielson, appellee, and David A. Schilke
    and Candace Schilke, appellants.
    ___ N.W.2d ___
    Filed August 10, 2018.   No. S-16-329.
    1	 Breach of Contract: Damages. A suit for damages arising from breach
    of a contract presents an action at law.
    2.	 Contracts: Restitution. Any quasi-contract claim for restitution is an
    action at law.
    3.	 Judgments: Appeal and Error. In a bench trial of a law action, the trial
    court’s factual findings have the effect of a jury verdict and will not be
    disturbed on appeal unless clearly wrong.
    4.	 ____: ____. In reviewing a judgment awarded in a bench trial of a law
    action, an appellate court does not reweigh evidence, but considers the
    evidence in the light most favorable to the successful party and resolves
    evidentiary conflicts in favor of the successful party, who is entitled to
    every reasonable inference deducible from the evidence
    5.	 Venue: Appeal and Error. Where the record does not show an abuse of
    discretion, a ruling on a motion to transfer venue will not be disturbed
    on appeal.
    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 appeal.
    7.	 Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction over an appeal, there must be a final order or final
    judgment entered by the court from which the appeal is taken.
    8.	 Judgments: Final Orders: Words and Phrases. A final judgment is
    one that disposes of the case either by dismissing it before hearing is
    had upon the merits, or after trial by rendition of judgment for the plain-
    tiff or defendant.
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    BLOEDORN LUMBER CO. v. NIELSON
    Cite as 
    300 Neb. 722
    9.	 Contracts: Unjust Enrichment: Quantum Meruit. A claim that a
    court should imply a promise or obligation to prevent unjust enrichment
    goes by a number of names—“quasi-contract,” “implied-in-law con-
    tract,” or “quantum meruit.”
    10.	 Contracts. An express contract claim will supersede a quasi-contract
    claim arising out of the same transaction to the extent that the contract
    covers the subject matter underlying the requested relief.
    11.	 Contracts: Liens. A party may pursue and recover on an unjust enrich-
    ment or a quasi-contract claim, notwithstanding a construction lien.
    12.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    Appeal from the District Court for Lincoln County: Donald
    E. Rowlands, Judge. Affirmed.
    Patrick M. Heng and Kortnei N. Hoeft, of Waite, McWha &
    Heng, for appellants.
    George E. Clough, and, on brief, Andrea Finegan
    McChesney, of McChesney & Farrell, for appellee Bloedorn
    Lumber Company of North Platte.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Daugherty, District Judge.
    Papik, J.
    Jarrod M. Nielson alleged that David A. Schilke and Candace
    Schilke failed to pay him for work he performed on their resi-
    dence. Following a bench trial, the district court entered judg-
    ment in favor of Nielson and against the Schilkes. The Schilkes
    raise various assignments of error regarding that judgment on
    appeal, but we find no merit to those assignments of error and,
    consequently, affirm the judgment of the district court.
    BACKGROUND
    Project.
    This dispute arises out of a home improvement project.
    In 2013 and 2014, Nielson worked on an addition to the
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    BLOEDORN LUMBER CO. v. NIELSON
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    300 Neb. 722
    Schilkes’ home. The project included the installation of granite
    countertops. Nielson obtained the countertops and accompa-
    nying materials from Bloedorn Lumber Company of North
    Platte (Bloedorn).
    After the countertops were installed in May 2014, Nielson
    stopped working on the Schilkes’ home. The parties dispute the
    reason Nielson stopped working. The Schilkes say they fired
    Nielson because they were unhappy with his work. In par-
    ticular, Candace Schilke testified that the countertops Nielson
    had installed contained a type of sink other than the one
    she requested and had seams that were “sticking up and
    out.” Nielson says he stopped working because he was not
    being paid.
    Both Nielson and Bloedorn eventually filed construction
    liens on the Schilkes’ home. Neither Nielson nor Bloedorn
    instituted legal proceedings to enforce the liens.
    Parties’ Claims.
    In February 2015, Bloedorn filed a complaint against Nielson
    and the Schilkes in the district court for Lincoln County.
    Bloedorn alleged that Nielson had ordered and received the
    countertops and accompanying materials from Bloedorn for
    installation in the Schilkes’ home, but had not paid Bloedorn.
    Nielson and the Schilkes answered Bloedorn’s lawsuit, but
    also filed cross-claims against each other. Nielson alleged that
    the parties entered into an oral agreement in which Nielson
    would build an addition onto the Schilkes’ home in exchange
    for payment and that the Schilkes breached that agreement
    by failing to pay him for his time and the materials. Nielson
    also alleged that the Schilkes had been unjustly enriched as a
    result of the countertops’ being installed without payment. The
    Schilkes alleged that they contracted with Nielson to complete
    construction work on their residence and that they had paid
    Nielson all he was owed, but that Nielson had failed to pay
    Bloedorn for the construction materials. On the basis of these
    facts, the Schilkes asserted that Nielson was liable to them for
    fraud and unjust enrichment.
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    BLOEDORN LUMBER CO. v. NIELSON
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    Motion to Transfer Venue.
    Early in the case, the Schilkes filed a motion to transfer
    venue from the district court for Lincoln County to the district
    court for Chase County. They argued that transfer was appro-
    priate because their residence is in Chase County. The district
    court overruled the motion, finding that venue was present in
    Lincoln County on the basis of Nielson’s residence there. It
    added that any inconvenience suffered by the Schilkes was off-
    set by the inconvenience Nielson and Bloedorn would endure
    if the case were transferred to Chase County.
    District Court’s Resolution
    of Parties’ Claims.
    A bench trial was held in January 2016. Bloedorn presented
    evidence that it provided Nielson with the countertops and
    accompanying materials for installation in the Schilkes’ resi-
    dence. Nielson testified that the Schilkes were to pay him for
    the cost of materials plus a markup. Nielson acknowledged
    his debt to Bloedorn for the countertops and accompanying
    materials. The testimony conflicted, however, as to whether
    the Schilkes had paid Nielson for the installation of the
    countertops. Candace Schilke testified that she paid Nielson
    for the installation of the countertops via a $30,000 check
    before they were installed. Nielson disagreed, taking the posi-
    tion that the $30,000 check was in payment for other work
    and materials.
    After the trial, the district court issued a judgment, styled
    as a journal entry and order, disposing of the parties’ various
    claims. With respect to Bloedorn’s claim against Nielson, the
    court entered judgment in favor of Bloedorn in the amount
    of $11,551.89 (the cost of the countertops and accompany-
    ing materials), plus statutory interest. The court dismissed
    Bloedorn’s claim against the Schilkes, explaining that there
    was no agreement between the Schilkes and Bloedorn which
    would support a breach of contract claim and that the Schilkes
    were not unjustly enriched at Bloedorn’s expense. The district
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    court also dismissed the Schilkes’ cross-claim against Nielson
    on the grounds that Nielson was not unjustly enriched and that
    there was no evidence Nielson had committed actual or con-
    structive fraud.
    Finally, the district court found that Nielson’s claim against
    the Schilkes “ha[d] merit.” It explained that Nielson installed
    the countertops in the Schilkes’ residence and that Candace
    Schilke admitted that the countertops increased the value of the
    residence. The court added that while the Schilkes had com-
    plaints about the quality of Nielson’s work, no evidence had
    been introduced as to the cost of remedying alleged defects or
    that the defects decreased the value of the home. The district
    court awarded Nielson $11,551.89, which the court found was
    the “fair and reasonable amount that the Schilkes have been
    unjustly enriched.” The district court made no reference to
    Nielson’s allegation that the Schilkes breached their agreement
    with him.
    The Schilkes later filed a motion for a new trial. The district
    court overruled the motion, and the Schilkes appealed.
    ASSIGNMENTS OF ERROR
    The Schilkes assign, consolidated and reordered, that the
    district court erred (1) in finding that Nielson was entitled to
    recover under the theory of unjust enrichment when a contract
    existed between the parties, (2) in finding that Nielson was
    entitled to recover under the theory of unjust enrichment when
    Nielson had a statutory remedy of foreclosure on his construc-
    tion lien, (3) in finding that Nielson was entitled to recover
    under the theory of unjust enrichment when the evidence did
    not show the Schilkes were unjustly enriched, and (4) in deny-
    ing the motion to transfer venue.
    STANDARD OF REVIEW
    [1,2] A suit for damages arising from breach of a con-
    tract presents an action at law. Par 3, Inc. v. Livingston, 
    268 Neb. 636
    , 
    686 N.W.2d 369
    (2004). The same is true for any
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    action asserting a quasi-contract claim for restitution. City of
    Scottsbluff v. Waste Connections of Neb., 
    282 Neb. 848
    , 
    809 N.W.2d 725
    (2011).
    [3,4] In a bench trial of a law action, the trial court’s fac-
    tual findings have the effect of a jury verdict and will not be
    disturbed on appeal unless clearly wrong. 
    Id. In reviewing
    a
    judgment awarded in a bench trial of a law action, an appellate
    court does not reweigh evidence, but considers the evidence in
    the light most favorable to the successful party and resolves
    evidentiary conflicts in favor of the successful party, who
    is entitled to every reasonable inference deducible from the
    evidence. Hooper v. Freedom Fin. Group, 
    280 Neb. 111
    , 
    784 N.W.2d 437
    (2010).
    [5] Where the record does not show an abuse of discretion,
    a ruling on a motion to transfer venue will not be disturbed on
    appeal. Community First State Bank v. Olsen, 
    255 Neb. 617
    ,
    
    587 N.W.2d 364
    (1998).
    ANALYSIS
    Appellate Jurisdiction.
    [6] Before reaching the legal issues presented for review, it
    is the duty of an appellate court to determine whether it has
    jurisdiction over the appeal. In re Estate of Abbot-Ochsner,
    
    299 Neb. 596
    , 
    910 N.W.2d 504
    (2018). While not raised
    by either of the parties, we stop to address our jurisdiction
    because, at first blush, it could appear that the district court
    did not resolve all claims presented. Although Nielson referred
    to both breach of contract and unjust enrichment in his cross-
    claim against the Schilkes, the district court made no reference
    to Nielson’s breach of contract theory of recovery.
    [7,8] For an appellate court to acquire jurisdiction over
    an appeal, there must be a final order or final judgment
    entered by the court from which the appeal is taken. Ginger
    Cove Common Area Co. v. Wiekhorst, 
    296 Neb. 416
    , 
    893 N.W.2d 467
    (2017). A final judgment is one that disposes of
    the case either by dismissing it before hearing is had upon
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    the merits, or after trial by rendition of judgment for the plain-
    tiff or defendant. Boyd v. Cook, 
    298 Neb. 819
    , 
    906 N.W.2d 31
    (2018).
    While the district court’s judgment did not reference
    Nielson’s allegation that the Schilkes breached their contract
    with him, it does not automatically follow that the judgment
    was not final. Nielson’s cross-claim asserted two separate
    theories of recovery—unjust enrichment and breach of con-
    tract. Because those theories of recovery are based on the same
    operative facts, however, Nielson asserted one cause of action.
    See Poppert v. Dicke, 
    275 Neb. 562
    , 
    747 N.W.2d 629
    (2008).
    The district court awarded judgment in favor of Nielson on his
    one cause of action against the Schilkes and also resolved all
    claims raised by other parties in the action. Nothing further
    was left for the court’s consideration. The judgment was thus
    final and appealable.
    Effect of Express Contract on
    Unjust Enrichment Recovery.
    We begin our analysis of the merits of the Schilkes’ appeal
    with their contention that the district court erred by granting
    Nielsen a recovery on the basis of unjust enrichment when
    the parties had an express contract covering the same subject
    matter. As noted above, the district court entered judgment in
    favor of Nielson on unjust enrichment grounds without explic-
    itly referring to Nielson’s allegation that the Schilkes had
    breached their contract with him.
    [9] Before addressing this argument, we pause briefly to
    review the nature of unjust enrichment claims and their rela-
    tionship to claims for breach of contract. A claim that a court
    should imply a promise or obligation to prevent unjust enrich-
    ment goes by a number of names—“quasi-contract,” “implied-
    in-law contract,” or “quantum meruit.” See, City of Scottsbluff
    v. Waste Connections of Neb., 
    282 Neb. 848
    , 
    809 N.W.2d 725
    (2011); Associated Wrecking v. Wiekhorst Bros., 
    228 Neb. 764
    , 
    424 N.W.2d 343
    (1988). Such claims do not arise from
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    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 unjustifiably
    obtained at the plaintiff’s expense.” City of Scottsbluff v. Waste
    Connections of 
    Neb., 282 Neb. at 857
    , 809 N.W.2d at 738.
    [10] Unjust enrichment or quasi-contract claims are viable
    only in limited circumstances. For example, as the Schilkes
    correctly point out, “‘[t]he terms of an enforceable agreement
    normally displace any claim of unjust enrichment within their
    reach.’” 
    Id. at 860,
    809 N.W.2d at 740, quoting Restatement
    (Third) of Restitution and Unjust Enrichment § 2, comment
    c. (2011). Put another way, an express contract claim will
    supersede a quasi-contract claim arising out of the same trans-
    action to the extent that the contract covers the subject matter
    underlying the requested relief. See City of Scottsbluff v. Waste
    Connections of 
    Neb., supra
    .
    Although contract claims supersede unjust enrichment or
    quasi-contract claims, a plaintiff is permitted to allege both.
    See Professional Recruiters v. Oliver, 
    235 Neb. 508
    , 
    456 N.W.2d 103
    (1990). When a plaintiff does so, we have said
    that a court should address the contract claim first. See City of
    Scottsbluff v. Waste Connections of 
    Neb., supra
    . But if recovery
    on an express contract theory proves not to be viable, there are
    circumstances in which recovery may still be had on an unjust
    enrichment or a quasi-contract basis.
    One such circumstance is when a party seeking payment
    only partially (but not substantially) performs a contract and
    is thus precluded from a breach of contract recovery. See RM
    Campbell Indus. v. Midwest Renewable Energy, 
    294 Neb. 326
    ,
    
    886 N.W.2d 240
    (2016) (explaining that to successfully bring
    breach of contract action, plaintiff must establish substantial
    performance of contract). We have held that if a party only
    partially performs a contract and the other party has accepted
    and retained the benefits thereof, the party seeking payment
    may recover “the reasonable or fair value of such performance,
    subject to the reciprocal right of the other party to recoup such
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    damages as he or she has suffered” from the failure to perform.
    
    Id. at 342,
    866 N.W.2d at 255. See, also, Peters v. Halligan,
    
    182 Neb. 51
    , 60, 
    152 N.W.2d 103
    , 109 (1967) (characterizing
    recovery that is available for party who partially performs con-
    tract when other party has retained benefits thereof as being on
    “a quantum meruit basis”).
    The foregoing discussion is relevant because there is evi-
    dence in the record that this very scenario occurred here. Both
    Nielson and the Schilkes alleged and introduced evidence
    of an oral agreement that Nielson would have granite coun-
    tertops installed in exchange for payment, which, accord-
    ing to Nielson, was to include a markup for materials. And
    while Candace Schilke testified that the countertops had visible
    seams “sticking up and out” and contained a type of sink other
    than the one she requested, she also admitted that Nielson had
    the countertops installed and that they increased the value of
    the residence.
    This evidence would allow the district court to reasonably
    conclude that Nielson had partially performed the parties’
    agreement and was thus entitled to receive the reasonable value
    of the benefits he conferred on the Schilkes. Because we find
    that the district court’s judgment in favor of Nielson on unjust
    enrichment grounds is supported by the evidence, the Schilkes’
    assignment of error fails.
    Effect of Construction Lien on
    Unjust Enrichment Recovery.
    The Schilkes fare no better with their argument that the trial
    court erred by awarding Nielson an unjust enrichment recovery
    when he could have foreclosed on his construction lien. Here,
    the Schilkes contend that because Nielson had the option to
    pursue foreclosure of his construction lien, he could not val-
    idly recover on an unjust enrichment or a quasi-contract basis.
    We disagree.
    In Tilt-Up Concrete v. Star City/Federal, 
    261 Neb. 64
    ,
    
    621 N.W.2d 502
    (2001), it was argued that the Nebraska
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    Construction Lien Act precluded a construction lienholder from
    pursuing an action for breach of contract. We rejected the
    argument, relying on a rule recognized in many other jurisdic-
    tions that unless otherwise provided by statute, the remedy
    for a mechanic’s lien and the remedy for the underlying debt
    may be pursued at the same time or in succession. We pointed
    out that this rule is consistent with the principle that a statute
    will not be interpreted to restrict or remove a common-law
    right unless plainly compelled by the language, because the
    Nebraska Construction Lien Act does not indicate that it pre-
    cludes a breach of contract action.
    [11] While Tilt-Up Concrete held that a party may pursue a
    breach of contract action notwithstanding a construction lien,
    its reasoning indicates that a party may also pursue and recover
    on an unjust enrichment or a quasi-contract claim, notwith-
    standing a construction lien. The right to an unjust enrichment
    or a quasi-contract recovery also existed at common law, see
    Restatement (First) of Contracts § 5, comment a. (1932), and
    the Nebraska Construction Lien Act does not indicate that it
    was meant to preclude such claims. We thus join other courts
    that have held that the existence of a construction lien does
    not preclude an unjust enrichment or a quasi-contract recovery
    for work or materials covered by the lien. See, e.g., Brown
    Sprinkler Corp. v. Somerset-Pulaski, 
    335 S.W.3d 455
    (Ky. App.
    2010); Morris Pumps v. Centerline Piping, 
    273 Mich. App. 187
    , 
    729 N.W.2d 898
    (2006); A-Tech Concrete Co. v. West
    Orange Public Schools, No. L-6044-05, 
    2008 WL 4057750
    (N.J. Super. Sept. 3, 2008) (unpublished opinion).
    Because Nielson’s filing of a construction lien does not pre-
    clude an unjust enrichment recovery, the Schilkes’ assignment
    of error lacks merit.
    Evidence to Support Unjust
    Enrichment Recovery.
    We must also disagree with the Schilkes’ contention that
    Nielson failed to show that the Schilkes had been unjustly
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    enriched. The Schilkes contend that they were not unjustly
    enriched for two reasons: because Nielson did not transfer
    any benefit to them and because they paid Nielson for the
    countertops.
    With respect to the Schilkes’ first contention, the evidence
    shows that Nielson acted as the Schilkes’ contractor, arranged
    for the installation of the countertops, and incurred a debt to
    Bloedorn for the cost of the countertops. The evidence also
    shows that the countertops increased the value of the Schilkes’
    residence. The Schilkes are mistaken that Nielson did not
    transfer any benefit to them.
    With respect to the Schilkes’ argument that they paid
    Nielson for the countertops, the Schilkes point to Candace
    Schilke’s testimony that she intended to pay for the coun-
    tertops with the $30,000 check referenced above. At most,
    however, this merely establishes a conflict in the evidence.
    Nielson testified that he was not paid for the countertops.
    We must resolve any such conflicts in favor of Nielson and
    give Nielson every reasonable inference deducible from the
    evidence. See Henton v. Nokes, 
    258 Neb. 230
    , 
    603 N.W.2d 1
    (1999). Under this standard, we cannot say that the trial
    court clearly erred by finding that Nielson was not paid for
    the countertops.
    Motion to Transfer Venue.
    This leaves only the Schilkes’ assignment that the district
    court erred in denying their motion to transfer venue to Chase
    County. We find that it did not.
    [12] As noted above, a ruling on a motion to transfer venue
    will not be disturbed on appeal unless the record shows an
    abuse of discretion. Community First State Bank v. Olsen,
    
    255 Neb. 617
    , 
    587 N.W.2d 364
    (1998). An abuse of discre-
    tion occurs when a trial court’s decision is based upon reasons
    that are untenable or unreasonable or if its action is clearly
    against justice or conscience, reason, and evidence. Lombardo
    v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
    (2018).
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    Here, the district court overruled the Schilkes’ motion to
    transfer venue on the ground that any inconvenience suffered
    by the Schilkes by allowing the case to proceed in Lincoln
    County was offset by the inconvenience that would be caused
    to Nielson and Bloedorn if the case were transferred to Chase
    County. We find the court’s reasoning sound and certainly not
    an abuse of discretion.
    CONCLUSION
    Finding no merit in any of the assignments of error raised by
    the Schilkes, we affirm.
    A ffirmed.