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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2022 08:06 AM CDT
- 632 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632Barbara 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,
- 633 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632the 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.
- 634 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632Judith 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
- 635 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632to 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.
- 636 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632Court 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
- 637 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632filed 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
- 638 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632owned 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.
- 639 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632court 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).
- 640 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632order, . . . 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.
- 641 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632will 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.
- 642 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632partition, 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.
- 643 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632judgment. 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.
- 644 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632judgment 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).
- 645 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632Donald 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.- 646 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632because 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.- 647 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
HUMPHREY v. SMITH
Cite as 311 Neb. 632Barbara’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).