Boone River, LLC v. Miles -- supplemental opinion ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2023 09:10 AM CDT
- 413 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
BOONE RIVER, LLC V. MILES
Cite as 315 Neb. 413Boone River, LLC, and 11T NE, LLC, Nebraska
limited liability companies, appellees, v.
Nancy J. Miles and Cheryl L. Bettin,
appellants, and Robert R.
Moninger, appellee.
___ N.W.2d ___
Filed November 3, 2023. No. S-22-673.
supplemental opinion
Appeal from the District Court for Douglas County: LeAnne
M. Srb, Judge. Former opinion modified. Motion for rehearing
overruled.
Aimee S. Melton, Ronald E. Reagan, and Megan E. Shupe,
of Reagan, Melton & Delaney, L.L.P., for appellants.
Marc Odgaard for appellees Boone River, LLC, and 11T
NE, LLC.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by
the appellees, Boone River, LLC, and 11T NE, LLC (11T),
concerning our opinion in Boone River, LLC v. Miles, 314 Neb.
889, 994 N.W.2d 35 (2023).
We overrule the motion, but modify the opinion as follows:
- 414 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
BOONE RIVER, LLC V. MILES
Cite as 315 Neb. 413In the analysis section, under the heading “2. Claim
Preclusion” and the subheading “(b) 11T,” we withdraw the
third paragraph and substitute the following:
11T argues that it cannot be precluded from raising its
unjust enrichment claim because at the time it filed its
complaint in the first lawsuit, it had not yet made the
tax payments for which it now seeks an unjust enrich-
ment recovery. In support of this argument, 11T cites
cases generally holding that a party is not precluded from
raising claims that arose before the entry of judgment in
a prior action but after the filing of the complaint. See,
e.g., Hatch v. Boulder Town Council, 471 F.3d 1142 (10th
Cir. 2006). The rationale for such decisions, however,
is that in such instances, it is up to the plaintiff in the
prior action to decide if it wishes to amend its pleadings
to have claims that arose after the filing of the com-
plaint adjudicated in the first lawsuit. See, e.g., Computer
Associates Intern., Inc. v. Altai, Inc., 126 F.3d 365, 370
(2d Cir. 1997) (“[a]lthough a plaintiff may seek leave to
file a supplemental pleading to assert a new claim based
on actionable conduct which the defendant engaged in
after a lawsuit is commenced, . . . he is not required to
do so”). But in this case, as we have explained above
with respect to Boone River, the first lawsuit involved
a unique procedural setting in which Miles and Bettin
themselves raised the issue of 11T’s entitlement to reim-
bursement for its payment of taxes through their request
to quiet title in their names and their accompanying post-
ing of a bond. Because Miles and Bettin raised the issue
of 11T’s entitlement to reimbursement in the first lawsuit
and the relief 11T seeks could have been awarded as part
of the relief Miles and Bettin sought, we find the author-
ity 11T relies upon distinguishable.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.