Ogallala Livestock Auction Market v. Leonard , 30 Neb. Ct. App. 335 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
11/16/2021 08:08 AM CST
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Nebraska Court of Appeals Advance Sheets
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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 335Ogallala Livestock Auction Market, Inc.,
a Nebraska corporation, appellant, v.
Charles D. Leonard, doing business
as Leonard Cattle Company, and
Pinnacle Bank, appellees.
___ N.W.2d ___
Filed November 2, 2021. No. A-20-772.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s order granting a motion to dismiss de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face. In cases in which a plaintiff
does not or cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if they sug-
gest the existence of the element and raise a reasonable expectation that
discovery will reveal evidence of the element or claim.
3. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an
order dismissing a complaint, an appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences of law and
fact which may be drawn therefrom, but not the plaintiff’s conclusion.
4. Torts: Conversion: Property: Words and Phrases. Tortious conver-
sion is any distinct act of dominion wrongfully asserted over another’s
property in denial of or inconsistent with that person’s rights.
5. Banks and Banking: Words and Phrases. A deposit of funds in a bank
to the credit of the depositor ordinarily is termed a “general deposit,”
and in such cases, the title to the funds deposited passes to the bank,
and the relation of debtor and creditor exists between the bank and
the depositor.
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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 3356. Banks and Banking: Presumptions. The presumption is that a bank
deposit made in the usual course of business is a general deposit and not
a special or trust deposit.
7. Banks and Banking: Property: Words and Phrases. Special deposits
occur where the property, securities, or funds are left with the bank for
safekeeping only, and the specific property or fund is to be returned to
the depositor.
8. Banks and Banking: Bailment. In the case of special deposits, the
bank is a mere bailee, and the title to the deposit does not pass to the
bank but remains in the depositor.
9. Banks and Banking: Words and Phrases. Deposits made for a specific
purpose occur where a fund is deposited in a bank for the purpose of
paying a specific obligation.
10. Restitution: Unjust Enrichment. To recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of restitution
would recognize as unjust enrichment.
11. Unjust Enrichment: Words and Phrases. Unjust enrichment means
a transfer of a benefit without adequate legal ground. It results from a
transaction that the law treats as ineffective to work a conclusive altera-
tion in ownership rights.
12. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
13. Rules of the Supreme Court: Appeal and Error. When a brief of
an appellee fails to present a proper cross-appeal pursuant to Neb. Ct.
R. App. P. § 2-109 (rev. 2014), an appellate court declines to consider
its merits.
Appeal from the District Court for Keith County: Richard
A. Birch, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
James R. Korth, of Reynolds, Korth & Samuelson, P.C.,
L.L.O., for appellant.
T. Randall Wright and Nicholas A. Buda, of Baird Holm,
L.L.P., for appellee Pinnacle Bank.
Riedmann, Bishop, and Arterburn, Judges.
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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 335Riedmann, Judge.
INTRODUCTION
Ogallala Livestock Auction Market, Inc. (Ogallala), appeals
the order of the district court for Keith County which dismissed
its second amended complaint for failing to state a claim
upon which relief could be granted. Pinnacle Bank (Pinnacle)
attempts to cross-appeal. For the reasons that follow, we affirm
in part, and in part reverse and remand the cause for further
proceedings.
STATEMENT OF FACTS
Ogallala asserts in its second amended complaint the fol-
lowing facts: Charles D. Leonard worked as a cattle and
livestock broker, whereby he purchased cattle and other live-
stock for third-party buyers on a commission basis. He was
a longtime banking customer of Pinnacle and maintained a
bank account with Pinnacle for his cattle business that was
referred to as “Account 161.” Account 161 consistently had a
negative balance due to the manner in which Leonard operated
his business. Generally, Leonard would draw checks upon a
negative balance in Account 161 for the purchase of cattle, and
when presented with the checks, Pinnacle would communicate
with Leonard in order to verify that Leonard was anticipating
receiving deposits in an amount sufficient to cover the checks
he had written. After Leonard would verify the expected depos-
its, Pinnacle would honor the checks Leonard had written,
sometimes doing so prior to receiving the anticipated depos-
its. By allowing Leonard’s checking account to remain open
despite a negative balance, Pinnacle assessed fees and interest
to Account 161 of tens of thousands of dollars.
In 2015, Leonard contracted with certain third-party buyers
for the purchase of cattle. He ultimately purchased 1,584 head
of cattle from Ogallala and delivered them to the separate buy-
ers. To cover the cost of the cattle, Leonard drafted three checks
to Ogallala drawn on Account 161 totaling $2,924,586.22.
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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 335Around the same time, five deposits were made into Account
161 as payments to Leonard from the third-party buyers. Three
of the deposits were checks that Leonard personally deposited
into the account, and two were wire transfers from the third-
party buyers.
When Ogallala presented the checks from Leonard to
Pinnacle for payment, Pinnacle dishonored the checks. Instead
of clearing the checks, Pinnacle utilized the deposited funds
to set off the outstanding fees and interest Leonard owed on
Account 161. Thereafter, Leonard failed to make payment to
Ogallala or return the cattle.
Accordingly, Ogallala commenced this action and initially
named Leonard, doing business as Leonard Cattle Company,
and Pinnacle as defendants. Leonard subsequently filed a
suggestion of bankruptcy and entered into a stipulation with
Ogallala whereby Leonard would remain in this case as a nec-
essary party only. Ogallala then filed an amended complaint,
which asserted claims solely against Pinnacle. Pinnacle filed
a motion to dismiss for failure to state a claim upon which
relief could be granted. The district court held a hearing on
the matter and issued an order, acknowledging that it initially
intended to grant the motion to dismiss. However, after further
review of the amended complaint and legal standards, the dis-
trict court concluded that “while [Ogallala] may be grasping
at straws[,] there might be one straw left.” It therefore denied
Pinnacle’s motion to dismiss and allowed Ogallala to amend
its complaint.
Thereafter, Ogallala filed a second amended complaint, the
operative complaint, which asserted four “causes of action”
against Pinnacle. Pinnacle, again, moved to dismiss the com-
plaint for failing to state a cognizable claim for relief. The
district court ultimately agreed, concluding that the opera-
tive complaint did not allege any legal basis that would give
Ogallala a cause of action against Pinnacle regarding its dis-
honor of the checks that Leonard had written on Account 161.
Therefore, because the complaint did not allege sufficient
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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 335facts, accepted as true, to state a claim for relief that was
plausible on its face, nor did the factual allegations raise a
reasonable expectation that discovery would reveal evidence
of a claim, the district court dismissed the second amended
complaint without prejudice. Ogallala appeals, and Pinnacle
attempts to cross-appeal.
ASSIGNMENTS OF ERROR
Ogallala assigns that the district court erred in granting
Pinnacle’s motion to dismiss for failure to state a claim.
In its attempted cross-appeal, Pinnacle assigns that the dis-
trict court erred in dismissing the amended complaint without
prejudice instead of with prejudice.
STANDARD OF REVIEW
[1] An appellate court reviews a district court’s order grant-
ing a motion to dismiss de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Chaney v. Evnen, 307 Neb. 512,
949 N.W.2d 761 (2020).
ANALYSIS
[2,3] Ogallala assigns that the district court erred in grant-
ing Pinnacle’s motion to dismiss and finding that the operative
complaint failed to state a claim upon which relief could be
granted. To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face. Id. In cases in
which a plaintiff does not or cannot allege specific facts show-
ing a necessary element, the factual allegations, taken as true,
are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will
reveal evidence of the element or claim. Id. When reviewing
an order dismissing a complaint, an appellate court accepts as
true all facts which are well pled and the proper and reason-
able inferences of law and fact which may be drawn therefrom,
but not the plaintiff’s conclusion. Id. For purposes of a motion
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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 335to dismiss, a court is not obliged to accept as true a legal con-
clusion couched as a factual allegation, and threadbare recitals
of the elements of a cause of action, supported by mere conclu-
sory statements, do not suffice. Id.Claim for Conversion.
[4] The operative complaint first asserts a cause of action for
conversion. Tortious conversion is any distinct act of dominion
wrongfully asserted over another’s property in denial of or
inconsistent with that person’s rights. Zimmerman v. FirsTier
Bank, 255 Neb. 410, 585 N.W.2d 445 (1998). The plaintiff
must establish a right to immediate possession of the property
at the time of the alleged conversion. Id. In other words, the
essence of conversion is not acquisition by the wrongdoer, but
the act of depriving the owner wrongfully of the property. Id.Thus, in order to state a cause of action for its claim for con-
version here, Ogallala was required to allege sufficient facts
which would establish that it was the owner of the property it
alleges Pinnacle converted, which was the funds deposited into
Account 161.
Pinnacle generally relies on Galyen Petroleum Co. v. Hixson,
213 Neb. 683, 331 N.W.2d 1 (1983), to argue that Ogallala’s
complaint fails to state a claim for conversion, because Ogallala
has no right in funds represented by a check and no standing
to sue the drawee bank, Pinnacle, on a dishonored check. In
Galyen Petroleum Co., the plaintiff sued the drawer of the
check and the drawee bank to recover on three checks pre-
sented to the bank, upon which payment was refused. The
drawer of the check was dismissed from the action after filing
for bankruptcy. The trial court entered summary judgment for
the bank. On appeal, the Nebraska Supreme Court relied in
part on a section of Nebraska’s Uniform Commercial Code
now codified at Neb. U.C.C. § 3-408 (Reissue 2020), which
provides that a check or other draft does not of itself oper-
ate as an assignment of any funds in the hands of the drawee
available for its payment and that the drawee is not liable on
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Cite as 30 Neb. App. 335the instrument until the drawee accepts it. The Supreme Court
also iterated:
“‘[A] check, of itself, and in the absence of special cir-
cumstances, is neither a legal nor an equitable assignment
or appropriation of a corresponding amount of the draw-
er’s funds in the hands of the drawee, and that therefore,
in and of itself, it gives the holder of the check no right of
action against the drawee and no valid claim to the fund
of the drawer in its hands, even though the drawer has on
deposit sufficient funds to pay it. It creates no lien on the
money which the holder can enforce against the bank.’”
Galyen Petroleum Co. v. Hixson, 213 Neb. at 685, 331 N.W.2d
at 2-3. Finding that no special circumstances or agreements
existed in that case, the Supreme Court affirmed the entry of
summary judgment, holding that the plaintiff had no standing
or cause of action against the bank.
The facts of Galyen Petroleum Co. are distinguishable from
the present case, however, because there, the plaintiff did not
allege any “special circumstances” that would create an obli-
gation on the part of the bank to the holder of the check. In
its second amended complaint, Ogallala pled facts attempting
to show an ownership interest in the funds, as set forth more
fully below.
[5,6] As explained above, in order to state a claim for con-
version here, Ogallala was required to allege sufficient facts
that would establish that it had an ownership interest in the
funds deposited into Account 161. A deposit of funds in a bank
to the credit of the depositor ordinarily is termed a “general
deposit.” State, ex rel. Good, v. Platte Valley State Bank, 130
Neb. 222, 264 N.W. 421 (1936). In such cases, the title to the
funds deposited passes to the bank, and the relation of debtor
and creditor exists between the bank and the depositor. Id. The
presumption is that a bank deposit made in the usual course of
business is a general deposit and not a special or trust deposit.
See Glass v. Nebraska State Bank, 175 Neb. 673, 122 N.W.2d
882 (1963).
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Cite as 30 Neb. App. 335[7,8] Ogallala recognizes that if the deposits at issue here
were general deposits, title to the funds passed to Pinnacle, and
thus, it had no ownership interest in the funds, which would
defeat its conversion claim. Ogallala asserts, however, that the
deposits made into Account 161 were an exception to the gen-
eral deposit rule in that they were special deposits or deposits
for a specific purpose. The Supreme Court has articulated that
special deposits occur where the property, securities, or funds
are left with the bank for safekeeping only, and the specific
property or fund is to be returned to the depositor. State, ex rel.
Good, v. Platte Valley State Bank, supra. In such case, the bank
is a mere bailee. Id. The title to the deposit does not pass to the
bank but remains in the depositor. Id.
As the Supreme Court outlined in State, ex. rel. Good, v.
Platte Valley State Bank, with regard to special deposits, title to
the funds does not pass to the bank but remains in the depositor,
and the funds are to be returned to the depositor. A depositor
is defined as one who delivers to or leaves with a bank money
subject to his or her order, either upon time deposit or subject
to check, or, alternatively, someone who makes a deposit.
Union Life & Accident Ins. Co. v. American Surety Co., 113
Neb. 300, 203 N.W. 172 (1925); Black’s Law Dictionary 554
(11th ed. 2019). Here, Ogallala was not a depositor, having
made no deposits into Account 161; therefore, it cannot estab-
lish ownership of the funds in order to support its conversion
claim on the basis of a special deposit.
[9] With respect to deposits made for a specific purpose,
this occurs where a fund is deposited in a bank for the pur-
pose of paying a specific obligation. State, ex rel. Good, v.
Platte Valley State Bank, supra. The burden is on the claimant
to show that the deposit was received by the bank with the
express or clearly implied agreement that it should be kept
separate from the general funds of the bank and that it should
remain intact. Glass v. Nebraska State Bank, supra. In the case
of a deposit for a specific purpose, the bank acts as the agent
of the ­depositor, and if the bank should fail to apply the
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Cite as 30 Neb. App. 335deposit as directed, or should misapply it, it may be recovered
as a trust deposit. State, ex rel. Good, v. Platte Valley State
Bank, supra.
As an exception to the general rule regarding general
deposits, which allows a bank to apply a deposit made by a
customer indebted to the bank in payment of an overdraft or
other indebtedness, if the bank has knowledge of the trust
relation, it will be liable for a conversion of the fund in
case it applies it in satisfaction of its own indebtedness. See
Blanchette v. Keith Cty. Bank & Trust Co., 231 Neb. 628, 437
N.W.2d 488 (1989). In other words, a bank may not set off
funds in a depositor’s account in payment of the depositor’s
indebtedness to the bank when the bank knows or should
know that the funds being set off belong to another. Id. A bank
that appropriates a deposit made by a customer to reduce his
or her indebtedness due the bank, knowing the deposit, or a
part thereof, to be a trust fund, is liable to the true owner for
a conversion of his money, and an action at law to recover the
amount can be maintained. Bliss v. Continental Nat. Bank, 120
Neb. 568, 234 N.W. 400 (1931).
The complaint here alleges that Leonard intended the depos-
ited funds to be used specifically to provide payment to
Ogallala; that Leonard and Pinnacle intended and agreed, either
expressly or by implication, that the deposited funds were to
be used specifically to provide payment to Ogallala; and that
Pinnacle knew or should have known that the deposited funds
were to be used specifically to provide payment to Ogallala.
In other words, the complaint alleges that the deposits were
deposits for a specific purpose.
The district court’s order dismissing the operative complaint
found that despite the new facts alleged by Ogallala, the com-
plaint failed to allege any legal basis that would give Ogallala
a cause of action against Pinnacle regarding its dishonor of
the checks that Leonard wrote on Account 161. The court
observed that Nebraska law is well established that a bank
may set off funds of a depositor to pay a debt due the bank,
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Cite as 30 Neb. App. 335citing Miracle Hills Ctr. Ltd. Part. v. Nebraska Nat. Bank, 230
Neb. 899, 434 N.W.2d 304 (1989). However, as stated above,
the general rule is inapplicable when deposits are made for
a specific purpose. The district court failed to recognize this
exception.
In its brief, Pinnacle implicitly recognizes the deposit for
a specific purpose exception, stating, “Absent special instruc-
tions from a depositor or an agreement between the depositor
and the bank, a bank is not obligated to segregate deposits from
the general funds of the bank.” Brief for appellee Pinnacle at
14 (emphasis supplied). However, it argues that the factual
allegations here are too conclusory and insufficient to defeat
its motion to dismiss for failure to state a claim. It is true that
for purposes of a motion to dismiss, threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. See Central Neb. Pub. Power Dist.
v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).
A court is not obliged to accept as true a legal conclusion
couched as a factual allegation. Id. A pleader’s obligation to
provide the grounds of its entitlement to relief requires more
than labels and conclusions. Id. Nor does a pleading suffice if
it tenders naked assertion, devoid of further factual enhance-
ment. Id.However, Nebraska is a notice pleading jurisdiction. See
Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715(2018). Civil actions are controlled by a liberal pleading regime;
a party is only required to set forth a short and plain statement
of the claim showing that the pleader is entitled to relief and is
not required to plead legal theories or cite appropriate statutes
so long as the pleading gives fair notice of the claims asserted.
Id. The rationale for this liberal notice pleading standard in
civil actions is that when a party has a valid claim, he or she
should recover on it regardless of a failure to perceive the true
basis of the claim at the pleading stage. Id.In Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264(2010), overruled on other grounds, Davis v. State, 297 Neb.
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Cite as 30 Neb. App. 335955, 902 N.W.2d 165 (2017), the Supreme Court considered
revisions to the federal standard for determining whether a
complaint could survive a motion to dismiss for failure to state
a claim that the U.S. Supreme Court had recently articulated.
See, Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). After ana-
lyzing the federal revisions as well as Nebraska’s pleading
requirements, the Nebraska Supreme Court held:
[T]o prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible
on its face. In cases in which a plaintiff does not or can-
not allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausi-
ble if they suggest the existence of the element and raise a
reasonable expectation that discovery will reveal evidence
of the element or claim.
Doe v. Board of Regents, 280 Neb. at 506, 788 N.W.2d at
278. Although the allegation regarding Leonard and Pinnacle’s
agreement that the deposits were to be used to provide payment
to Ogallala is conclusory, at this stage of litigation, Ogallala
would not yet have additional details of an agreement between
two other parties or have been able to acquire the informa-
tion Pinnacle had or should have had regarding the intent of
the deposits. Thus, at this time, Ogallala cannot allege more
specific facts than it did showing a necessary element. And the
allegations that are in the second amended complaint, when
taken as true, are plausible because they suggest the existence
of an agreement between Leonard and Pinnacle and/or that
Pinnacle knew or should have known that the purpose of the
deposits was to cover the checks that Leonard had written to
Ogallala, and discovery will likely reveal additional evidence
related to these factual allegations.
Moreover, what qualifies as sufficient evidence to establish
a deposit for a specific purpose varies throughout Nebraska
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Cite as 30 Neb. App. 335case law, particularly given the standard that a bank may not
set off funds when the bank knows or should know that the
funds being set off belong to another. See Blanchette v. Keith
Cty. Bank & Trust Co., 231 Neb. 628, 437 N.W.2d 488 (1989).
For example, in Miracle Hills Ctr. Ltd. Part. v. Nebraska Nat.
Bank, 230 Neb. 899, 903, 434 N.W.2d 304, 306 (1989), the
Supreme Court upheld summary judgment in favor of the
defendant bank, finding that a deposit was a general deposit,
because the depositor “placed no limitation on the deposit and
gave no indication to the bank that the deposit was to be used
solely for payments on the [plaintiff’s] project.”
In Allen Dudley & Co. v. First Nat. Bank, 122 Neb. 443,
240 N.W. 522 (1932), however, the Supreme Court relied on a
course of conduct to determine that the defendant bank knew
or should have known that funds deposited into an account
were for a specific purpose. The court concluded that in light
of testimony that the account holder had bought and sold cattle
the same way for 2 years through the bank, it could not be said
that the defendant bank did not have knowledge of the account
holder’s manner of doing business. Thus, when two “sight
drafts” were received, the bank knew or should have known
that the deposits were drawn on the plaintiff against shipments
of cattle the account owner had made; that the account owner
had bought cattle from various parties, which the record showed
he had been in the habit of doing for a year or more; and that
there were checks outstanding, representing the purchase price
of the cattle, which were to be paid out of the proceeds of these
deposits. Id. at 448, 240 N.W.2d at 524.
In the present case, in addition to the allegations detailed
above, the complaint also alleges a course of conduct from
which it could be found that Pinnacle knew or should have
known that the deposits were for a specific purpose. The com-
plaint asserts that Leonard was a longtime Pinnacle customer
and that Pinnacle was aware that Leonard primarily used
Account 161 to operate his cattle business. Additionally, the
complaint alleges that during September and October 2015,
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Cite as 30 Neb. App. 335due to daily conversations between Leonard and agents of
Pinnacle, Pinnacle was aware of the nature of Leonard’s busi-
ness operation and knew the manner in which he conducted his
sales. The complaint asserts Pinnacle specifically knew during
that timeframe that Leonard was commissioned by third-party
cattle buyers, that funds deposited into Leonard’s account were
from those buyers, and that the checks written by Leonard from
Account 161 were for the purpose of purchasing cattle from
cattle sellers such as Ogallala.
The complaint further alleges that prior to September 29,
2015, whenever Pinnacle was presented with checks written
by Leonard and drawn on a negative account balance, Pinnacle
would communicate with Leonard to verify he was expecting
deposits in amounts sufficient to cover the checks written and
that Pinnacle permitted the manner in which Leonard utilized
Account 161. With respect to the checks written to Ogallala,
the complaint asserts that in each instance, Leonard was able
to verify for Pinnacle he was expecting deposits sufficient to
cover the checks written, and that in fact, deposits equal to
or in excess of the amounts of the checks were deposited into
Account 161. Accepting these allegations as true, we conclude
that the complaint is sufficient to state a plausible claim that
the deposits were deposits for a specific purpose, and thus,
Pinnacle, having failed to apply the funds as directed, could be
held liable for conversion.
We caution that we are not opining on the merits of this
claim or the ultimate outcome of the case. We are simply find-
ing, upon our de novo review of the record, that the allegations
in the complaint were sufficient to survive a motion to dismiss
for failure to state a claim. We therefore reverse the district
court’s order dismissing the cause of action for conversion.
Claim for Unjust Enrichment.
[10,11] In addition to the conversion claim, the complaint
also asserts a claim for unjust enrichment. To recover under
a theory of unjust enrichment, the plaintiff must allege facts
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Cite as 30 Neb. App. 335that the law of restitution would recognize as unjust enrich-
ment. City of Scottsbluff v. Waste Connections of Neb., 282
Neb. 848, 809 N.W.2d 725 (2011). Unjust enrichment is a
flexible concept. Id. But it is a bedrock principle of restitution
that unjust enrichment means a transfer of a benefit without
adequate legal ground. Id. It results from a transaction that
the law treats as ineffective to work a conclusive alteration in
ownership rights. Id.Applying those guidelines here, Ogallala must allege facts
showing that Pinnacle transferred a benefit, the deposited funds,
without a right to the funds or, stated differently, Ogallala must
allege facts that establish it, rather than Pinnacle, had a right
to the deposited funds. In order to establish a right to the
deposited funds, Ogallala was required to allege facts show-
ing that the funds were deposits for a specific purpose. As
we concluded above, it did so. We therefore conclude that the
complaint alleged sufficient facts to state a claim for unjust
enrichment, and we reverse the district court’s dismissal of
that claim.
We again caution that we express no opinion as to the ulti-
mate merits of the unjust enrichment claim. We also observe
that although we have determined that the complaint alleged
sufficient facts to state claims for conversion and unjust enrich-
ment, should Ogallala ultimately prove these claims, it would
not be entitled to recover on both of these theories. A party
may not have double recovery for a single injury, or be made
more than whole by compensation which exceeds the actual
damages sustained. deNourie & Yost Homes v. Frost, 295 Neb.
912, 893 N.W.2d 669 (2017).
Claim for Constructive Trust.
[12] Related to its unjust enrichment claim, Ogallala
requested the imposition of a constructive trust upon either the
actual cattle or the deposited funds. However, Ogallala fails
to articulate an argument in its brief on this issue; rather, it
simply states in an argument heading that “[Ogallala’s] causes
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Cite as 30 Neb. App. 335of action for unjust enrichment and for imposition of a con-
structive trust state claims upon which relief may be granted.”
Brief for appellant at 18. To be considered by an appellate
court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error. Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).
Based upon Ogallala’s failure to do so, we decline to address
the issue.
Claim for Declaratory Judgment.
The complaint alleges a final cause of action seeking a
declaratory judgment, which claim the district court also dis-
missed. Ogallala does not argue in its brief that the decision
concerning this claim was error, however, and we therefore do
not address it. See Diamond v. State, supra.
Attempted Cross-Appeal.
[13] Pinnacle attempts to raise a cross-appeal related to the
district court’s dismissal of the second amended complaint
without prejudice. At the time Pinnacle submitted its brief,
Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014) provided:
Where the brief of appellee presents a cross-appeal, it
shall be noted on the cover of the brief and it shall be set
forth in a separate division of the brief. This division shall
be headed “Brief on Cross-Appeal” and shall be prepared
in the same manner and under the same rules as the brief
of appellant.
See, also, Krejci v. Krejci, 304 Neb. 302, 306, 934 N.W.2d 179,
183 (2019) (stating “the cross-appeal section of an appellate
brief must set forth a separate title page, a table of contents, a
statement of the case, assigned errors, propositions of law, and
a statement of the facts”). But see Cornwell v. Cornwell, 309
Neb. 156, 959 N.W.2d 243 (2021) (clarifying that § 2-109(D)(4)
does not require separate title page, but, rather, requires cross-
appeal to be noted on cover of brief). When a brief of an appel-
lee fails to present a proper cross-appeal pursuant to § 2-109,
we decline to consider its merits. Krejci v. Krejci, supra.- 350 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD
Cite as 30 Neb. App. 335Here, Pinnacle’s brief does not contain a notation on the
cover of the brief that it contains a cross-appeal, nor does the
cross-appeal contain a separate title page upon which such
designation appears. Similarly, as in Krejci, the cross-appeal
section contains no table of contents for the cross-appeal. In
Krejci, the Supreme Court declined to consider the merits of
the cross-appeal as being noncompliant with our rules. For the
same reasons, we decline to address the merits of Pinnacle’s
cross-appeal.
CONCLUSION
Accepting as true all facts that are well pled and the proper
and reasonable inferences of law and fact that may be drawn
therefrom, we conclude that the second amended complaint
states a plausible claim for relief for conversion and unjust
enrichment. We therefore reverse the dismissal of these two
claims and remand the cause for further proceedings. As to the
dismissal of the claims for a constructive trust and a declara-
tory judgment, we affirm the court’s order for the reasons
stated above.
Affirmed in part, and in part reversed and
remanded for further proceedings.