United Gen. Title Ins. Co. v. Malone

Nebraska Advance Sheets
1006 289 NEBRASKA REPORTS
United General Title Insurance Company, appellant,
v. Daniel M alone et al., appellees.
___ N.W.2d ___
Filed January 30, 2015. No. S-13-1002.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered show 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.
2. Jury Instructions. Whether the jury instructions given by a trial court are correct
is a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
4. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and an appellate court will not disturb the trial
court’s decision absent an abuse of discretion.
5. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
6. Judgments: Verdicts. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and may do so only
when the facts are such that reasonable minds can draw but one conclusion.
7. Torts: Conversion: Property: Words and Phrases. Tortious conversion is any
distinct act of dominion wrongfully asserted over another’s property in denial of
or inconsistent with that person’s rights.
8. Torts: Conversion: Property: Proof. In order to maintain an action for conver-
sion, the plaintiff must establish a right to immediate possession of the property
at the time of the alleged conversion.
9. 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.
10. Contribution: Words and Phrases. Contribution is defined as a sharing of
the cost of an injury as opposed to a complete shifting of the cost from one to
another, which is indemnification.
11. Contribution: Parties: Liability. The prerequisites to a claim for contribution
are that the party seeking contribution and the party from whom it is sought share
a common liability and that the party seeking contribution has discharged more
than his fair share of the common liability.
12. Contribution: Restitution: Unjust Enrichment: Liability. Both indemnity
and contribution rest on principles of restitution and unjust enrichment. A party
has a claim for indemnification if it pays a common liability that, as between
itself and another party, is altogether the responsibility of the other party. A
claim for contribution arises when a party has paid more than its fair share
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UNITED GEN. TITLE INS. CO. v. MALONE 1007
Cite as 289 Neb. 1006
of a common liability that is allocated in some proportion between itself and
another party.
13. Liability: Damages. Generally, the party seeking indemnification must have
been free of any wrongdoing, and its liability is vicariously imposed.
14. Trusts: Property: Title: Unjust Enrichment: Equity. A constructive trust
is a relationship, with respect to property, subjecting the person who holds
title to the property to an equitable duty to convey it to another on the ground
that his or her acquisition or retention of the property would constitute unjust
enrichment.
15. Trusts: Property: Title: Equity: Proof. Regardless of the nature of the property
upon which a constructive trust is imposed, a party seeking to establish the trust
must prove by clear and convincing evidence that the individual holding the
property obtained title to it by fraud, misrepresentation, or an abuse of an influen-
tial or confidential relationship and that under the circumstances, such individual
should not, according to the rules of equity and good conscience, hold and enjoy
the property so obtained.
16. Trusts: Property. Where money is the asset upon which a trust is based, it is
necessary that the specific amounts be identified and located, either by tracing the
money to a specific and existing account, or where the funds have been converted
into another type of asset such as by the purchase of real property, the money
must be traced into the item of property.
17. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s failure to give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3) the appellant was
prejudiced by the court’s failure to give the requested instruction.
18. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse a
requested instruction if the substance of the proposed instruction is contained in
those instructions actually given.
19. ____: ____. If the instructions given, which are taken as a whole, correctly state
the law, are not misleading, and adequately cover the issues submissible to a
jury, there is no prejudicial error concerning the instructions and necessitating
a reversal.
20. Conspiracy: Words and Phrases. A civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlawful or oppressive object,
or a lawful object by unlawful or oppressive means.
21. Conspiracy: Torts. A conspiracy is not a separate and independent tort in itself,
but, rather, is dependent upon the existence of an underlying tort.
22. Conspiracy: Damages. The gist of an action for civil conspiracy is not the con-
spiracy charged, but the damages the plaintiff claims to have suffered because of
the wrongful acts of the defendants.
23. Conspiracy: Liability. By establishing a civil conspiracy, a plaintiff extends
liability for the wrongful acts underlying the conspiracy to those actors who did
not actively engage in the acts, but conspired in their commission.
24. Jury Instructions: Appeal and Error. Failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising an objection
on appeal absent plain error.
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25. Rules of the Supreme Court: Pleadings. The key inquiry of Neb. Ct. R. Pldg.
§ 6-1115(b) for “express or implied consent” to trial of an issue not presented by
the pleadings is whether the parties recognized that an issue not presented by the
pleadings entered the case at trial.
26. Pleadings. Implied consent to trial of an issue not presented by the pleadings
may arise in two situations: First, the claim may be introduced outside of the
complaint—in another pleading or document—and then treated by the opposing
party as if pleaded. Second, consent may be implied if during the trial, the party
acquiesces or fails to object to the introduction of evidence that relates only to
that issue.
27. Pleadings: Proof. Implied consent to trial of an issue not presented by the
pleadings may not be found if the opposing party did not recognize that new
matters were at issue during the trial. The pleader must demonstrate that the
opposing party understood that the evidence in question was introduced to prove
new issues.
28. Rules of the Supreme Court: Pleadings. To satisfy Neb. Ct. R. Pldg. § 6-1115(b)
and demonstrate implied consent to trial of an issue not presented by the plead-
ings, evidence to which no objection is raised must be directed solely at the
unpleaded issue, in order to provide a clear indication that the opposing party
would or should have recognized that a new issue was being injected into
the case.
29. Courts: Pleadings. A court will not imply consent to try a claim merely because
evidence relevant to a properly pleaded issue incidentally tends to establish an
unpleaded claim.
30. ____: ____. A trial court’s denial of leave to amend pleadings is appropriate only
in those limited circumstances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
31. Contracts: Equity. Absent a contractual arrangement, the right to indemnity has
its roots in equity.
32. Liability: Damages. Indemnification is available when one party is compelled to
pay money which in justice another ought to pay, or has agreed to pay, unless the
party making the payment is barred by the wrongful nature of his conduct.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Thomas M. Locher and Matthew E. Eck, of Locher, Pavelka,
Dostal, Braddy & Hammes, L.L.C., for appellant.
Robert F. Peterson and Kathleen M. Foster, of Laughlin,
Peterson & Lang, for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Nebraska Advance Sheets
UNITED GEN. TITLE INS. CO. v. MALONE 1009
Cite as 289 Neb. 1006
Cassel, J.
I. INTRODUCTION
Improper transfers were made from a title insurance agent’s
escrow account. The agent’s principal, United General Title
Insurance Company (United General), paid the loss pursuant
to a statute.1 Relying upon numerous legal theories, it sued to
recover the loss from multiple persons and entities, including
recipients of the transferred funds. Although it recovered judg-
ment against some persons and entities, summary judgment
was entered against it on various claims. After a jury trial, sev-
eral recipients successfully defended the action on the remain-
ing issues. United General appeals.
As we will explain in more detail, the district court cor-
rectly granted summary judgment on United General’s claim
for contribution but erred in doing so on its claims for con-
version and a constructive trust. At trial, the court properly
rejected a proposed jury instruction, denied amendment of
the complaint, and partially directed a verdict. After trial, it
correctly granted a motion for judgment notwithstanding the
verdict. We affirm in part, and in part reverse and remand for
further proceedings.
II. BACKGROUND
1. Parties
United General is a title insurance company authorized to
issue title insurance commitments and policies of insurance in
Nebraska. Several years before the improper transfers were dis-
covered, it entered into a “Title Insurance Agency Agreement”
with A.G. Ventures, LLC, doing business as Guardian Title
Services (Guardian). The agreement authorized Guardian to
originate and solicit applications for United General’s title insur-
ance products in Nebraska. It essentially permitted Guardian to
issue title insurance policies underwritten by United General.
As part of the agreement, Guardian was to collect premiums,
earnest deposits, and other payments from customers and hold
them in escrow for disbursement.
1
See Neb. Rev. Stat. § 44-1993(8) (Reissue 2010).
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From January to September 2008, Guardian was owned
solely by Daniel Malone. Guardian was managed by Investment
Property Resources, Ltd. (IPR), a management and brokerage
company owned by Malone and his wife. IPR managed several
other entities in which Malone had an interest. These enti-
ties included Maple Office Partners, LLC, in which Malone
had a membership interest, and Via Christe, L.L.C., of which
Malone was the managing member. In addition to these enti-
ties, IPR also managed Northwest Village 2nd Addition
Homeowners Association, Inc. (Northwest Village), and Angel
Guardians, Inc.
2. Shortage
In July 2008, a shortage was discovered in one of
Guardian’s escrow accounts. United General advised its par-
ent company of the shortage, and auditors were dispatched
to assess the situation. The auditors ultimately determined
that $588,671.80 was missing from the escrow account and
that Guardian had failed to remit premiums for title insurance
policies to United General in the amount of approximately
$22,000. United General’s parent company made immediate
arrangements to cover the shortage by transferring $588,000
from United General to Guardian. United General also termi-
nated its agency agreement with Guardian, and the Nebraska
Department of Insurance prohibited Guardian from conducting
further real estate closings.
In the investigation of the shortage, the auditors deter-
mined that frequent transfers of substantial amounts were
made between Guardian’s escrow account and its operating
account. Some of the transferred funds remained in the oper-
ating account, while subsequent transfers were made to IPR,
entities managed by IPR, or entities in which Malone had an
interest. Further transfers were made between these entities in
varying amounts. One auditor opined that the “majority of the
money transferred out was used to keep the various businesses
owned by . . . Malone functioning.” The auditor further pro-
vided, “If you remove the transfers in and out . . . from each
account none of the businesses would show a profit.”
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3. Complaint
After paying the loss, United General filed a complaint
against 16 named defendants and 3 unknown entities associ-
ated with Malone or IPR. The defendants relevant to this
appeal included:
• Malone;
• Tara Heitkamp (IPR’s primary business manager);
• Guardian;
• Via Christe;
• IPR;
• Fidelis, LLC;
• Northwest Village;
• Angel Guardians;
• Maple Office Partners; and
• M & M Property Partners.
In its complaint, United General asserted 12 causes of
action seeking to recover the unpaid premiums and the funds
it had paid out to cover the shortage. The causes of action
and their key factual allegations relevant to this appeal
included:
• Conversion—One or more of the defendants intentionally
converted United General’s property, causing it damages in
the amount of at least $22,000.
• Civil conspiracy—Guardian, Heitkamp, Malone, and the
remaining defendants acted to accomplish the unlawful tak-
ing of funds from Guardian’s escrow account and used the
funds for improper and illegal purposes.
• Common-law indemnification—One or more of the defend­
ants was obligated to indemnify United General.
• Contribution—One or more of the defendants was obligated
to contribute to the loss sustained by United General.
• Constructive trust—One or more of the defendants received
funds transferred from Guardian’s escrow account as a result
of fraud, misrepresentation, or an abuse of an influential or
confidential relationship and were unjustly enriched.
In its prayer for relief, United General requested judgment
against the defendants in the amount of at least $588,671.80.
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4. Summary Judgment
In January 2011, several of the defendants moved for sum-
mary judgment. The moving defendants included Malone, Via
Christe, Northwest Village, Angel Guardians, M & M Property
Partners, Maple Office Partners, and Fidelis.
At the summary judgment hearing, two affidavits of Ellen
Roethler, a former employee of IPR, were received into evi-
dence. In her affidavits, Roethler explained that she exam-
ined each deposit slip and bank statement for several of
the defendant entities in order to determine if they were
benefited by the unauthorized transfers of funds into and
out of their accounts. She ultimately concluded that (1) Via
Christe sustained a net loss of $14,926.36, (2) Northwest
Village was not financially impacted by the unauthorized
transfers, (3) M & M Property Partners received net deposits
of $241,046.66, (4) Angel Guardians received net deposits of
$12,500, and (5) Maple Office Partners received net deposits
of $2,500.
The district court also received two affidavits of Malone.
Malone averred that M & M Property Partners was a partner-
ship between himself and another individual that terminated in
2002. One of the partnership’s bank accounts was not closed
and remained dormant for several years. In 2006, Malone
began to use the bank account for his personal use. Malone fur-
ther provided that he had authorized deposits into the account
in the amount of $230,500 to receive the proceeds from the
sale of his interest in Via Christe. However, he acknowledged
that the remaining transactions noted by Roethler involving
M & M Property Partners were unauthorized. Finally, he
claimed that he had filed for personal bankruptcy in July 2010
and that his debts were discharged in October.
As to Guardian’s escrow account, Malone explained that
“Guardian was required to keep escrow deposits received from
customers, especially from prospective home buyers, in an
escrow account, and some of these funds were subsequently to
be paid to United General as insurance premium costs, when
the transaction was completed.”
The district court entered an order in August 2011 disposing
of the motions for summary judgment. The court first entered
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summary judgment on United General’s claim for conversion.
The court observed that “United General was never entrusted
with the escrowed funds and never possessed the escrowed
funds, nor did United General ever have the right to uncondi-
tionally and immediately repossess any of the escrowed funds.”
The court determined that without an immediate right to pos-
sess the escrowed funds, United General’s conversion claim
must fail.
The district court also granted the moving defendants sum-
mary judgment on United General’s claims for contribution and
a constructive trust. The court observed that a claim for contri-
bution requires a mutual liability or a jointly committed wrong.
While genuine issues of material fact existed as to whether the
moving defendants were liable for conversion, United General
was statutorily liable for the loss. Thus, no jointly committed
wrong existed between United General and the defendants. As
to a constructive trust, the court concluded that United General
“had no ownership interest, equitable or otherwise, in the
$588,671.80 of escrowed funds.” And although United General
could claim an interest in the $22,000 of unpaid premiums, the
unpaid premiums could not be traced to any specific defendant
or account.
But the district court determined that summary judgment
was inappropriate on United General’s claims of civil conspir-
acy and indemnification. Consequently, it ordered that a jury
trial be conducted on those claims.
5. Trial
At trial, a representative from United General’s parent com-
pany testified as to the real estate closing process and the
handling of premiums for title insurance products. In almost
every closing involving Guardian, a party was issued a United
General title insurance policy. At closing, Guardian would
write itself a check from its escrow account to its operating
account to reflect that it had earned payment. A portion of
that payment would be for the title insurance policy premium.
The agency agreement between United General and Guardian
provided that Guardian was entitled to 80 percent of the pre-
mium and United General was entitled to 20 percent. The
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representative testified that in the course of the investigation
of the shortage in Guardian’s escrow account, it was discov-
ered that Guardian had performed 309 closings for which it
had failed to send United General its portion of the policy
premium, amounting to $28,000.
A certified public accountant testified that he reviewed
the bank statements and check registers for several of the
defendant entities, as well as various affidavits and reports.
The accountant indicated that the first transfer of funds from
Guardian’s escrow account to the defendant entities was
made on April 1, 2007. The accountant testified that M & M
Property Partners received $65,100 from the escrow account,
IPR received $101,570, Via Christe received $247,600, Maple
Office Partners received $18,800, Northwest Village received
$5,700, Angel Guardians received $8,000, and Malone received
$13,000. The accountant testified that in all, $561,500 was
transferred from Guardian’s escrow account.
Malone testified that the shortage in the escrow account
came to his attention near the end of July 2008. On a Friday
morning, he received a call from a bank that a check for
$500,000 had been returned by another bank. The amount of
the check “took [Malone’s] breath away,” because a check that
large would be associated only with a closing. Malone called
Heitkamp and told her to meet him at the bank.
At the bank, Malone and Heitkamp met with several bank
representatives. According to Malone, Heitkamp explained that
she had written the returned check in order to deposit money
in the escrow account and accrue interest. But Malone testi-
fied that the situation was “very unusual” because he did not
“tell [Heitkamp] to get creative and move money around.”
Heitkamp claimed that the initial presentation of the check
for payment, its return, and its subsequent re-presentation had
created a “backlog in the Federal Reserve system” that would
clear itself in the next few days.
A waiting period of 3 or 4 days began in order to see if the
deposits would clear and if the shortfall would be corrected.
On the following Friday, Heitkamp came into Malone’s office
and told him that she had received the bank statement for the
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escrow account and would balance the account over the week-
end. However, Malone testified that he never saw Heitkamp
again except during a deposition and at trial.
Malone alerted United General to the shortage, and audi-
tors were sent to investigate. Malone testified that the bank
statements for the entities managed by IPR revealed “all types
of activity that was certainly not customary nor authorized.”
Malone explained that the activity consisted of 25 to 30 checks
in large amounts going into and out of the entities’ accounts
every month. He described the activity as “[m]illions of dollars
being washed around these accounts.”
Malone testified that the checks going into and out of
the entities’ accounts were stamped with his signature by a
stamp that he had given to Heitkamp “[s]trictly to execute
customary and published and announced checks that we’d
had every month.” Malone testified that although Heitkamp
was not authorized to make withdrawals from Guardian’s
escrow accounts, he had such authorization. He further pro-
vided that there were multiple online transfers originating from
Heitkamp’s desk.
According to Malone, the unauthorized transfers did not
appear on anything he ever saw. And he testified that he never
observed anything on the entities’ tax returns that alerted him
to any issues. Malone opined that Heitkamp was making the
unauthorized transfers without recording them or was main-
taining a separate set of books. He testified that he was never
able to determine the ultimate destination of the funds trans-
ferred from Guardian’s escrow account.
And Malone explained that the shortage in the escrow
account ultimately caused him to claim personal bankruptcy
and close his real estate business. He explained that IPR sold
its assets to Fidelis, a Nebraska real estate company started
by Malone’s son and owned by Malone’s daughter and her
husband at the time of trial. Fidelis purchased IPR’s assets in
an “Asset Purchase Agreement” for $5,500. The agreement
had an effective date of September 1, 2008, and provided that
Fidelis did not assume any of IPR’s liabilities. Malone testi-
fied that IPR closed its business at “year-end December of
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2008.” He further indicated that Fidelis was not in existence
when the unauthorized transfers were made from Guardian’s
escrow account.
The district court also received testimony from several indi-
viduals with interests in the entities managed by IPR. A devel-
oper who was a property owner in Northwest Village testified
that prior to the present litigation, he had no knowledge of any
issues regarding the association’s bank account. He explained
that during the period of time that the association was man-
aged by IPR, the association’s bank statements were received
by IPR. The developer also indicated that he had an interest
in Via Christe and that Via Christe’s bank statements were
received by IPR. He confirmed that he had no knowledge of
Via Christe’s taking or using any funds that it had not gener-
ated or borrowed.
An owner of Maple Office Partners similarly testified that
prior to August 2008, he had no knowledge of the funds
going into and out of Maple Office Partners’ bank account.
He explained that he received monthly reports from IPR, but
that the reports did not give any indication of unauthorized
funds. And he confirmed that the reports did not include Maple
Office Partners’ bank statements.
Finally, Roethler testified and restated much of the analysis
contained within her affidavits. However, she indicated that her
earlier analysis of Via Christe erroneously identified a $15,000
disbursement as being unauthorized. Thus, she testified that the
net effect of the unauthorized transactions on Via Christe was
“pretty close to zero.”
At the close of all the evidence, Fidelis asserted that the
claims against it should be dismissed because it was not in exis-
tence when the funds were transferred from Guardian’s escrow
account. In response, United General made an oral motion to
amend the complaint to add a claim of successor liability, argu-
ing that Fidelis was a continuation of IPR. The district court
overruled United General’s motion to amend and stated that
it was dismissing Fidelis. It explained that it believed Fidelis
would have likely presented a different defense or offered
additional evidence had the complaint made an allegation of
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successor liability. The court subsequently entered a directed
verdict in Fidelis’ favor.
United General timely requested a proposed jury instruction
that the district court rejected. The instruction addressed a par-
ty’s liability for a claim of civil conspiracy and provided: “‘As
a general rule, one who counsels, commands, directs, advises,
assists or aids and abets another individual in commission of a
wrongful act or tort is responsible to the injured party for the
entire loss or damage.’” The court observed that the instruction
was a correct statement of the law, but it determined that the
instruction was not warranted.
After the jury instructions were settled, the court submit-
ted United General’s remaining claims to the jury. On United
General’s civil conspiracy claim, the jury returned verdicts
in favor of Maple Office Partners, Via Christe, Northwest
Village, and Angel Guardians, but it returned verdicts against
M & M Property Partners and Heitkamp. On United General’s
claim for indemnification, the jury returned verdicts against
Maple Office Partners, Via Christe, Northwest Village, M & M
Property Partners, Angel Guardians, and Heitkamp.
6. Posttrial Motion
After the trial, several of the defendants moved for “Judgment
on Common-law Indemnification.” The moving defendants
included Maple Office Partners, Via Christe, Northwest Village,
Angel Guardians, and M & M Property Partners. The district
court characterized the motion as a motion for judgment not-
withstanding the verdict and entered judgment in favor of
Maple Office Partners, Via Christe, Northwest Village, and
Angel Guardians on United General’s indemnification claim.
The court observed that by returning verdicts in favor of these
defendants on the civil conspiracy claim, the jury had found
them to be without fault for the embezzlement from Guardian’s
escrow account. It therefore determined that there was no basis
to grant indemnification.
7. Appeals
United General filed a timely notice of appeal, and the case
was assigned to the docket of the Nebraska Court of Appeals.
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However, the Court of Appeals dismissed the case for lack of
jurisdiction for failure to dispose of all the claims of all the
parties. After obtaining an “Omnibus Order” providing for
missing orders, United General filed a second timely notice
of appeal. But the Court of Appeals again dismissed for lack
of jurisdiction. The district court entered an order certifying
a final order pursuant to Neb. Rev. Stat. § 25-1315 (Reissue
2008), and United General filed a third timely notice of
appeal. We moved the case to our docket pursuant to statu-
tory authority.2
III. ASSIGNMENTS OF ERROR
As to the entry of summary judgment, United General
assigns that the district court erred in concluding that it could
not maintain actions for conversion, contribution, or a con-
structive trust against the moving defendants.
With respect to the trial, United General assigns that the
district court erred in (1) refusing to give its requested jury
instruction regarding liability for civil conspiracy, (2) denying
its motion to amend the complaint and entering a directed ver-
dict in Fidelis’ favor, and (3) granting judgment notwithstand-
ing the verdict on its claim for indemnification.
IV. STANDARD OF REVIEW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered show 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.3
[2,3] Whether the jury instructions given by a trial court are
correct is a question of law.4 When reviewing questions of law,
an appellate court has an obligation to resolve the questions
independently of the conclusion reached by the trial court.5
2
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3
Roos v. KFS BD, Inc., 280 Neb. 930, 799 N.W.2d 43 (2010).
4
Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008).
5
Id.
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[4] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and an appellate court will not disturb
the trial court’s decision absent an abuse of discretion.6
[5] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.7
[6] To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion.8
V. ANALYSIS
We first address United General’s assignments of error
regarding the entry of summary judgment. We then turn to the
errors that it asserts occurred at trial.
1. Summary Judgment
(a) Conversion
United General claims that the district court erred in
concluding that it could not maintain an action for conver-
sion against the moving defendants. It argues that genuine
issues of material fact existed as to all of the elements of
conversion.
However, we constrain our analysis to the element upon
which the district court granted summary judgment—whether
United General had a right to immediate possession of the
escrowed funds when the funds were embezzled from the
escrow account. And we further limit our review to the evi-
dence received at the summary judgment hearing.
[7,8] We have defined tortious conversion as any distinct
act of dominion wrongfully asserted over another’s prop-
erty in denial of or inconsistent with that person’s rights.9
6
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
7
Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526, 828
N.W.2d 147 (2013).
8
Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
9
See Baye v. Airlite Plastics Co., 260 Neb. 385, 618 N.W.2d 145 (2000).
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And our case law makes clear that in order to maintain
an action for ­conversion, the plaintiff must establish a right
to immediate possession of the property at the time of the
alleged conversion.10
We agree with the district court that United General had
no right to immediate possession of the escrowed funds com-
prising the deposits of Guardian’s customers. United General
had no interest in these funds and was never entrusted with
their possession. Malone’s affidavit provided that the escrow
deposits were “deposits received from customers, especially
from prospective home buyers.” And the agency agreement
between United General and Guardian prohibited Guardian
from “[r]eceiv[ing] any funds, including escrow or closing
funds, in the name of [United General]; any such funds shall
be received by [Guardian] in its own name and for its own
account . . . .” Thus, to the extent that the escrowed funds
belonged to Guardian’s customers, the court was correct in
granting summary judgment.
[9] However, viewed in the light most favorable to United
General, the evidence established genuine issues of mate-
rial fact. 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.11
First, a factual issue existed as to whether some portion of
the escrowed funds comprised the unpaid premiums owed to
United General. In their affidavits, Roethler and Malone indi-
cated that Guardian held funds from premiums in its escrow
accounts. And the representative from United General’s parent
company averred that Guardian was responsible for keeping
and holding insurance premiums in escrow. Further, the letter
from the auditor provided that unpaid premiums were missing
from Guardian’s escrow account.
10
See, e.g., id.; Zimmerman v. FirsTier Bank, 255 Neb. 410, 585 N.W.2d 445
(1998); Prososki v. Commercial Nat. Bank, 219 Neb. 607, 365 N.W.2d 427
(1985).
11
Shada v. Farmers Ins. Exch., 286 Neb. 444, 840 N.W.2d 856 (2013).
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Another genuine issue of material fact existed as to whether
any of the funds transferred from Guardian’s escrow account
included the unpaid premiums owed to United General. Viewed
in the light most favorable to United General, the evidence
regarding the transferred funds was sufficient to support an
inference that some or all of the respective transfers included
unpaid premiums.
And it is clear that United General had an immediate right to
possess the unpaid premiums which it was owed. The agency
agreement provided that immediately upon the receipt of pre-
miums for title insurance products, United General’s portion of
the premium was its sole and separate property to be held by
Guardian in trust for United General’s benefit. As a matter of
law, this interest in the unpaid premiums was sufficient to pre-
vent summary judgment against United General. The district
court therefore erred in granting summary judgment on United
General’s conversion claim.
(b) Contribution
United General contends that the district court erred in grant-
ing summary judgment on its claim for contribution, because
both it and the moving defendants were potentially liable to
Guardian’s customers for the shortage in the escrow account. It
argues that it shared a common liability with the defendants for
which it was entitled to seek contribution at trial.
[10,11] Contribution is defined as a sharing of the cost of an
injury as opposed to a complete shifting of the cost from one
to another, which is indemnification.12 “‘The prerequisites to a
claim for contribution are that the party seeking contribution
and the party from whom it is sought share a common liability
and that the party seeking contribution has discharged more
than his fair share of the common liability.’”13
The district court determined that United General could not
seek contribution from the moving defendants, because it and
the moving defendants did not jointly convert the escrowed
funds. As we have already observed, genuine issues of material
12
Estate of Powell v. Montange, 277 Neb. 846, 765 N.W.2d 496 (2009).
13
Id. at 849-50, 765 N.W.2d at 500, citing 18 C.J.S. Contribution § 5 (1990).
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fact existed as to whether the moving defendants were liable
to Guardian’s customers for conversion. But United General
was liable to Guardian’s customers solely pursuant to a statu-
tory mandate.14 It could not be liable for conversion, because
the transfers of the escrowed funds were outside the scope of
Guardian’s authority under the agency agreement. Thus, the
court reasoned that without a jointly committed wrong, there
was no common liability to support United General’s claim
for contribution.
Although we ultimately agree that United General could not
seek contribution, we disagree with its reasoning. At the sum-
mary judgment stage, United General established a potential
common liability between itself and the moving defendants—
each was potentially liable for the shortage in Guardian’s
escrow account. And this potential liability was owed to the
same persons, Guardian’s customers. United General’s liabil-
ity was imposed by statute, while the moving defendants
were potentially liable to Guardian’s customers for a con-
version of their escrowed funds. Thus, both United General
and the moving defendants were at least potentially liable to
the same persons for the same wrong. In that sense, it was
a common liability. Further, by covering the shortage in the
escrow account, United General extinguished any liability of
the moving defend­ants to Guardian’s customers. However, this
common liability adduced at the summary judgment stage sup-
ported a claim for indemnification, not contribution.
[12] According to the Restatement (Third) of Restitution and
Unjust Enrichment, both indemnity and contribution rest on
principles of restitution and unjust enrichment.15 A party has a
claim for indemnification if it pays a common liability that, as
between itself and another party, is altogether the responsibility
of the other party.16 In contrast, a claim for contribution arises
when a party has paid more than its fair share of a common
14
See § 44-1993(8).
15
See Restatement (Third) of Restitution and Unjust Enrichment § 23,
comment a. (2011).
16
See id.
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liability that is allocated in some proportion between itself and
another party.17
[13] Our case law reflects this distinction. As noted above,
we have defined contribution as the sharing of the cost of an
injury as opposed to the complete shifting of the cost from one
to another, which is indemnification.18 And we have stated that
generally, the party seeking indemnification must have been
free of any wrongdoing, and that its liability is vicariously
imposed.19
In Warner v. Reagan Buick,20 we determined that the defend­
ant’s third-party complaint was for indemnification, although
the complaint made no mention of “indemnity.” In that case,
the purchaser of a used automobile filed suit to recover dam-
ages from the dealer-seller. The dealer-seller filed a third-party
action against the seller from which it had purchased the auto-
mobile, alleging that its liability should be imposed against the
third party. We concluded that the complaint was for indemni-
fication because the dealer-seller sought full satisfaction from
the third party for any amounts it was required to pay.
Here, too, United General sought a full shifting of its
liability for the shortage to the moving defendants. United
General’s liability did not arise from any fault of its own, but
was imposed constructively by statute. United General and the
defendants could not share in the loss, because United General
had not committed any wrongdoing. There was no basis on
which to allocate responsibility for the loss between it and the
defendants. Consequently, United General’s claim for restitu-
tion was not for contribution, but indemnification. And United
General separately stated a claim for indemnification, which
was ultimately determined after a jury trial. For that reason,
this assignment of error lacks merit.
17
See id.
18
See, e.g., Downey v. Western Comm. College Area, 282 Neb. 970, 808
N.W.2d 839 (2012); Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771
N.W.2d 103 (2009); Estate of Powell, supra note 12.
19
See Downey, supra note 18.
20
Warner v. Reagan Buick, 240 Neb. 668, 483 N.W.2d 764 (1992).
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(c) Constructive Trust
United General contends that it was entitled to a construc-
tive trust because the moving defendants received unauthorized
transfers from Guardian’s escrow account for which it was
liable by statute. It further argues that it should have been per-
mitted to present evidence at trial tracing the unpaid premiums
to the defendants’ possession.
[14,15] We have defined a constructive trust as a relation-
ship, with respect to property, subjecting the person who holds
title to the property to an equitable duty to convey it to another
on the ground that his or her acquisition or retention of the
property would constitute unjust enrichment.21 Regardless of
the nature of the property upon which the constructive trust
is imposed, a party seeking to establish the trust must prove
by clear and convincing evidence that the individual holding
the property obtained title to it by fraud, misrepresentation, or
an abuse of an influential or confidential relationship and that
under the circumstances, such individual should not, according
to the rules of equity and good conscience, hold and enjoy the
property so obtained.22
The district court concluded that a constructive trust was
inappropriate because United General had no interest, equitable
or otherwise, in the escrowed funds belonging to Guardian’s
customers. And as to unpaid premiums, the court determined
that it was impossible to identify any unpaid premiums in the
defendants’ possession.
We agree that United General could not seek a constructive
trust as to the escrowed funds belonging to Guardian’s custom-
ers. The Restatement provides that a constructive trust may
arise if the defendant is “unjustly enriched by the acquisition
of title to identifiable property at the expense of the claimant
or in violation of the claimant’s rights.”23 As discussed above,
United General had no interest in any portion of the escrowed
funds comprising the deposits of Guardian’s customers. The
21
See Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007).
22
Id.
23
Restatement, supra note 15, § 55 at 296.
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unauthorized transfers of these deposits were at the expense of
Guardian’s customers and in violation of their rights, not the
rights of United General.
In contrast, any unauthorized transfers of the unpaid pre-
miums were at United General’s expense and in violation of
its rights. And genuine issues of material fact existed as to
whether the defendants received the unauthorized transfers as
a result of fraud, misrepresentation, or an abuse of an influ-
ential or confidential relationship. The district court deter-
mined that it was impossible to trace the unpaid premiums
to a specific defendant or account. But we see no basis for
this conclusion.
[16] We have explained that where money is the asset
upon which the trust is based, it is necessary that the specific
amounts be identified and located, either by tracing the money
to a specific and existing account, or where the funds have
been converted into another type of asset such as by the pur-
chase of real property, the money must be traced into the item
of property.24 There was no evidence establishing that it was
impossible to trace the unpaid premiums to a specific defend­
ant or account. We recognize that the court received evidence
of numerous transactions involving Guardian’s escrow account
and the accounts of the defendant entities. But when viewed
in the light most favorable to United General, this evidence
was insufficient to establish that tracing the unpaid premiums
was impossible. Thus, we conclude that with regard to United
General’s claim for unpaid premiums, the court erred in pre-
venting it from seeking a constructive trust at trial.
2. Trial
(a) Proposed Jury Instruction
United General contends that the district court commit-
ted reversible error in rejecting its proposed jury instruction
as to liability for civil conspiracy. As noted above, United
General requested an instruction that a conspirator is liable for
the entire loss or damage caused by the wrongful act or tort
24
See Chalupa v. Chalupa, 254 Neb. 59, 574 N.W.2d 509 (1998).
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forming the basis of the conspiracy. United General further
asserts that the court’s jury instructions misstated the burden
of proof.
[17-19] To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.25 However, it is not
error for a trial court to refuse a requested instruction if the
substance of the proposed instruction is contained in those
instructions actually given.26 If the instructions given, which
are taken as a whole, correctly state the law, are not mislead-
ing, and adequately cover the issues submissible to a jury, there
is no prejudicial error concerning the instructions and neces-
sitating a reversal.27
[20,21] We have defined a civil conspiracy as a combination
of two or more persons to accomplish by concerted action an
unlawful or oppressive object, or a lawful object by unlawful
or oppressive means.28 A “conspiracy” is not a separate and
independent tort in itself, but, rather, is dependent upon the
existence of an underlying tort.29 Without such underlying tort,
there can be no claim for relief for a conspiracy to commit
the tort.30
[22,23] Additionally, the gist of an action for civil con-
spiracy is not the conspiracy charged, but the damages the
plaintiff claims to have suffered because of the wrongful acts
of the defendants.31 Thus, by establishing a civil conspiracy,
25
InterCall, Inc., supra note 6.
26
State on behalf of Joseph F. v. Rial, 251 Neb. 1, 554 N.W.2d 769 (1996).
27
InterCall, Inc., supra note 6.
28
See Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d
792 (2005).
29
See Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009).
30
Id.
31
Treptow Co. v. Duncan Aviation, Inc., 210 Neb. 72, 313 N.W.2d 224
(1981).
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a plaintiff extends liability for the wrongful acts underlying
the conspiracy to those actors who did not actively engage
in the acts, but conspired in their commission.32 A con-
spirator is liable for the injuries sustained by the plaintiff
as a result of the tortious conduct which forms the basis of
the conspiracy.33
United General’s proposed instruction was a correct state-
ment of the law as to a conspirator’s liability. However, the
instructions given to the jury contained the substance of the
proposed instruction. The jury was instructed that a claim of
civil conspiracy serves “to impose vicarious liability for under-
lying wrongs of those who are party to conspiracy.” And it was
further instructed that “conspirators who have not acted but
have promoted the act will be held liable.” Thus, the instruc-
tions given by the district court correctly stated a conspirator’s
liability for the loss caused by the underlying wrongful act or
tort. Because the instructions actually given, read as a whole,
adequately addressed the matter, the court did not err in reject-
ing the proposed instruction.
[24] As to United General’s assertion regarding the burden
of proof, it contends that the instructions given to the jury
could have been interpreted as requiring all of the defendants
to have committed the wrongful act forming the basis of the
conspiracy. However, United General failed to make an appro-
priate objection before the district court. Failure to object to
a jury instruction after it has been submitted to counsel for
review precludes raising an objection on appeal absent plain
error.34 Further, the instruction given to the jury on the bur-
den of proof accurately stated United General’s burden. The
instruction provided that United General was required to prove
that at least one of the defendants committed an actionable
wrong and that one or more of the defendants conspired in its
commission. This was a correct statement of the law. United
General’s assertion is without merit.
32
See 15A C.J.S. Conspiracy § 8 (2012).
33
See id.
34
Tolliver v. Visiting Nurse Assn., 278 Neb. 532, 771 N.W.2d 908 (2009).
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(b) Motion to Amend and
Directed Verdict
United General contends that the district court erred in
overruling its motion to amend the complaint and in directing
a verdict in Fidelis’ favor. It argues that Fidelis gave implied
consent to the determination of successor liability at trial by
failing to object to the admission of relevant evidence.
The amendment of a pleading is governed by Neb. Ct. R.
Pldg. § 6-1115. Section 6-1115(b) provides that when issues
not raised by the pleadings have been tried by the express
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even
after judgment.35
[25] We have previously set forth the inquiry for whether an
unpleaded issue was tried by the consent of the parties.36 The
key inquiry of § 6-1115(b) for “express or implied consent”
to trial of an issue not presented by the pleadings is whether
the parties recognized that an issue not presented by the
pleadings entered the case at trial.37 United General does not
allege that Fidelis gave express consent to the determination
of successor liability. Consequently, we limit our analysis to
implied consent.
[26-28] We have observed that implied consent may arise in
two situations:
“First, the claim may be introduced outside of the com-
plaint—in another pleading or document—and then treated
by the opposing party as if pleaded. Second, consent may
be implied if during the trial the party acquiesces or fails
to object to the introduction of evidence that relates only
to that issue.
35
See § 6-1115(b).
36
See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708
N.W.2d 235 (2006).
37
See id.
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“Implied consent may not be found if the opposing
party did not recognize that new matters were at issue
during the trial. The pleader must demonstrate that the
opposing party understood that the evidence in question
was introduced to prove new issues.”38
To satisfy § 6-1115(b), evidence to which no objection is
raised must be directed solely at the unpleaded issue, in order
to provide a clear indication that the opposing party would or
should have recognized that a new issue was being injected
into the case.39
As to specific evidence of successor liability introduced at
trial, United General points to Malone’s testimony concerning
his interests in IPR and Fidelis, the formation of Fidelis, and
Fidelis’ relation to IPR. It further points to the asset purchase
agreement between IPR and Fidelis.
But the evidence cited by United General was not directed
solely at the issue of successor liability. Malone’s testimony as
to his interests in IPR and Fidelis and Fidelis’ relation to IPR
was relevant to establish the extent of Malone’s involvement
in both entities. And the asset purchase agreement was simi-
larly relevant to the issue of Malone’s involvement in Fidelis.
Because Malone was at the heart of the embezzlement from
Guardian’s escrow account, this evidence was relevant to both
the civil conspiracy and indemnification claims.
[29] We acknowledge that some aspects of Malone’s testi-
mony and the asset purchase agreement touched upon the issue
of successor liability. But the evidence was also relevant to the
issues raised in United General’s complaint. It was not of such
a nature as to put Fidelis on notice that an issue not presented
by the pleadings had been injected into the case at trial. We
therefore reject United General’s assertion that Fidelis gave
implied consent to the determination of successor liability. A
court will not imply consent to try a claim merely because
38
Id. at 817, 708 N.W.2d at 244 (emphasis omitted), quoting 3 James Wm.
Moore et al., Moore’s Federal Practice § 15.18[1] (3d ed. 2005).
39
See id.
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evidence relevant to a properly pleaded issue incidentally tends
to establish an unpleaded claim.40
[30] And because successor liability was not tried by the
express or implied consent of the parties, we find no abuse
of discretion in the overruling of United General’s motion to
amend the complaint. Our case law provides that a trial court’s
denial of leave to amend pleadings is appropriate only in those
limited circumstances in which undue delay, bad faith on the
part of the moving party, futility of the amendment, or unfair
prejudice to the nonmoving party can be demonstrated.41 But
United General did not move to amend the complaint until
after the close of all the evidence. And Fidelis argued that
it would have presented additional evidence had a claim of
successor liability been raised in the pleadings. We therefore
conclude that Fidelis successfully established that it would
have been unfairly prejudiced by the insertion of a new claim,
without the opportunity to present relevant evidence.
We similarly find no error in the entry of a directed verdict
in Fidelis’ favor. The uncontroverted evidence established that
Fidelis was not in existence at the time of the transfers from
Guardian’s escrow account. Fidelis could not have participated
in the transfers, and it could not have received any of the
escrowed funds. Thus, no basis existed for United General’s
claims against Fidelis.
(c) Judgment Notwithstanding
Verdict
United General contends that the district court erred in
granting judgment notwithstanding the verdict on its claim for
indemnification. It claims that under Nebraska law, a party
may assert indemnification as an independent claim. And it
argues that the district court failed to apply indemnification
as an independent claim by requiring that the defendants
have some degree of fault for the shortage in Guardian’s
escrow account.
40
Id.
41
See Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424
(2011).
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[31,32] United General correctly recognizes that indem-
nification may be asserted as an independent claim under
Nebraska law. Absent a contractual arrangement, the right
to indemnity has its roots in equity.42 Under Nebraska law,
indemnification is available when one party is compelled to
pay money which in justice another ought to pay, or has agreed
to pay, unless the party making the payment is barred by the
wrongful nature of his conduct.43
We find no merit to United General’s assertion that the
district court failed to apply indemnification as an indepen-
dent claim. Rather, in granting judgment notwithstanding
the verdict, the court concluded that United General could
not obtain indemnification from Maple Office Partners, Via
Christe, Northwest Village, and Angel Guardians. The jury
found that these defendants did not conspire in the embez-
zlement from Guardian’s escrow account. Thus, the court
determined that they were without fault for the injury to
Guardian’s customers.
We agree that the absence of fault was fatal to United
General’s indemnification claim against the above four
defend­ants. Because these defendants were found to be with-
out fault for the embezzlement, they were not liable to
Guardian’s customers for the conversion of the escrowed
funds. Any liability to Guardian’s customers existed solely in
restitution, to the extent that they used or possessed any of
the escrowed funds.
Consequently, United General was not entitled to seek
indemnification from the four defendants. We have explained
that one who is “secondarily,” “technically,” “constructively,”
or “vicariously” liable may seek indemnification from an active
wrongdoer.44 Although United General was constructively lia-
ble for the missing escrowed funds pursuant to a statute,45
42
See, Warner, supra note 20; City of Wood River v. Geer-Melkus Constr.
Co., 233 Neb. 179, 444 N.W.2d 305 (1989).
43
Warner, supra note 20.
44
See Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 232 Neb.
763, 443 N.W.2d 872 (1989).
45
See § 44-1993(8).
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its liability was not premised upon the active wrongdoing or
primary liability of the four defendants. They did not commit
any act or breach of duty causing injury to Guardian’s custom-
ers and giving rise to United General’s liability. Thus, by cov-
ering the shortage in the escrow account, United General did
not discharge a debt that should have been paid wholly by the
four defendants.46
We recognize that the four defendants received a benefit
from United General’s payment of the shortage in the escrow
account and that they may have been unjustly enriched. As
noted above, the four defendants were subject to liability to
Guardian’s customers for restitution of any escrowed funds
that they used or had in their possession. And by covering
the shortage, United General fulfilled this obligation and
extinguished the defendants’ potential liability. But United
General did not pursue a claim of equitable subrogation,
and we decline to comment on the merits of such a claim on
appeal. It sought indemnification, which it was not entitled to
obtain from the four defendants. This assignment of error is
without merit.
VI. CONCLUSION
We find no merit to the errors that United General asserts
occurred at trial. And we agree with the district court’s disposi-
tion of the motion for summary judgment, with the exception
of United General’s claims for conversion and a constructive
trust. United General had an immediate right to possession
of the unpaid premiums, and no evidence was received at the
summary judgment hearing establishing that the unpaid pre-
miums could not be traced to a specific defendant or account.
We therefore affirm in part, and in part reverse and remand for
further proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.
46
See Downey, supra note 18.