Abante, LLC v. Premier Fighter

Decisions of the Nebraska Court of Appeals
ABANTE, LLC v. PREMIER FIGHTER 53
Cite as 21 Neb. App. 53discretion by the sentencing court. This assertion of error
is meritless.
V. CONCLUSION
We find no merit to Newman’s assertions of error. The dis-
trict court did not err in denying his motions to suppress or his
motion for discharge. There was sufficient evidence to sustain
the convictions. The sentences imposed were not excessive.
As such, we affirm.
Affirmed.
Abante, LLC, doing business as Abante Marketing
and A bante Holdings, LLC, appellant, v. P remier
Fighter, L.L.C., et al., appellees.
___ N.W.2d ___
Filed July 23, 2013. No. A-12-600.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or 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. ____: ____. 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.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdic-
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
5. Actions: Proof. In order to maintain an action for money had and received, a
plaintiff must show that (1) the defendant received money, (2) the defendant
retained possession of the money, and (3) the defendant in justice and fairness
ought to pay the money to the plaintiff.
6. Actions: Words and Phrases. An action for money had and received falls under
the common-law class of assumpsit and is an action at law.
7. Actions: Contracts: Equity: Restitution: Unjust Enrichment. An action in
assumpsit for money had and received may be brought where a party has received
money that in equity and good conscience should be repaid to another. In such a
Decisions of the Nebraska Court of Appeals
54 21 NEBRASKA APPELLATE REPORTS
circumstance, the law implies a promise on the part of the person who received
the money to reimburse the payor in order to prevent unjust enrichment.
8. Unjust Enrichment: Words and Phrases. Unjust enrichment has been defined
to mean a transfer of a benefit without adequate legal ground.
9. Unjust Enrichment: Contracts. One who is free from fault cannot be held to be
unjustly enriched merely because one has chosen to exercise a legal or contrac-
tual right.
10. Claims: Restitution: Notice. A payee without notice who accepts funds from a
third party in satisfaction of a valid claim as a creditor of another person takes
free of the third party’s restitution claim to which it would otherwise be subject.
11. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
12. Summary Judgment: Evidence: Proof. After the movant for summary judg-
ment makes a prima facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law shifts to the party opposing
the motion.
Appeal from the District Court for Sarpy County: David K.
Arterburn, Judge. Affirmed.
John C. Fowles, of Fowles Law Office, P.C., L.L.O., for
appellant.
Steven M. Delaney, of Reagan, Melton & Delaney, L.L.P.,
for appellee MMAStop, Inc.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Moore, Judge.
Abante, LLC, doing business as Abante Marketing and
Abante Holdings, LLC, appeals from an order of the district
court for Sarpy County, Nebraska, that entered summary judg-
ment in favor of MMAStop, Inc., one of the appellees. Abante
challenges MMAStop’s entitlement to retain certain funds paid
to it by Abante based upon fraudulent representations from
Matthew H. Anselmo. We find that because MMAStop did not
have knowledge of Anselmo’s fraud, acted in good faith as an
innocent party, and had a valid legal basis to retain the funds it
received, the district court correctly entered summary judgment
in its favor.
Decisions of the Nebraska Court of Appeals
ABANTE, LLC v. PREMIER FIGHTER 55
Cite as 21 Neb. App. 53FACTUAL BACKGROUND
This case appears before us for a second time. In its first
appearance, we dismissed Abante’s appeal for lack of jurisdic-
tion because the initial order granting summary judgment on
behalf of MMAStop did not dispose of all of the claims against
all of the parties and did not make an express determination
and direction as required under Neb. Rev. Stat. § 25-1315(Reissue 2008). See Abante, LLC v. Premier Fighter, 19 Neb.
App. 730, 814 N.W.2d 109 (2012). Subsequently, the district
court entered an order certifying the case under § 25-1315.
Abante again appeals.
Anselmo was the sole owner of M & M Marketing, L.L.C.,
which in turn owned Premier Fighter, L.L.C. Premier Fighter
was a retail clothing line that was primarily focused on mixed
martial arts apparel. MMAStop is a business engaged in the
retail and Internet sale of mixed martial arts apparel and equip-
ment. Abante is a business engaged in screen printing, embroi-
dering, and the sale of promotional products to corporate and
school clients. At the time of the summary judgment proceed-
ings below, Anselmo was incarcerated in a federal prison as a
result of a fraud conviction.
In 2008, MMAStop made two separate $80,000 loans
to Premier Fighter, which it understood were for the pur-
pose of funding a merchandise order. The terms for each
loan, although unwritten, required repayment with 50-­ ercent
p
interest within 30 days. The first loan was made on April
14, 2008, and was repaid in full by Premier Fighter on
May 9 in the amount of $120,000 ($80,000 principal plus
$40,000 interest). The second loan was made by MMAStop
on May 30. When the second loan was not repaid within the
agreed period, Anselmo provided MMAStop with a number
of excuses. At this point, MMAStop’s officers began to grow
concerned. At the end of July, Anselmo advised MMAStop
that it would receive a $40,000 wire transfer as partial pay-
ment of the debt. MMAStop received this payment on July
22. The remaining $80,000 arrived in a separate wire transfer
a week later. These wire transfers were made by Abante, as
discussed further below. MMAStop applied these sums in
Decisions of the Nebraska Court of Appeals
56 21 NEBRASKA APPELLATE REPORTS
complete payment of Premier Fighter’s debt, including both
principal and interest.
In separate dealings with Anselmo, Abante was induced
to enter into a financial transaction with Premier Fighter for
the funding of a merchandise order from a retailer. Anselmo
admitted that he altered a merchandise invoice in order to
induce Abante to loan the money. In late July 2008, Abante
agreed to provide Premier Fighter with the sum of $240,000 in
exchange for a 100-percent return on its investment. Abante’s
owners did not believe this return was irregular in the retail
clothing business market. After receiving instructions from
Anselmo, Abante sent MMAStop a total of $120,000 through
two wire transfers, which Abante believed was for the purpose
of beginning production of the merchandise necessary to fill
the order. Abante transferred the remaining $120,000 directly
to Premier Fighter. Anselmo, as an employee and agent of
Premier Fighter, executed a promissory note to Abante in the
amount of $240,000, with 100-percent interest, which was to
be paid on or before October 12, 2008. Abante has received
only one payment of $3,500 on this note.
There is no dispute that the $120,000 that Abante wired
to MMAStop was not used for the production of any mer-
chandise, but was used to satisfy Premier Fighter’s out-
standing debt to MMAStop. Abante’s operative complaint
sought recovery from Anselmo, M & M Marketing, and
Premier Fighter for the unpaid promissory note and against
Anselmo for damages resulting from his alleged fraud. In its
claim against MMAStop, Abante sought recovery of the wired
money in the sum of $120,000 on the theory of money had
and received.
MMAStop moved for summary judgment, and at the hear-
ing, numerous depositions and exhibits were received in evi-
dence. On February 24, 2011, the district court entered an
order granting summary judgment in favor of MMAStop, find-
ing that Abante’s cause of action for money had and received
against MMAStop was without merit. Following the final order
entered on June 29, 2012, Abante appeals.
Decisions of the Nebraska Court of Appeals
ABANTE, LLC v. PREMIER FIGHTER 57
Cite as 21 Neb. App. 53ASSIGNMENT OF ERROR
Abante assigns, summarized and restated, that the dis-
trict court erred in granting summary judgment in favor
of MMAStop.
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court.
State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
[2,3] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as
to any material facts or the ultimate inferences that may be
drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Zawaideh v. Nebraska Dept.
of Health & Human Servs., 285 Neb. 48, 825 N.W.2d 204(2013). 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. Id.ANALYSIS
Jurisdiction.
[4] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. Sutton v. Killham, 285 Neb. 1,
825 N.W.2d 188 (2013). Therefore, we revisit the jurisdiction
question in this case.
As we stated in our previous opinion, the first appeal in
this case was dismissed because the order appealed from
failed to dispose of the claims against all parties involved
in the action and failed to make the necessary findings for
certification under § 25-1315. See Abante, LLC v. Premier
Fighter, 19 Neb. App. 730, 814 N.W.2d 109 (2012). After
our dismissal, the district court entered an order certifying
a final order on June 29, 2012. We now review that order to
Decisions of the Nebraska Court of Appeals
58 21 NEBRASKA APPELLATE REPORTS
determine whether it satisfies the jurisdictional requirements
of a final order.
In its order certifying a final order, the district court declared
that its February 24, 2011, order was a final order within the
meaning of Neb. Rev. Stat. § 25-1902 (Reissue 2008). The
district court also specified that this final order applied only
to Abante’s claim against MMAStop. The court found five
factors to support this order: (1) Two of the named defendants
(Premier Fighter and M & M Marketing) are in bankruptcy, and
the case is stayed as to those defendants and as to Anselmo; (2)
MMAStop was the only defendant to file an answer in the liti-
gation; (3) Anselmo has been incarcerated for the majority of
the proceedings; (4) Abante and MMAStop were planning to
proceed to trial without the other parties; and (5) the cause of
action against MMAStop was distinct from the causes of action
asserted against the remaining defendants.
We find that the district court’s reasoning in its June 29,
2012, order satisfies the requirements of § 25-1315. See Cerny
v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007)
(providing various factors trial court should consider when
determining whether to certify final judgment). Thus, we con-
clude we have jurisdiction to address the present appeal.
Entry of Summary Judgment
in Favor of MMAStop.
[5,6] Abante’s cause of action against MMAStop is one of
assumpsit, which is also referred to as an action for money had
and received. In order to maintain an action for money had and
received, a plaintiff must show that (1) the defendant received
money, (2) the defendant retained possession of the money,
and (3) the defendant in justice and fairness ought to pay the
money to the plaintiff. In re Margaret Mastny Revocable Trust,
281 Neb. 188, 794 N.W.2d 700 (2011). Although founded on
equitable principles, an action for money had and received falls
under the common-law class of assumpsit and is an action at
law. See Daubman v. CBS Real Estate Co., 254 Neb. 904, 580
N.W.2d 552 (1998).
[7] An action in assumpsit for money had and received may
be brought where a party has received money that in equity
Decisions of the Nebraska Court of Appeals
ABANTE, LLC v. PREMIER FIGHTER 59
Cite as 21 Neb. App. 53and good conscience should be repaid to another. City of
Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011). In such a circumstance, the law implies
a promise on the part of the person who received the money
to reimburse the payor in order to prevent unjust enrichment.
Id. When a party uses an assumpsit action in this sense, it is a
quasi-contract claim sounding in restitution. Id. Restitution is
predominantly the law of unjust enrichment. Id.Neither party disputes that Abante established the first
two elements of its claim; namely, that MMAStop received
a total of $120,000 in July 2008 and has retained posses-
sion of the money. Thus, the central issue in this case is
whether justice and fairness require MMAStop to return this
money to Abante. This question, in turn, depends on whether
MMAStop, as payee, has been unjustly enriched by receipt of
the $120,000.
[8-10] Unjust enrichment has been defined to mean a
“‘transfer of a benefit without adequate legal ground.’” City
of Scottsbluff v. Waste Connections of Neb., 282 Neb. at 866,
809 N.W.2d at 743 (quoting Restatement (Third) of Restitution
and Unjust Enrichment § 1, comment b. (2011)). One who is
free from fault cannot be held to be unjustly enriched merely
because one has chosen to exercise a legal or contractual right.
Wrede v. Exchange Bank of Gibbon, 247 Neb. 907, 531 N.W.2d
523 (1995). The Restatement, supra, § 67(1)(a), provides that
a payee without notice who accepts funds from a third party
in satisfaction of a valid claim as a creditor of another per-
son takes free of the third party’s restitution claim to which it
would otherwise be subject.
Because this case was disposed of by summary judgment,
the question before us is whether there are any genuine issues
of material fact regarding MMAStop’s alleged unjust enrich-
ment in retaining the money received from Abante. After
reviewing the evidence in the light most favorable to Abante,
and giving it the benefit of all reasonable inferences, we con-
clude that there are no genuine issues of material fact and that
the district court was correct in determining that MMAStop
was not unjustly enriched.
Decisions of the Nebraska Court of Appeals
60 21 NEBRASKA APPELLATE REPORTS
[11,12] The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that
the moving party is entitled to judgment as a matter of law.
Durre v. Wilkinson Development, 285 Neb. 880, 830 N.W.2d
72 (2013). After the movant for summary judgment makes
a prima facie case by producing enough evidence to demon-
strate that the movant is entitled to judgment if the evidence
was uncontroverted at trial, the burden to produce evidence
showing the existence of a material issue of fact that prevents
judgment as a matter of law shifts to the party opposing the
motion. Id.First, there is no dispute in the facts regarding the transac-
tions between MMAStop and Anselmo on behalf of Premier
Fighter. MMAStop loaned $80,000 to Premier Fighter on April
14, 2008, with the requirement that repayment of the princi-
pal and 50-percent interest occur within 30 days. MMAStop
received repayment of $120,000 on this first loan from Premier
Fighter on May 9. MMAStop made a second loan under the
same terms to Premier Fighter on May 30. The record shows
that the second loan was not repaid within 30 days and that
Anselmo provided MMAStop with a number of excuses, which
caused MMAStop’s officers to grow concerned. Abante did
not adduce evidence to support its suggestion that MMAStop
was or should have been aware of Anselmo’s alleged fraudu-
lent conduct at this point.
Next, the evidence adduced by MMAStop regarding pay-
ment of the second loan clearly shows that it received the
wire transfers totaling $120,000 with the representation from
Anselmo that they were in repayment of the second loan.
Specifically, Anselmo advised MMAStop that funds to pay the
loan would be wired to MMAStop and this in fact occurred.
The evidence presented by MMAStop further indicated that
MMAStop was not aware that Abante was providing these
funds. In fact, Anselmo stated in his deposition that he never
told MMAStop where he acquired the money to repay the
second loan. In response, Abante presented some evidence
that it may have verified bank account information with
MMAStop prior to the wire transfer; however, no evidence
Decisions of the Nebraska Court of Appeals
ABANTE, LLC v. PREMIER FIGHTER 61
Cite as 21 Neb. App. 53was adduced to indicate that Abante was the source of the
funds being wired.
Further, and more important, the undisputed evidence in
the record shows that MMAStop was not aware of Premier
Fighter’s dealings with Abante prior to receiving the wire
transfers. The undisputed evidence also shows that MMAStop
was not aware that Abante was making payment on behalf of
Premier Fighter under the belief that the money was necessary
for MMAStop to begin merchandise production.
Based on the foregoing undisputed facts, MMAStop argues
that it has a legal basis for retaining the money received
from Abante. Relying principally on the Nebraska Supreme
Court’s decision in Federated Mut. Ins. Co. v. Good Samaritan
Hospital, 191 Neb. 212, 214 N.W.2d 493 (1974), MMAStop
contends that it is an innocent creditor that has not been
unjustly enriched by retaining this money.
In Good Samaritan Hospital, supra, the Nebraska Supreme
Court considered whether an insurer could recover an overpay-
ment from a hospital that was the result of the insurer’s own
mistake. The insurer’s policy capped its insured’s benefits at
$12,047.30, but it paid the hospital a total of $19,822.78 on
behalf of its insured. The hospital had rendered services to
the insured in the amount of $13,915.20. When the insurer
later requested that the hospital refund the payment exceeding
policy limits, the hospital refunded only $5,816.31. The insurer
filed suit to recover the additional $1,959.17 that had been
applied to the insured’s hospital bill but was in excess of the
insured’s policy limits. There was no dispute that the insurer
made the mistake or that the hospital had acted in good faith
and without knowledge of the mistake when it received pay-
ment. The court found for the hospital, holding that
[a] creditor who has innocently received payment of
a debt from a third party is under no duty to make res-
titution to the third party if it is later discovered that
the third party had no responsibility to make the pay-
ment and payment was made solely because of the third
party’s mistake.
Id. at 217, 214 N.W.2d at 496. The court also specifically
found that the hospital had not been unjustly enriched because
Decisions of the Nebraska Court of Appeals
62 21 NEBRASKA APPELLATE REPORTS
it had retained only the amount it was due for the services per-
formed. Id.Although there are obvious factual distinctions between
this case and Good Samaritan Hospital, supra, we agree with
MMAStop that the same principles apply in this case. After
receiving Anselmo’s instructions, Abante transferred $120,000
to MMAStop under the mistaken belief that MMAStop was
going to produce Premier Fighter’s merchandise. MMAStop
was not involved in Anselmo’s fraud, did not have knowledge
of Abante’s loan with Premier Fighter, and acted in good faith.
MMAStop had previously loaned Premier Fighter $80,000, to
be paid within 30 days with 50-percent interest, and had been
repaid $120,000. MMAStop entered into an identical second
loan with Premier Fighter and believed the wire transfers
totaling $120,000 were made on behalf of Premier Fighter in
repayment of its second loan. As such, MMAStop innocently
received this money as payment of the debt from Premier
Fighter and had a legal right to retain the money. Therefore,
MMAStop presented evidence to show that it was not unjustly
enriched by retaining this money, and Abante has failed to
adduce evidence to show the existence of a genuine issue of
material fact.
Abante also contends, without citing any evidence or author-
ity to support the conclusion, that MMAStop would be unjustly
enriched if allowed to profit from its dealings with Anselmo
while other creditors are faced with substantial losses. The
record contains information showing that involuntary bank-
ruptcy petitions were filed against Premier Fighter and M & M
Marketing showing creditors having total claims exceeding
$1 million against Anselmo’s companies. This evidence does
not change the conclusion that MMAStop has not been unjustly
enriched in receiving money in repayment of its loan to
Premier Fighter. Contrary to Abante’s argument, MMAStop
did not profit from the retention of the wire transfers; rather, it
received exactly what it was entitled to under the terms of the
second loan to Premier Fighter. Under the law of assumpsit,
which focuses on whether the payee was unjustly enriched, the
district court correctly found that MMAStop was entitled to
retain the money.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF AALIYAH M. ET AL. 63
Cite as 21 Neb. App. 63As stated in the above analysis, we do not find any genuine
issue of material fact regarding MMAStop’s alleged unjust
enrichment. Therefore, we conclude the district court was cor-
rect in entering summary judgment in favor of MMAStop.
CONCLUSION
Based on our review of the record, the facts are undisputed
that MMAStop acted in good faith without knowledge of
Anselmo’s fraud or Abante’s mistake in paying MMAStop.
Because MMAStop has legal justification to retain the funds
it received from Abante, justice and fairness do not require it
to return the money. Therefore, we affirm the decision of the
district court.
Affirmed.
In re I nterest of
Aaliyah M. et al.,
children under18 years of age.
State of Nebraska, appellee, v.
Ronald M., appellant.
___ N.W.2d ___
Filed July 23, 2013. No. A-12-979.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Parental Rights. Parents have a recognized liberty interest in raising their
children.
3. Parent and Child: Due Process. The parent-child relationship is afforded due
process protection.
4. Constitutional Law: Due Process: Appeal and Error. The appellate courts
apply a three-part test for due process protecting liberty interests: (1) Is there
a protected liberty interest at stake? (2) If so, what procedural protections are
required? (3) Given the facts of the case, was there a denial of the process that
was due?
5. Words and Phrases. The word “or,” when used properly, is disjunctive.
6. Constitutional Law: Due Process: Parental Rights. In a hearing on the ter-
mination of parental rights without a prior adjudication hearing, where such
termination is sought under Neb. Rev. Stat. § 43-292(1) through (5) (Cum. Supp.
2012), such proceedings must be accompanied by due process safeguards.