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Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

BLOEDORN LUMBER CO. v. NIELSON

Cite as 300 Neb. 722

Bloedorn Lumber Company of North Platte, 

a Nebraska corporation, appellee, v. Jarrod

M. Nielson, appellee, and David A. Schilke

and Candace Schilke, appellants.

___ N.W.2d ___

Filed August 10, 2018. No. S-16-329.

1 Breach of Contract: Damages. A suit for damages arising from breach 

of a contract presents an action at law.

2. Contracts: Restitution. Any quasi-contract claim for restitution is an 

action at law.

3. Judgments: Appeal and Error. In a bench trial of a law action, the trial 

court’s factual findings have the effect of a jury verdict and will not be 

disturbed on appeal unless clearly wrong.

4. ____: ____. In reviewing a judgment awarded in a bench trial of a law 

action, an appellate court does not reweigh evidence, but considers the 

evidence in the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party, who is entitled to 

every reasonable inference deducible from the evidence

5. Venue: Appeal and Error. Where the record does not show an abuse of 

discretion, a ruling on a motion to transfer venue will not be disturbed 

on appeal.

6. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the appeal.

7. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction over an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken.

8. Judgments: Final Orders: Words and Phrases. A final judgment is 

one that disposes of the case either by dismissing it before hearing is 

had upon the merits, or after trial by rendition of judgment for the plaintiff or defendant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/10/2018 09:08 AM CDT
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BLOEDORN LUMBER CO. v. NIELSON

Cite as 300 Neb. 722

9. Contracts: Unjust Enrichment: Quantum Meruit. A claim that a 

court should imply a promise or obligation to prevent unjust enrichment 

goes by a number of names—“quasi-contract,” “implied-in-law contract,” or “quantum meruit.”

10. Contracts. An express contract claim will supersede a quasi-contract 

claim arising out of the same transaction to the extent that the contract 

covers the subject matter underlying the requested relief.

11. Contracts: Liens. A party may pursue and recover on an unjust enrichment or a quasi-contract claim, notwithstanding a construction lien.

12. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

Appeal from the District Court for Lincoln County: Donald

E. Rowlands, Judge. Affirmed.

Patrick M. Heng and Kortnei N. Hoeft, of Waite, McWha & 

Heng, for appellants.

George E. Clough, and, on brief, Andrea Finegan 

McChesney, of McChesney & Farrell, for appellee Bloedorn 

Lumber Company of North Platte.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and

Papik, JJ., and Daugherty, District Judge.

Papik, J.

Jarrod M. Nielson alleged that David A. Schilke and Candace 

Schilke failed to pay him for work he performed on their residence. Following a bench trial, the district court entered judgment in favor of Nielson and against the Schilkes. The Schilkes 

raise various assignments of error regarding that judgment on 

appeal, but we find no merit to those assignments of error and, 

consequently, affirm the judgment of the district court.

BACKGROUND

Project.

This dispute arises out of a home improvement project. 

In 2013 and 2014, Nielson worked on an addition to the 
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300 Nebraska Reports

BLOEDORN LUMBER CO. v. NIELSON

Cite as 300 Neb. 722

Schilkes’ home. The project included the installation of granite 

countertops. Nielson obtained the countertops and accompanying materials from Bloedorn Lumber Company of North 

Platte (Bloedorn).

After the countertops were installed in May 2014, Nielson 

stopped working on the Schilkes’ home. The parties dispute the 

reason Nielson stopped working. The Schilkes say they fired 

Nielson because they were unhappy with his work. In particular, Candace Schilke testified that the countertops Nielson 

had installed contained a type of sink other than the one 

she requested and had seams that were “sticking up and 

out.” Nielson says he stopped working because he was not 

being paid.

Both Nielson and Bloedorn eventually filed construction 

liens on the Schilkes’ home. Neither Nielson nor Bloedorn 

instituted legal proceedings to enforce the liens.

Parties’ Claims.

In February 2015, Bloedorn filed a complaint against Nielson 

and the Schilkes in the district court for Lincoln County. 

Bloedorn alleged that Nielson had ordered and received the 

countertops and accompanying materials from Bloedorn for 

installation in the Schilkes’ home, but had not paid Bloedorn.

Nielson and the Schilkes answered Bloedorn’s lawsuit, but 

also filed cross-claims against each other. Nielson alleged that 

the parties entered into an oral agreement in which Nielson 

would build an addition onto the Schilkes’ home in exchange 

for payment and that the Schilkes breached that agreement 

by failing to pay him for his time and the materials. Nielson 

also alleged that the Schilkes had been unjustly enriched as a 

result of the countertops’ being installed without payment. The 

Schilkes alleged that they contracted with Nielson to complete 

construction work on their residence and that they had paid 

Nielson all he was owed, but that Nielson had failed to pay 

Bloedorn for the construction materials. On the basis of these 

facts, the Schilkes asserted that Nielson was liable to them for 

fraud and unjust enrichment.
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BLOEDORN LUMBER CO. v. NIELSON

Cite as 300 Neb. 722

Motion to Transfer Venue.

Early in the case, the Schilkes filed a motion to transfer 

venue from the district court for Lincoln County to the district 

court for Chase County. They argued that transfer was appropriate because their residence is in Chase County. The district 

court overruled the motion, finding that venue was present in 

Lincoln County on the basis of Nielson’s residence there. It 

added that any inconvenience suffered by the Schilkes was offset by the inconvenience Nielson and Bloedorn would endure 

if the case were transferred to Chase County.

District Court’s Resolution 

of Parties’ Claims.

A bench trial was held in January 2016. Bloedorn presented 

evidence that it provided Nielson with the countertops and 

accompanying materials for installation in the Schilkes’ residence. Nielson testified that the Schilkes were to pay him for 

the cost of materials plus a markup. Nielson acknowledged 

his debt to Bloedorn for the countertops and accompanying 

materials. The testimony conflicted, however, as to whether 

the Schilkes had paid Nielson for the installation of the 

countertops. Candace Schilke testified that she paid Nielson 

for the installation of the countertops via a $30,000 check 

before they were installed. Nielson disagreed, taking the position that the $30,000 check was in payment for other work 

and materials.

After the trial, the district court issued a judgment, styled 

as a journal entry and order, disposing of the parties’ various 

claims. With respect to Bloedorn’s claim against Nielson, the 

court entered judgment in favor of Bloedorn in the amount 

of $11,551.89 (the cost of the countertops and accompanying materials), plus statutory interest. The court dismissed 

Bloedorn’s claim against the Schilkes, explaining that there 

was no agreement between the Schilkes and Bloedorn which 

would support a breach of contract claim and that the Schilkes 

were not unjustly enriched at Bloedorn’s expense. The district 
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BLOEDORN LUMBER CO. v. NIELSON

Cite as 300 Neb. 722

court also dismissed the Schilkes’ cross-claim against Nielson 

on the grounds that Nielson was not unjustly enriched and that 

there was no evidence Nielson had committed actual or constructive fraud.

Finally, the district court found that Nielson’s claim against 

the Schilkes “ha[d] merit.” It explained that Nielson installed 

the countertops in the Schilkes’ residence and that Candace 

Schilke admitted that the countertops increased the value of the 

residence. The court added that while the Schilkes had complaints about the quality of Nielson’s work, no evidence had 

been introduced as to the cost of remedying alleged defects or 

that the defects decreased the value of the home. The district 

court awarded Nielson $11,551.89, which the court found was 

the “fair and reasonable amount that the Schilkes have been 

unjustly enriched.” The district court made no reference to 

Nielson’s allegation that the Schilkes breached their agreement 

with him.

The Schilkes later filed a motion for a new trial. The district 

court overruled the motion, and the Schilkes appealed.

ASSIGNMENTS OF ERROR

The Schilkes assign, consolidated and reordered, that the 

district court erred (1) in finding that Nielson was entitled to 

recover under the theory of unjust enrichment when a contract 

existed between the parties, (2) in finding that Nielson was 

entitled to recover under the theory of unjust enrichment when 

Nielson had a statutory remedy of foreclosure on his construction lien, (3) in finding that Nielson was entitled to recover 

under the theory of unjust enrichment when the evidence did 

not show the Schilkes were unjustly enriched, and (4) in denying the motion to transfer venue.

STANDARD OF REVIEW

[1,2] A suit for damages arising from breach of a contract presents an action at law. Par 3, Inc. v. Livingston, 268 

Neb. 636, 686 N.W.2d 369 (2004). The same is true for any 
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Cite as 300 Neb. 722

action asserting a quasi-contract claim for restitution. City of 

Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 

N.W.2d 725 (2011).

[3,4] In a bench trial of a law action, the trial court’s factual findings have the effect of a jury verdict and will not be 

disturbed on appeal unless clearly wrong. Id. In reviewing a 

judgment awarded in a bench trial of a law action, an appellate 

court does not reweigh evidence, but considers the evidence in 

the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party, who 

is entitled to every reasonable inference deducible from the 

evidence. Hooper v. Freedom Fin. Group, 280 Neb. 111, 784 

N.W.2d 437 (2010).

[5] Where the record does not show an abuse of discretion, 

a ruling on a motion to transfer venue will not be disturbed on 

appeal. Community First State Bank v. Olsen, 255 Neb. 617, 

587 N.W.2d 364 (1998).

ANALYSIS

Appellate Jurisdiction.

[6] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the appeal. In re Estate of Abbot-Ochsner, 

299 Neb. 596, 910 N.W.2d 504 (2018). While not raised 

by either of the parties, we stop to address our jurisdiction 

because, at first blush, it could appear that the district court 

did not resolve all claims presented. Although Nielson referred 

to both breach of contract and unjust enrichment in his crossclaim against the Schilkes, the district court made no reference 

to Nielson’s breach of contract theory of recovery.

[7,8] For an appellate court to acquire jurisdiction over 

an appeal, there must be a final order or final judgment 

entered by the court from which the appeal is taken. Ginger 

Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 

N.W.2d 467 (2017). A final judgment is one that disposes of 

the case either by dismissing it before hearing is had upon 
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the merits, or after trial by rendition of judgment for the plaintiff or defendant. Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 

31 (2018).

While the district court’s judgment did not reference 

Nielson’s allegation that the Schilkes breached their contract 

with him, it does not automatically follow that the judgment 

was not final. Nielson’s cross-claim asserted two separate 

theories of recovery—unjust enrichment and breach of contract. Because those theories of recovery are based on the same 

operative facts, however, Nielson asserted one cause of action. 

See Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008). 

The district court awarded judgment in favor of Nielson on his 

one cause of action against the Schilkes and also resolved all 

claims raised by other parties in the action. Nothing further 

was left for the court’s consideration. The judgment was thus 

final and appealable.

Effect of Express Contract on 

Unjust Enrichment Recovery.

We begin our analysis of the merits of the Schilkes’ appeal 

with their contention that the district court erred by granting 

Nielsen a recovery on the basis of unjust enrichment when 

the parties had an express contract covering the same subject 

matter. As noted above, the district court entered judgment in 

favor of Nielson on unjust enrichment grounds without explicitly referring to Nielson’s allegation that the Schilkes had 

breached their contract with him.

[9] Before addressing this argument, we pause briefly to 

review the nature of unjust enrichment claims and their relationship to claims for breach of contract. A claim that a court 

should imply a promise or obligation to prevent unjust enrichment goes by a number of names—“quasi-contract,” “impliedin-law contract,” or “quantum meruit.” See, City of Scottsbluff 

v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725 

(2011); Associated Wrecking v. Wiekhorst Bros., 228 Neb. 

764, 424 N.W.2d 343 (1988). Such claims do not arise from 
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Cite as 300 Neb. 722

an express or implied agreement between the parties; rather, 

they are imposed by law “when justice and equity require the 

defendant to disgorge a benefit that he or she has unjustifiably 

obtained at the plaintiff’s expense.” City of Scottsbluff v. Waste 

Connections of Neb., 282 Neb. at 857, 809 N.W.2d at 738.

[10] Unjust enrichment or quasi-contract claims are viable 

only in limited circumstances. For example, as the Schilkes 

correctly point out, “‘[t]he terms of an enforceable agreement 

normally displace any claim of unjust enrichment within their 

reach.’” Id. at 860, 809 N.W.2d at 740, quoting Restatement 

(Third) of Restitution and Unjust Enrichment § 2, comment 

c. (2011). Put another way, an express contract claim will 

supersede a quasi-contract claim arising out of the same transaction to the extent that the contract covers the subject matter 

underlying the requested relief. See City of Scottsbluff v. Waste 

Connections of Neb., supra.

Although contract claims supersede unjust enrichment or 

quasi-contract claims, a plaintiff is permitted to allege both. 

See Professional Recruiters v. Oliver, 235 Neb. 508, 456 

N.W.2d 103 (1990). When a plaintiff does so, we have said 

that a court should address the contract claim first. See City of 

Scottsbluff v. Waste Connections of Neb., supra. But if recovery 

on an express contract theory proves not to be viable, there are 

circumstances in which recovery may still be had on an unjust 

enrichment or a quasi-contract basis.

One such circumstance is when a party seeking payment 

only partially (but not substantially) performs a contract and 

is thus precluded from a breach of contract recovery. See RM 

Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326, 

886 N.W.2d 240 (2016) (explaining that to successfully bring 

breach of contract action, plaintiff must establish substantial 

performance of contract). We have held that if a party only 

partially performs a contract and the other party has accepted 

and retained the benefits thereof, the party seeking payment 

may recover “the reasonable or fair value of such performance, 

subject to the reciprocal right of the other party to recoup such 
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Cite as 300 Neb. 722

damages as he or she has suffered” from the failure to perform. 

Id. at 342, 866 N.W.2d at 255. See, also, Peters v. Halligan, 

182 Neb. 51, 60, 152 N.W.2d 103, 109 (1967) (characterizing 

recovery that is available for party who partially performs contract when other party has retained benefits thereof as being on 

“a quantum meruit basis”).

The foregoing discussion is relevant because there is evidence in the record that this very scenario occurred here. Both 

Nielson and the Schilkes alleged and introduced evidence 

of an oral agreement that Nielson would have granite countertops installed in exchange for payment, which, according to Nielson, was to include a markup for materials. And 

while Candace Schilke testified that the countertops had visible 

seams “sticking up and out” and contained a type of sink other 

than the one she requested, she also admitted that Nielson had 

the countertops installed and that they increased the value of 

the residence.

This evidence would allow the district court to reasonably 

conclude that Nielson had partially performed the parties’ 

agreement and was thus entitled to receive the reasonable value 

of the benefits he conferred on the Schilkes. Because we find 

that the district court’s judgment in favor of Nielson on unjust 

enrichment grounds is supported by the evidence, the Schilkes’ 

assignment of error fails.

Effect of Construction Lien on 

Unjust Enrichment Recovery.

The Schilkes fare no better with their argument that the trial 

court erred by awarding Nielson an unjust enrichment recovery 

when he could have foreclosed on his construction lien. Here, 

the Schilkes contend that because Nielson had the option to 

pursue foreclosure of his construction lien, he could not validly recover on an unjust enrichment or a quasi-contract basis. 

We disagree.

In Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 

621 N.W.2d 502 (2001), it was argued that the Nebraska 
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Cite as 300 Neb. 722

Construction Lien Act precluded a construction lienholder from 

pursuing an action for breach of contract. We rejected the 

argument, relying on a rule recognized in many other jurisdictions that unless otherwise provided by statute, the remedy 

for a mechanic’s lien and the remedy for the underlying debt 

may be pursued at the same time or in succession. We pointed 

out that this rule is consistent with the principle that a statute 

will not be interpreted to restrict or remove a common-law 

right unless plainly compelled by the language, because the 

Nebraska Construction Lien Act does not indicate that it precludes a breach of contract action.

[11] While Tilt-Up Concrete held that a party may pursue a 

breach of contract action notwithstanding a construction lien, 

its reasoning indicates that a party may also pursue and recover 

on an unjust enrichment or a quasi-contract claim, notwithstanding a construction lien. The right to an unjust enrichment 

or a quasi-contract recovery also existed at common law, see 

Restatement (First) of Contracts § 5, comment a. (1932), and 

the Nebraska Construction Lien Act does not indicate that it 

was meant to preclude such claims. We thus join other courts 

that have held that the existence of a construction lien does 

not preclude an unjust enrichment or a quasi-contract recovery 

for work or materials covered by the lien. See, e.g., Brown 

Sprinkler Corp. v. Somerset-Pulaski, 335 S.W.3d 455 (Ky. App. 

2010); Morris Pumps v. Centerline Piping, 273 Mich. App. 

187, 729 N.W.2d 898 (2006); A-Tech Concrete Co. v. West 

Orange Public Schools, No. L-6044-05, 2008 WL 4057750 

(N.J. Super. Sept. 3, 2008) (unpublished opinion).

Because Nielson’s filing of a construction lien does not preclude an unjust enrichment recovery, the Schilkes’ assignment 

of error lacks merit.

Evidence to Support Unjust 

Enrichment Recovery.

We must also disagree with the Schilkes’ contention that 

Nielson failed to show that the Schilkes had been unjustly 
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enriched. The Schilkes contend that they were not unjustly 

enriched for two reasons: because Nielson did not transfer 

any benefit to them and because they paid Nielson for the 

countertops.

With respect to the Schilkes’ first contention, the evidence 

shows that Nielson acted as the Schilkes’ contractor, arranged 

for the installation of the countertops, and incurred a debt to 

Bloedorn for the cost of the countertops. The evidence also 

shows that the countertops increased the value of the Schilkes’ 

residence. The Schilkes are mistaken that Nielson did not 

transfer any benefit to them.

With respect to the Schilkes’ argument that they paid 

Nielson for the countertops, the Schilkes point to Candace 

Schilke’s testimony that she intended to pay for the countertops with the $30,000 check referenced above. At most, 

however, this merely establishes a conflict in the evidence. 

Nielson testified that he was not paid for the countertops. 

We must resolve any such conflicts in favor of Nielson and 

give Nielson every reasonable inference deducible from the 

evidence. See Henton v. Nokes, 258 Neb. 230, 603 N.W.2d 

1 (1999). Under this standard, we cannot say that the trial 

court clearly erred by finding that Nielson was not paid for 

the countertops.

Motion to Transfer Venue.

This leaves only the Schilkes’ assignment that the district 

court erred in denying their motion to transfer venue to Chase 

County. We find that it did not.

[12] As noted above, a ruling on a motion to transfer venue 

will not be disturbed on appeal unless the record shows an 

abuse of discretion. Community First State Bank v. Olsen, 

255 Neb. 617, 587 N.W.2d 364 (1998). An abuse of discretion occurs when a trial court’s decision is based upon reasons 

that are untenable or unreasonable or if its action is clearly 

against justice or conscience, reason, and evidence. Lombardo 

v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
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Here, the district court overruled the Schilkes’ motion to 

transfer venue on the ground that any inconvenience suffered 

by the Schilkes by allowing the case to proceed in Lincoln 

County was offset by the inconvenience that would be caused 

to Nielson and Bloedorn if the case were transferred to Chase 

County. We find the court’s reasoning sound and certainly not 

an abuse of discretion.

CONCLUSION

Finding no merit in any of the assignments of error raised by 

the Schilkes, we affirm.

Affirmed.