- 632 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

Barbara J. Humphrey, appellee, v. 

Edward J. Smith and Dora 

Prosolow, appellants.

___ N.W.2d ___

Filed May 27, 2022. No. S-21-131.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

2. 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.

3. ____: ____. An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there 

is no genuine issue as to any material facts and that the moving party is 

entitled to judgment as a matter of law.

4. Appeal and Error. Appellate review of a district court’s use of inherent 

power is for an abuse of discretion.

5. ____. Plain error is error plainly evident from the record and of such a 

nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

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 matter before it.

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

to acquire jurisdiction of an appeal, there must be a final order entered 

by the court from which the appeal is taken.

8. Summary Judgment: Final Orders: Partition. Although partial summary judgments are usually considered interlocutory and must ordinarily 

dispose of the whole merits of the case to be considered final, partition actions are unique in that the action has two distinct stages: first, 

Nebraska Supreme Court Online Library

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

06/13/2022 01:06 AM CDT
- 633 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

the title determination and, second, the division of the real estate, i.e., 

the “partition.”

9. Partition: Final Orders: Appeal and Error. When the dispute in a 

partition action is over the partition itself rather than ownership or title, 

there is no final, appealable order until the partition is made.

10. ____: ____: ____. When a partition action involves a dispute over 

ownership or title as well as a dispute over the method of partition, the 

parties have a right to have title determined first, and, if they elect to do 

so, an order resolving only the title dispute is a final, appealable order.

11. ____: ____: ____. When the only issue in a partition action depends on 

ownership and the nature of the title, an order determining that issue is 

a final, appealable order.

12. Summary Judgment. Summary judgment is proper when the pleadings 

and the evidence admitted at the hearing disclose that there is no gen

uine 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.

13. Rules of the Supreme Court: Summary Judgment: Appeal and 

Error. In the context of Neb. Ct. R. § 6-1526, trial courts should have 

some discretion to adapt procedures to the needs of a particular case, 

and an appellate court will not intervene except where the discretion 

is abused.

14. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

15. Equity: Intent. A court of equity will consider the purpose and not the 

form, and the particular form or words of a conveyance are unimportant 

if the intention of the parties can be ascertained.

16. Deeds: Mortgages: Intent. A deed of real estate, absolute in form, may 

be shown by parol to have been intended by the parties to it as security 

for a debt or loan, and as between such parties, at least, the instrument 

will be construed to be a mortgage.

17. Unjust Enrichment. Unjust enrichment claims are viable only in limited circumstances, and the terms of an enforceable agreement normally 

displace any claim of unjust enrichment within their reach.

18. Appeal and Error. An appellee may not question a portion of a judgment at issue on appeal unless the appellee properly raises the issue by 

filing a cross-appeal. 

Appeal from the District Court for Douglas County: Duane 

C. Dougherty, Judge. Affirmed in part, and in part reversed 

and remanded with directions.
- 634 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

Judith A. Wells, of Law Office of Judith A. Wells, and 

Darnetta L. Hunter for appellants.

Matthew P. Saathoff and Katherine A. Rehan, of Saathoff 

Law Group, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Donald Humphrey and Edward J. Smith purchased a house 

together. Donald paid a portion of the purchase price of the 

home, which the parties agreed was to be a loan. Donald and 

Smith had a written loan agreement, wherein they agreed that 

Donald would remove his name from the property’s ownership once the loan was repaid. After Donald died, his wife, 

Barbara J. Humphrey, filed a complaint for partition of the 

property, contending she and Smith were tenants in common. 

Smith countered that before Donald died, he orally forgave 

the remainder of the loan, leaving Smith as the sole owner of 

the property.

The district court for Douglas County, Nebraska, granted 

Barbara’s motion for summary judgment as to partition, but 

denied her motion for summary judgment as to unjust enrichment. The court also denied Smith’s motion for summary judgment as to his counterclaim for unjust enrichment claim. For 

reasons set forth herein, we affirm in part, and in part reverse 

and remand with directions consistent with this opinion.

BACKGROUND

Loan

The real estate at issue is a single family dwelling located 

on North Ridge Drive in Omaha, Nebraska (the Home). In 

2015, Donald and Smith purchased the Home for $35,000. 

Both Donald and Smith were listed as purchasers on the purchase agreement and as grantees on a special warranty deed 
- 635 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

to the Home. Donald paid approximately $25,000 toward the 

purchase of the Home, which, all parties agree, was a loan 

(the Loan). In order to arrange for the repayment of the Loan, 

Donald and Smith entered into a loan agreement, which provided, in part:

Smith found [the Home] to serve as a personal residence 

for him.

. . . .

[Donald’s] name is added to the property’s ownership 

as a way to secure repayment of the $25,192.92 loan 

made to . . . Smith, while [he] lives on the property as his 

permanent residence.

After . . . Smith repays Donald . . . the loan, [Donald’s] 

name will be removed from the property’s ownership 

leaving . . . Smith as the sole owner of [the Home]. This 

agreement also states that if the inevitable or unavoidable should happen to Donald . . . then his interest in the 

above-mentioned property shall fall to Barbara . . . but 

only until the lack [sic] portions of the $25,219.92 loan is 

repaid. Once the loan is paid in full, then Smith takes full 

ownership of the [Home].

From approximately December 2015 until 2018, Smith made 

monthly payments toward the Loan pursuant to their agreement. Eventually, Smith stopped making payments, because 

he claimed that Donald forgave the Loan in June or July 2018. 

Smith’s partner, Dora Prosolow, also testified to hearing Donald 

orally forgive the Loan in June or July 2018. Accordingly, 

Smith did not make any payments toward the Loan in June 

or July of that year. However, the last recorded payment 

was dated August 3, 2018, and was for “Loan Repayment on 

House.” Donald died on August 24, 2018. Although Smith 

and Prosolow (collectively Appellants) are still residing in the 

Home, they have not paid rent or made any payments toward 

the Loan since the last recorded payment. Barbara refutes the 

allegation that Donald forgave the Loan and claims a balance 

remains on the Loan in the amount of $16,126.11.
- 636 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

Court Proceedings

After Donald’s death, Barbara filed an affidavit for transfer of real property without probate with the Douglas County 

register of deeds. The affidavit purported to transfer Donald’s 

interest in the Home to Barbara. The affidavit stated, “The 

deceased is the sole owner of the real property described as An 

undivided 1/2 interest in Lot 16, Dillons 11th Addition . . . .” A 

title and escrow report further listed Barbara and Smith as the 

vested titleholders of the Home.

Barbara then filed a complaint for partition in the district 

court, requesting that a referee be appointed to conduct a 

sale and to divide the proceeds between herself and Smith 

according to their respective ownership interests. Barbara also 

requested that the court permanently enjoin Appellants from 

possessing the home. Barbara further alleged that Appellants 

had been unjustly enriched, because they have enjoyed the 

benefits of living in the Home without paying rent, and that 

therefore, Barbara was entitled to those lost rents.

Appellants filed an answer, denying most of the allegations 

in the complaint. Smith also filed a counterclaim alleging that 

the Humphreys were unjustly enriched because he performed 

work for them for which he was not adequately compensated. 

Although Smith concedes that the Humphreys paid him for the 

work at the agreed-upon wage, he nevertheless argues that the 

amount paid was less than what he should have received and 

that he lost $136,000 in unpaid services.

Barbara filed her motion for summary judgment on her 

complaint and on Smith’s counterclaim. In support of her 

motion, Barbara filed a statement of undisputed facts, along 

with an evidence index. Appellants did not file an opposition to summary judgment or a statement of disputed facts. 

However, Appellants did file a motion to dismiss with prejudice, with several accompanying pleadings in support of 

said motion, including “Defendant’s Evidence of Forgery,” 

“Defendant’s Evidence of Adverse Possession,” and “Defend

ant’s Evidence of Bias and Prejudice.” In response, Barbara 
- 637 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

filed a motion to strike the pleadings for failure to comply 

with Neb. Ct. R. § 6-1526(B)(1) and (2), which requires 

a party to file an evidence index and an annotated statement of disputed facts when opposing a motion for summary judgment.

At the hearing on the motion for summary judgment, 

Appellants offered several exhibits into evidence which were 

received over Barbara’s objections. After the hearing, the district court granted the motion for summary judgment in part 

and denied it in part. Specifically, the court determined that 

the evidence indisputably showed that Barbara and Smith 

owned the Home as tenants in common and that as a result, 

Barbara was entitled to a partition as a matter of law. The court 

also granted summary judgment on Smith’s unjust enrichment 

counterclaim, finding that the evidence indisputably showed 

that Smith and the Humphreys agreed to an hourly wage and 

that the Humphreys paid Smith all amounts due under the 

agreement. However, the court determined that Barbara was 

not entitled to summary judgment on her claim for unjust 

enrichment for lost rent, because there was a factual dispute as 

to whether the loan had been forgiven. Additionally, the court 

declined to rule on Barbara’s request for attorney fees pursuant 

to Neb. Rev. Stat. § 25-2179 (Reissue 2016).

The court ultimately found that a referee should be appointed 

to conduct a partition of the Home and that if the Home was 

to be sold at a referee’s sale, Barbara and Smith would each 

be entitled to 50 percent of the proceeds. The court stated, 

“Smith’s share will be offset by either (1) the unpaid balance 

of the Loan or (2) half the rental value of the Home for the 

period that [Appellants] have occupied it since they last made 

a monthly payment.” Appellants filed a timely appeal.

ASSIGNMENTS OF ERROR

Appellants assign three errors, but they can be summed up 

as asserting the district court erred in finding that there was 

no issue of disputed fact as to whether Barbara and Smith 
- 638 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

owned the property as tenants in common and that based on 

those undisputed facts, Barbara was entitled to partition as a 

matter of law.

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law. 1

[2,3] 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. 2 An appellate court affirms a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

and that the moving party is entitled to judgment as a matter 

of law. 3

[4] Appellate review of a district court’s use of inherent 

power is for an abuse of discretion. 4

[5] Plain error is error plainly evident from the record and 

of such a nature that to leave it uncorrected would result in 

damage to the integrity, reputation, or fairness of the judicial process. 5

ANALYSIS

Jurisdiction

[6-8] 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. 6 For an appellate 

1 Schlake v. Schlake, 294 Neb. 755, 885 N.W.2d 15 (2016).

2 Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).

3 Id.

4 Id.

5 Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 

N.W.2d 378 (2021), disapproved on other grounds, Clark v. Sargent Irr. 

Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).

6 Schlake, supra note 1.
- 639 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

court to acquire jurisdiction of an appeal, there must be a final 

order entered by the court from which the appeal is taken. 7

Although partial summary judgments are usually considered 

interlocutory and must ordinarily dispose of the whole merits of the case to be considered final, partition actions are 

unique in that the action has two distinct stages: first, the title 

determination and, second, the division of the real estate, i.e., 

the “partition.” 8

The seminal case on the issue of the appealability of orders 

in a partition action is Peterson v. Damoude.

 9 In that case, we 

explained that the appealability of orders in partition actions 

depends on the nature of the controversy resolved and that such 

orders can be arranged into three classes:

(1) Where there is no controversy as to the ownership 

of the property in common and the right of partition, but 

the controversy is as to something relating to the partition, as whether the property can be equitably divided 

or must be sold, one party contending that it can be 

equitably divided and asking for a distinct portion of the 

property, and the other party contending that it cannot 

be equitably divided and asking that the whole property 

be sold, or some similar controversy in regard to the partition itself. When that is the case, the partition alone is the 

subject of litigation, and of course is not final until the 

partition is made.

(2) The second class is where there is the same issue 

as above indicated as to the method of partition, and at 

the same time a distinct issue as to the title and ownership of the property. In such cases the parties would 

have a right to have their title first tried and determined, 

and, if that was done, the order thereon would be a final 

7 Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004).

8 Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 

825 (2017).

9 Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914).
- 640 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

order, . . . but if the matter is tried to the court, and the 

parties do not ask that their title be first determined, 

and there is no indication that the court proceeded first 

to determine the title, the parties should be held to 

have waived their right to appeal before the partition 

is completed.

(3) The third class is where everything depends upon 

the title and the nature of the title, and where, when that 

question is determined, the whole thing is determined. In 

such case there can be no doubt . . . that, when that question is determined, such determination is a final order, 

within the meaning of the statute, and is appealable. 10

[9-11] Put differently, when the dispute in a partition action 

is over the partition itself rather than ownership or title, there 

is no final, appealable order until the partition is made. 11 When 

a partition action involves a dispute over ownership or title as 

well as a dispute over the method of partition, the parties have 

a right to have title determined first, and, if they elect to do so, 

an order resolving only the title dispute is a final, appealable 

order. 12 When the only issue in a partition action depends on 

ownership and the nature of the title, an order determining that 

issue is a final, appealable order. 13

In Peterson, the petition alleged that a decedent’s will disposed of certain real estate, prayed that the court construe the 

will “‘with reference to the right of the plaintiffs to have partition and division of said premises,’” and asked the court to 

quiet title in the plaintiffs. 14 On appeal, this court recognized 

that the “sole matter contested was the construction and effect 

of the will; there being no contest as to the partition if the 

10 Id. at 471, 145 N.W. at 848, citing Sewell v. Whiton, 85 Neb. 478, 123 

N.W. 1042 (1909).

11 Schlake, supra note 1.

12 Id.

13 Id.

14 Peterson, supra note 9, 95 Neb. at 472, 145 N.W. at 848.
- 641 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

will is construed as the plaintiffs contend.” 15 Thus, because 

the order construing the will determined the whole controversy, we determined that the case fell within the third class 

and concluded that the district court’s order was final.

Then, in Beck v. Trapp,

 16 another partition case, the district 

court found, in part, that the plaintiffs were the owners of the 

land and quieted their title to the same. The court also determined the respective interests of the defendants and directed 

that the lands be partitioned. Subsequently, the appointed referee reported that partition could not be made without prejudice to the owners. Accordingly, the land was sold. On appeal, 

we determined that the case came within the third Peterson 

class, because “[t]he decree settling the question of title in 

the case at bar ‘determined the whole controversy.’ . . .” 17 In 

making this determination, we recognized that the real controversy in the action was the issue of title and that the partition 

prayed for was only incidental, because “[i]f the plaintiffs did 

not succeed in establishing their title, they would have no right 

to partition.” 18

We have consistently applied the three classes set out in 

Peterson to determine when and under what circumstances 

orders in partition actions are final and appealable, and we 

conclude it is applicable here as well. As an initial matter, we 

first note that this case does not fall into either the first or 

second Peterson class, because the parties do not contest the 

method of partition. Barbara’s complaint asserts that a sale of 

the Home is necessary because the Home is not susceptible 

to a partition in kind. Appellants generally deny this allegation in their answer, but fail to assert what they believe is the 

appropriate method of partition. Further, in his deposition, 

Smith appeared to concede that if the Home is subject to a 

15 Id.

16 Beck v. Trapp, 103 Neb. 832, 174 N.W. 610 (1919).

17 Id. at 835, 174 N.W. at 611.

18 Id. at 834, 174 N.W. at 610.
- 642 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

partition, the appropriate method would be a referee sale of 

the Home.

The real controversy in this case is the issue of title, and the 

partition is incidental to the issue of title. If Barbara does not 

succeed in establishing her title, she has no right to partition. 

If Barbara does succeed in establishing her title, the parties 

seem to agree that a referee’s sale is appropriate. Accordingly, 

this brings the case within the third Peterson class, because the 

order settling the question of title “determined the whole controversy,” and, as such, we find that the district court’s order is 

final and appealable.

Summary Judgment

Appellants assert that there exist genuine disputes of material fact concerning the parties’ respective titles to the Home 

and that therefore, summary judgment was not appropriate. 

Upon our review of the record, we agree.

[12] Summary judgment is proper when the pleadings and 

the evidence admitted at the hearing disclose 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. 19 The 

evidence that may be received on a motion for summary judgment includes depositions, answers to interrogatories, admissions, stipulations, and affidavits. 20

Before we consider whether Barbara’s motion for summary 

judgment should have been entered, we must first consider 

the possible implications of Appellants’ failure to file an 

evidence index and an annotated statement of disputed facts, 

as required by § 6-1526 in opposition to the motion. At the 

summary judgment hearing, Appellants offered, and the court 

received, several exhibits into evidence. Appellants also made 

certain arguments in support of their opposition to summary 

19 Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).

20 Bohling, supra note 2.
- 643 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

judgment. Barbara contends that Appellants’ evidence and 

arguments made in opposition to her summary judgment 

motion should be disregarded because Appellants failed to 

comply with § 6-1526. We disagree.

[13] In a recent case, we identified three reasons for 

§ 6-1526, namely, to benefit the parties by making their claims 

as to disputed and undisputed facts clear and precise, to serve 

the courts by exposing the precise claims of the parties, and 

to focus the parties and the court on the specific factual contentions. 21 We noted, however, that in the context of § 6-1526, 

trial courts should have some discretion to adapt procedures to 

the needs of a particular case, and an appellate court will not 

intervene except where the discretion is abused. 22

Here, the issues and facts raised and contested by Appellants 

were made clear by their “Evidence of Frivolous in Support 

of Motion and Notice for Dismissal” and “Evidence Index in 

Support of Their Motion to Dismiss Without Prejudice.” As 

such, we find no abuse of discretion in the court’s allowing 

Appellants to proceed with offering evidence notwithstanding 

their failure to comply with the summary judgment rule. But, 

we caution that trial courts should not condone a party’s failure 

to follow § 6-1526 merely because the party finds it inconvenient or unfamiliar. 23 Instead, courts should set deadlines in 

compliance with the rule and require parties to submit necessary materials. 24

Now turning to the appropriateness of granting summary judgment, we note that the method of partition was 

never in question and we discern no genuine issue of material fact regarding that issue. We therefore focus our analysis on whether the district court erred in granting summary 

21 Id.

22 Id.

23 Id.

24 Id.
- 644 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

judgment in favor of Barbara on the contested issue of title, 

specifically whether Donald forgave the Loan.

As noted, it is undisputed that the $25,000 Donald paid 

toward the purchase price of the Home was a loan and that 

upon repayment of the Loan, Donald would relinquish his ownership interest in the Home, leaving Smith as the sole owner. 

Thus, if the allegation that Donald forgave the Loan is true, it 

would necessarily follow that Smith is the sole owner of the 

Home and that Barbara does not have a right to partition.

Despite Barbara’s argument that the Loan was not forgiven, 

the evidence adduced at the summary judgment hearing demonstrated that Donald may have made an affirmative representation to Appellants that he would forgive the remaining balance 

on the Loan. At the hearing, transcripts from both Smith’s and 

Prosolow’s depositions were received into evidence. According 

to Smith’s deposition, Donald forgave the loan in June or July 

2018. This was corroborated by Prosolow, who testified that 

sometime in July 2018, she overheard Donald tell Smith that 

“as long as you take care of [Barbara], that’s all I want, then 

the loan is forgiven and you’ll have the truck so that you can 

take care of her.” Thus, there is a genuine dispute as to whether 

Donald forgave the loan.

Moreover, the district court itself seemed to recognize this 

factual dispute when it declined to grant summary judgment 

on Barbara’s claim for unpaid rent, because it recognized that 

“there [was] conflicting evidence on this issue,” because “[a] 

reasonable mind could conclude that, although Smith initially 

agreed to repay the Loan in full, it was later forgiven and 

Smith is no longer obligated to repay it.” As such, summary 

judgment on the partition action was improper.

[14] We further acknowledge that in the summary judgment context, a fact is material only if it would affect the 

outcome of the case. 25 Thus, we find it important to address 

the district court’s findings that even if the Loan was forgiven, 

25 Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014).
- 645 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

Donald retained his ownership interest in the Home because 

there is no evidence that he ever relinquished his ownership interest.

[15,16] It is a well-settled principle that a court of equity 

will consider the purpose and not the form, and that the particular form or words of a conveyance are unimportant if the 

intention of the parties can be ascertained. 26 Additionally, Neb. 

Rev. Stat. § 76-251 (Reissue 2018) states in part that “[e]very 

deed conveying real estate, which, by any other instrument in 

writing, shall appear to have been intended only as a security 

in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” Generally, a 

deed of real estate, absolute in form, may be shown by parol to 

have been intended by the parties to it as security for a debt or 

loan, and as between such parties, at least, the instrument will 

be construed to be a mortgage. 27

Here, there is evidence that the special warranty deed was 

intended by the parties to be security for a loan, as evidenced 

by the loan agreement, record of payments, and the testimony 

of the parties. If the finder of fact determined such was true, 

the deed could be construed as a mortgage, and the finder of 

fact could then conclude that Donald’s purported forgiveness of 

the Loan operated as a relinquishment of his ownership interest 

in the Home. As such, the question of whether the Loan was 

forgiven is a material issue of fact as it affects the determination of title and the outcome of the partition claim. Therefore, 

the district court erred in granting summary judgment in favor 

of Barbara on the issue of partition.

Smith’s Counterclaim

Appellants argue the district court erred in granting summary judgment in favor of Barbara on Smith’s counterclaim, 

wherein he alleged that Barbara had been unjustly enriched 

26 Koehn v. Koehn, 164 Neb. 169, 81 N.W.2d 900 (1957).

27 Id.
- 646 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

because the value of work he performed exceeded the amount 

he was paid. However, Appellants neither assigned nor sufficiently argued this error in their brief. It is a well-settled 

principle that to be considered by an appellate court, an 

alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 28

However, an appellate court may, at its discretion, notice a 

plain error not assigned. 29 Here, we choose to review for plain 

error, but find none. Plain error is error plainly evident from 

the record and of such a nature that to leave it uncorrected 

would result in damage to the integrity, reputation, or fairness 

of the judicial process. 30

[17] Though the record reflects that Smith agreed to work at 

various hourly wages, and that the Humphreys paid him what 

he was owed, Smith nevertheless argued that he should have 

been paid more based on what a contractor would charge for 

the same work. Unjust enrichment claims are viable only in 

limited circumstances, and the terms of an enforceable agreement normally displace any claim of unjust enrichment within 

their reach. 31 Though contract claims supersede unjust enrichment claims, a plaintiff is permitted to allege both, and when 

a plaintiff elects to do so, a court should address the contract 

claim first. 32

We agree with the district court that as a matter of law, 

Smith is precluded from asserting an unjust enrichment claim, 

because it is undisputed that Smith agreed to work at an hourly 

wage and that the Humphreys paid him all amounts due under 

that agreement. Accordingly, we conclude the district court did 

not commit plain error in granting summary judgment in favor 

of Barbara on Smith’s counterclaim.

28 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).

29 In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995).

30 Great Northern Ins. Co., supra note 5.

31 DH-1, LLC v. City of Falls City, 305 Neb. 23, 938 N.W.2d 319 (2020).

32 Id.
- 647 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

HUMPHREY v. SMITH

Cite as 311 Neb. 632

Barbara’s Unjust Enrichment Claim

[18] In her brief, Barbara argues the court erred in denying her motion for summary judgment with respect to her 

unjust enrichment claim. In particular, Barbara contends that 

Appellants have been unjustly enriched by residing in the 

Home without paying rent. However, Barbara has not filed a 

cross-appeal, and, generally, an appellee may not question a 

portion of a judgment at issue on appeal unless the appellee 

properly raises the issue by filing a cross-appeal. 33 Moreover, 

the denial of a motion for summary judgment is typically 

an interlocutory order rather than a final order and thus not 

immediately appealable. 34 Accordingly, we decline to consider 

this argument.

CONCLUSION

The portion of the district court’s order granting summary 

judgment as to Barbara’s partition claim is reversed and the 

cause is remanded with directions consistent with this opinion. 

In all other respects, the district court’s order is affirmed.

Affirmed in part, and in part reversed 

and remanded with directions. 

33 Osmond State Bank v. Uecker Grain, 227 Neb. 636, 419 N.W.2d 518 

(1988).

34 State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 

N.W.2d 664 (2019).