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OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD

Cite as 30 Neb. App. 335

Ogallala Livestock Auction Market, Inc., 

a Nebraska corporation, appellant, v. 

Charles D. Leonard, doing business 

as Leonard Cattle Company, and 

Pinnacle Bank, appellees.

___ N.W.2d ___

Filed November 2, 2021. No. A-20-772.

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court 

reviews a district court’s order granting a motion to dismiss de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss 

for failure to state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face. In cases in which a plaintiff 

does not or cannot allege specific facts showing a necessary element, the 

factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that 

discovery will reveal evidence of the element or claim.

3. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an 

order dismissing a complaint, an appellate court accepts as true all facts 

which are well pled and the proper and reasonable inferences of law and 

fact which may be drawn therefrom, but not the plaintiff’s conclusion.

4. Torts: Conversion: Property: Words and Phrases. Tortious conversion is any distinct act of dominion wrongfully asserted over another’s 

property in denial of or inconsistent with that person’s rights.

5. Banks and Banking: Words and Phrases. A deposit of funds in a bank 

to the credit of the depositor ordinarily is termed a “general deposit,” 

and in such cases, the title to the funds deposited passes to the bank, 

and the relation of debtor and creditor exists between the bank and 

the depositor.

Nebraska Supreme Court Online Library

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

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6. Banks and Banking: Presumptions. The presumption is that a bank 

deposit made in the usual course of business is a general deposit and not 

a special or trust deposit.

7. Banks and Banking: Property: Words and Phrases. Special deposits 

occur where the property, securities, or funds are left with the bank for 

safekeeping only, and the specific property or fund is to be returned to 

the depositor.

8. Banks and Banking: Bailment. In the case of special deposits, the 

bank is a mere bailee, and the title to the deposit does not pass to the 

bank but remains in the depositor.

9. Banks and Banking: Words and Phrases. Deposits made for a specific 

purpose occur where a fund is deposited in a bank for the purpose of 

paying a specific obligation.

10. Restitution: Unjust Enrichment. To recover under a theory of unjust 

enrichment, the plaintiff must allege facts that the law of restitution 

would recognize as unjust enrichment.

11. Unjust Enrichment: Words and Phrases. Unjust enrichment means 

a transfer of a benefit without adequate legal ground. It results from a 

transaction that the law treats as ineffective to work a conclusive alteration in ownership rights.

12. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

13. Rules of the Supreme Court: Appeal and Error. When a brief of 

an appellee fails to present a proper cross-appeal pursuant to Neb. Ct. 

R. App. P. § 2-109 (rev. 2014), an appellate court declines to consider 

its merits.

Appeal from the District Court for Keith County: Richard 

A. Birch, Judge. Affirmed in part, and in part reversed and 

remanded for further proceedings.

James R. Korth, of Reynolds, Korth & Samuelson, P.C., 

L.L.O., for appellant.

T. Randall Wright and Nicholas A. Buda, of Baird Holm, 

L.L.P., for appellee Pinnacle Bank.

Riedmann, Bishop, and Arterburn, Judges.
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Cite as 30 Neb. App. 335

Riedmann, Judge.

INTRODUCTION

Ogallala Livestock Auction Market, Inc. (Ogallala), appeals 

the order of the district court for Keith County which dismissed 

its second amended complaint for failing to state a claim 

upon which relief could be granted. Pinnacle Bank (Pinnacle) 

attempts to cross-appeal. For the reasons that follow, we affirm 

in part, and in part reverse and remand the cause for further 

proceedings.

STATEMENT OF FACTS

Ogallala asserts in its second amended complaint the following facts: Charles D. Leonard worked as a cattle and 

livestock broker, whereby he purchased cattle and other livestock for third-party buyers on a commission basis. He was 

a longtime banking customer of Pinnacle and maintained a 

bank account with Pinnacle for his cattle business that was 

referred to as “Account 161.” Account 161 consistently had a 

negative balance due to the manner in which Leonard operated 

his business. Generally, Leonard would draw checks upon a 

negative balance in Account 161 for the purchase of cattle, and 

when presented with the checks, Pinnacle would communicate 

with Leonard in order to verify that Leonard was anticipating 

receiving deposits in an amount sufficient to cover the checks 

he had written. After Leonard would verify the expected deposits, Pinnacle would honor the checks Leonard had written, 

sometimes doing so prior to receiving the anticipated deposits. By allowing Leonard’s checking account to remain open 

despite a negative balance, Pinnacle assessed fees and interest 

to Account 161 of tens of thousands of dollars.

In 2015, Leonard contracted with certain third-party buyers 

for the purchase of cattle. He ultimately purchased 1,584 head 

of cattle from Ogallala and delivered them to the separate buyers. To cover the cost of the cattle, Leonard drafted three checks 

to Ogallala drawn on Account 161 totaling $2,924,586.22.
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Around the same time, five deposits were made into Account 

161 as payments to Leonard from the third-party buyers. Three 

of the deposits were checks that Leonard personally deposited 

into the account, and two were wire transfers from the thirdparty buyers.

When Ogallala presented the checks from Leonard to 

Pinnacle for payment, Pinnacle dishonored the checks. Instead 

of clearing the checks, Pinnacle utilized the deposited funds 

to set off the outstanding fees and interest Leonard owed on 

Account 161. Thereafter, Leonard failed to make payment to 

Ogallala or return the cattle.

Accordingly, Ogallala commenced this action and initially 

named Leonard, doing business as Leonard Cattle Company, 

and Pinnacle as defendants. Leonard subsequently filed a 

suggestion of bankruptcy and entered into a stipulation with 

Ogallala whereby Leonard would remain in this case as a necessary party only. Ogallala then filed an amended complaint, 

which asserted claims solely against Pinnacle. Pinnacle filed 

a motion to dismiss for failure to state a claim upon which 

relief could be granted. The district court held a hearing on 

the matter and issued an order, acknowledging that it initially 

intended to grant the motion to dismiss. However, after further 

review of the amended complaint and legal standards, the district court concluded that “while [Ogallala] may be grasping 

at straws[,] there might be one straw left.” It therefore denied 

Pinnacle’s motion to dismiss and allowed Ogallala to amend 

its complaint.

Thereafter, Ogallala filed a second amended complaint, the 

operative complaint, which asserted four “causes of action” 

against Pinnacle. Pinnacle, again, moved to dismiss the complaint for failing to state a cognizable claim for relief. The 

district court ultimately agreed, concluding that the operative complaint did not allege any legal basis that would give 

Ogallala a cause of action against Pinnacle regarding its dishonor of the checks that Leonard had written on Account 161. 

Therefore, because the complaint did not allege sufficient 
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facts, accepted as true, to state a claim for relief that was 

plausible on its face, nor did the factual allegations raise a 

reasonable expectation that discovery would reveal evidence 

of a claim, the district court dismissed the second amended 

complaint without prejudice. Ogallala appeals, and Pinnacle 

attempts to cross-appeal.

ASSIGNMENTS OF ERROR

Ogallala assigns that the district court erred in granting 

Pinnacle’s motion to dismiss for failure to state a claim.

In its attempted cross-appeal, Pinnacle assigns that the district court erred in dismissing the amended complaint without 

prejudice instead of with prejudice.

STANDARD OF REVIEW

[1] An appellate court reviews a district court’s order granting a motion to dismiss de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party. Chaney v. Evnen, 307 Neb. 512, 

949 N.W.2d 761 (2020).

ANALYSIS

[2,3] Ogallala assigns that the district court erred in granting Pinnacle’s motion to dismiss and finding that the operative 

complaint failed to state a claim upon which relief could be 

granted. To prevail against a motion to dismiss for failure to 

state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face. Id. In cases in 

which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, 

are nonetheless plausible if they suggest the existence of the 

element and raise a reasonable expectation that discovery will 

reveal evidence of the element or claim. Id. When reviewing 

an order dismissing a complaint, an appellate court accepts as 

true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, 

but not the plaintiff’s conclusion. Id. For purposes of a motion 
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to dismiss, a court is not obliged to accept as true a legal conclusion couched as a factual allegation, and threadbare recitals 

of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.

Claim for Conversion.

[4] The operative complaint first asserts a cause of action for 

conversion. Tortious conversion is any distinct act of dominion 

wrongfully asserted over another’s property in denial of or 

inconsistent with that person’s rights. Zimmerman v. FirsTier 

Bank, 255 Neb. 410, 585 N.W.2d 445 (1998). The plaintiff 

must establish a right to immediate possession of the property 

at the time of the alleged conversion. Id. In other words, the 

essence of conversion is not acquisition by the wrongdoer, but 

the act of depriving the owner wrongfully of the property. Id. 

Thus, in order to state a cause of action for its claim for conversion here, Ogallala was required to allege sufficient facts 

which would establish that it was the owner of the property it 

alleges Pinnacle converted, which was the funds deposited into 

Account 161.

Pinnacle generally relies on Galyen Petroleum Co. v. Hixson, 

213 Neb. 683, 331 N.W.2d 1 (1983), to argue that Ogallala’s 

complaint fails to state a claim for conversion, because Ogallala 

has no right in funds represented by a check and no standing 

to sue the drawee bank, Pinnacle, on a dishonored check. In 

Galyen Petroleum Co., the plaintiff sued the drawer of the 

check and the drawee bank to recover on three checks presented to the bank, upon which payment was refused. The 

drawer of the check was dismissed from the action after filing 

for bankruptcy. The trial court entered summary judgment for 

the bank. On appeal, the Nebraska Supreme Court relied in 

part on a section of Nebraska’s Uniform Commercial Code 

now codified at Neb. U.C.C. § 3-408 (Reissue 2020), which 

provides that a check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee 

available for its payment and that the drawee is not liable on 
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the instrument until the drawee accepts it. The Supreme Court 

also iterated:

“‘[A] check, of itself, and in the absence of special circumstances, is neither a legal nor an equitable assignment 

or appropriation of a corresponding amount of the drawer’s funds in the hands of the drawee, and that therefore, 

in and of itself, it gives the holder of the check no right of 

action against the drawee and no valid claim to the fund 

of the drawer in its hands, even though the drawer has on 

deposit sufficient funds to pay it. It creates no lien on the 

money which the holder can enforce against the bank.’”

Galyen Petroleum Co. v. Hixson, 213 Neb. at 685, 331 N.W.2d 

at 2-3. Finding that no special circumstances or agreements 

existed in that case, the Supreme Court affirmed the entry of 

summary judgment, holding that the plaintiff had no standing 

or cause of action against the bank.

The facts of Galyen Petroleum Co. are distinguishable from 

the present case, however, because there, the plaintiff did not 

allege any “special circumstances” that would create an obligation on the part of the bank to the holder of the check. In 

its second amended complaint, Ogallala pled facts attempting 

to show an ownership interest in the funds, as set forth more 

fully below.

[5,6] As explained above, in order to state a claim for conversion here, Ogallala was required to allege sufficient facts 

that would establish that it had an ownership interest in the 

funds deposited into Account 161. A deposit of funds in a bank 

to the credit of the depositor ordinarily is termed a “general 

deposit.” State, ex rel. Good, v. Platte Valley State Bank, 130 

Neb. 222, 264 N.W. 421 (1936). In such cases, the title to the 

funds deposited passes to the bank, and the relation of debtor 

and creditor exists between the bank and the depositor. Id. The 

presumption is that a bank deposit made in the usual course of 

business is a general deposit and not a special or trust deposit. 

See Glass v. Nebraska State Bank, 175 Neb. 673, 122 N.W.2d 

882 (1963).
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[7,8] Ogallala recognizes that if the deposits at issue here 

were general deposits, title to the funds passed to Pinnacle, and 

thus, it had no ownership interest in the funds, which would 

defeat its conversion claim. Ogallala asserts, however, that the 

deposits made into Account 161 were an exception to the general deposit rule in that they were special deposits or deposits 

for a specific purpose. The Supreme Court has articulated that 

special deposits occur where the property, securities, or funds 

are left with the bank for safekeeping only, and the specific 

property or fund is to be returned to the depositor. State, ex rel. 

Good, v. Platte Valley State Bank, supra. In such case, the bank 

is a mere bailee. Id. The title to the deposit does not pass to the 

bank but remains in the depositor. Id.

As the Supreme Court outlined in State, ex. rel. Good, v. 

Platte Valley State Bank, with regard to special deposits, title to 

the funds does not pass to the bank but remains in the depositor, 

and the funds are to be returned to the depositor. A depositor 

is defined as one who delivers to or leaves with a bank money 

subject to his or her order, either upon time deposit or subject 

to check, or, alternatively, someone who makes a deposit. 

Union Life & Accident Ins. Co. v. American Surety Co., 113 

Neb. 300, 203 N.W. 172 (1925); Black’s Law Dictionary 554 

(11th ed. 2019). Here, Ogallala was not a depositor, having 

made no deposits into Account 161; therefore, it cannot establish ownership of the funds in order to support its conversion 

claim on the basis of a special deposit.

[9] With respect to deposits made for a specific purpose, 

this occurs where a fund is deposited in a bank for the purpose of paying a specific obligation. State, ex rel. Good, v. 

Platte Valley State Bank, supra. The burden is on the claimant 

to show that the deposit was received by the bank with the 

express or clearly implied agreement that it should be kept 

separate from the general funds of the bank and that it should 

remain intact. Glass v. Nebraska State Bank, supra. In the case 

of a deposit for a specific purpose, the bank acts as the agent 

of the depositor, and if the bank should fail to apply the 
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deposit as directed, or should misapply it, it may be recovered 

as a trust deposit. State, ex rel. Good, v. Platte Valley State 

Bank, supra.

As an exception to the general rule regarding general 

deposits, which allows a bank to apply a deposit made by a 

customer indebted to the bank in payment of an overdraft or 

other indebtedness, if the bank has knowledge of the trust 

relation, it will be liable for a conversion of the fund in 

case it applies it in satisfaction of its own indebtedness. See 

Blanchette v. Keith Cty. Bank & Trust Co., 231 Neb. 628, 437 

N.W.2d 488 (1989). In other words, a bank may not set off 

funds in a depositor’s account in payment of the depositor’s 

indebtedness to the bank when the bank knows or should 

know that the funds being set off belong to another. Id. A bank 

that appropriates a deposit made by a customer to reduce his 

or her indebtedness due the bank, knowing the deposit, or a 

part thereof, to be a trust fund, is liable to the true owner for 

a conversion of his money, and an action at law to recover the 

amount can be maintained. Bliss v. Continental Nat. Bank, 120 

Neb. 568, 234 N.W. 400 (1931).

The complaint here alleges that Leonard intended the deposited funds to be used specifically to provide payment to 

Ogallala; that Leonard and Pinnacle intended and agreed, either 

expressly or by implication, that the deposited funds were to 

be used specifically to provide payment to Ogallala; and that 

Pinnacle knew or should have known that the deposited funds 

were to be used specifically to provide payment to Ogallala. 

In other words, the complaint alleges that the deposits were 

deposits for a specific purpose.

The district court’s order dismissing the operative complaint 

found that despite the new facts alleged by Ogallala, the complaint failed to allege any legal basis that would give Ogallala 

a cause of action against Pinnacle regarding its dishonor of 

the checks that Leonard wrote on Account 161. The court 

observed that Nebraska law is well established that a bank 

may set off funds of a depositor to pay a debt due the bank, 
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citing Miracle Hills Ctr. Ltd. Part. v. Nebraska Nat. Bank, 230 

Neb. 899, 434 N.W.2d 304 (1989). However, as stated above, 

the general rule is inapplicable when deposits are made for 

a specific purpose. The district court failed to recognize this 

exception.

In its brief, Pinnacle implicitly recognizes the deposit for 

a specific purpose exception, stating, “Absent special instructions from a depositor or an agreement between the depositor 

and the bank, a bank is not obligated to segregate deposits from 

the general funds of the bank.” Brief for appellee Pinnacle at 

14 (emphasis supplied). However, it argues that the factual 

allegations here are too conclusory and insufficient to defeat 

its motion to dismiss for failure to state a claim. It is true that 

for purposes of a motion to dismiss, threadbare recitals of the 

elements of a cause of action, supported by mere conclusory 

statements, do not suffice. See Central Neb. Pub. Power Dist. 

v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010). 

A court is not obliged to accept as true a legal conclusion 

couched as a factual allegation. Id. A pleader’s obligation to 

provide the grounds of its entitlement to relief requires more 

than labels and conclusions. Id. Nor does a pleading suffice if 

it tenders naked assertion, devoid of further factual enhancement. Id.

However, Nebraska is a notice pleading jurisdiction. See 

Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 

(2018). Civil actions are controlled by a liberal pleading regime; 

a party is only required to set forth a short and plain statement 

of the claim showing that the pleader is entitled to relief and is 

not required to plead legal theories or cite appropriate statutes 

so long as the pleading gives fair notice of the claims asserted. 

Id. The rationale for this liberal notice pleading standard in 

civil actions is that when a party has a valid claim, he or she 

should recover on it regardless of a failure to perceive the true 

basis of the claim at the pleading stage. Id.

In Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 

(2010), overruled on other grounds, Davis v. State, 297 Neb. 
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955, 902 N.W.2d 165 (2017), the Supreme Court considered 

revisions to the federal standard for determining whether a 

complaint could survive a motion to dismiss for failure to state 

a claim that the U.S. Supreme Court had recently articulated. 

See, Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. 

Ed. 2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). After analyzing the federal revisions as well as Nebraska’s pleading 

requirements, the Nebraska Supreme Court held:

[T]o prevail against a motion to dismiss for failure to 

state a claim, a plaintiff must allege sufficient facts, 

accepted as true, to state a claim to relief that is plausible 

on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the 

factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a 

reasonable expectation that discovery will reveal evidence 

of the element or claim.

Doe v. Board of Regents, 280 Neb. at 506, 788 N.W.2d at 

278. Although the allegation regarding Leonard and Pinnacle’s 

agreement that the deposits were to be used to provide payment 

to Ogallala is conclusory, at this stage of litigation, Ogallala 

would not yet have additional details of an agreement between 

two other parties or have been able to acquire the information Pinnacle had or should have had regarding the intent of 

the deposits. Thus, at this time, Ogallala cannot allege more 

specific facts than it did showing a necessary element. And the 

allegations that are in the second amended complaint, when 

taken as true, are plausible because they suggest the existence 

of an agreement between Leonard and Pinnacle and/or that 

Pinnacle knew or should have known that the purpose of the 

deposits was to cover the checks that Leonard had written to 

Ogallala, and discovery will likely reveal additional evidence 

related to these factual allegations.

Moreover, what qualifies as sufficient evidence to establish 

a deposit for a specific purpose varies throughout Nebraska 
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case law, particularly given the standard that a bank may not 

set off funds when the bank knows or should know that the 

funds being set off belong to another. See Blanchette v. Keith 

Cty. Bank & Trust Co., 231 Neb. 628, 437 N.W.2d 488 (1989). 

For example, in Miracle Hills Ctr. Ltd. Part. v. Nebraska Nat. 

Bank, 230 Neb. 899, 903, 434 N.W.2d 304, 306 (1989), the 

Supreme Court upheld summary judgment in favor of the 

defendant bank, finding that a deposit was a general deposit, 

because the depositor “placed no limitation on the deposit and 

gave no indication to the bank that the deposit was to be used 

solely for payments on the [plaintiff’s] project.”

In Allen Dudley & Co. v. First Nat. Bank, 122 Neb. 443, 

240 N.W. 522 (1932), however, the Supreme Court relied on a 

course of conduct to determine that the defendant bank knew 

or should have known that funds deposited into an account 

were for a specific purpose. The court concluded that in light 

of testimony that the account holder had bought and sold cattle 

the same way for 2 years through the bank, it could not be said 

that the defendant bank did not have knowledge of the account 

holder’s manner of doing business. Thus, when two “sight 

drafts” were received, the bank knew or should have known 

that the deposits were drawn on the plaintiff against shipments 

of cattle the account owner had made; that the account owner 

had bought cattle from various parties, which the record showed 

he had been in the habit of doing for a year or more; and that 

there were checks outstanding, representing the purchase price 

of the cattle, which were to be paid out of the proceeds of these 

deposits. Id. at 448, 240 N.W.2d at 524.

In the present case, in addition to the allegations detailed 

above, the complaint also alleges a course of conduct from 

which it could be found that Pinnacle knew or should have 

known that the deposits were for a specific purpose. The complaint asserts that Leonard was a longtime Pinnacle customer 

and that Pinnacle was aware that Leonard primarily used 

Account 161 to operate his cattle business. Additionally, the 

complaint alleges that during September and October 2015, 
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due to daily conversations between Leonard and agents of 

Pinnacle, Pinnacle was aware of the nature of Leonard’s business operation and knew the manner in which he conducted his 

sales. The complaint asserts Pinnacle specifically knew during 

that timeframe that Leonard was commissioned by third-party 

cattle buyers, that funds deposited into Leonard’s account were 

from those buyers, and that the checks written by Leonard from 

Account 161 were for the purpose of purchasing cattle from 

cattle sellers such as Ogallala.

The complaint further alleges that prior to September 29, 

2015, whenever Pinnacle was presented with checks written 

by Leonard and drawn on a negative account balance, Pinnacle 

would communicate with Leonard to verify he was expecting 

deposits in amounts sufficient to cover the checks written and 

that Pinnacle permitted the manner in which Leonard utilized 

Account 161. With respect to the checks written to Ogallala, 

the complaint asserts that in each instance, Leonard was able 

to verify for Pinnacle he was expecting deposits sufficient to 

cover the checks written, and that in fact, deposits equal to 

or in excess of the amounts of the checks were deposited into 

Account 161. Accepting these allegations as true, we conclude 

that the complaint is sufficient to state a plausible claim that 

the deposits were deposits for a specific purpose, and thus, 

Pinnacle, having failed to apply the funds as directed, could be 

held liable for conversion.

We caution that we are not opining on the merits of this 

claim or the ultimate outcome of the case. We are simply finding, upon our de novo review of the record, that the allegations 

in the complaint were sufficient to survive a motion to dismiss 

for failure to state a claim. We therefore reverse the district 

court’s order dismissing the cause of action for conversion.

Claim for Unjust Enrichment.

[10,11] In addition to the conversion claim, the complaint 

also asserts a claim for unjust enrichment. To recover under 

a theory of unjust enrichment, the plaintiff must allege facts 
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that the law of restitution would recognize as unjust enrichment. City of Scottsbluff v. Waste Connections of Neb., 282 

Neb. 848, 809 N.W.2d 725 (2011). Unjust enrichment is a 

flexible concept. Id. But it is a bedrock principle of restitution 

that unjust enrichment means a transfer of a benefit without 

adequate legal ground. Id. It results from a transaction that 

the law treats as ineffective to work a conclusive alteration in 

ownership rights. Id.

Applying those guidelines here, Ogallala must allege facts 

showing that Pinnacle transferred a benefit, the deposited funds, 

without a right to the funds or, stated differently, Ogallala must 

allege facts that establish it, rather than Pinnacle, had a right 

to the deposited funds. In order to establish a right to the 

deposited funds, Ogallala was required to allege facts showing that the funds were deposits for a specific purpose. As 

we concluded above, it did so. We therefore conclude that the 

complaint alleged sufficient facts to state a claim for unjust 

enrichment, and we reverse the district court’s dismissal of 

that claim.

We again caution that we express no opinion as to the ultimate merits of the unjust enrichment claim. We also observe 

that although we have determined that the complaint alleged 

sufficient facts to state claims for conversion and unjust enrichment, should Ogallala ultimately prove these claims, it would 

not be entitled to recover on both of these theories. A party 

may not have double recovery for a single injury, or be made 

more than whole by compensation which exceeds the actual 

damages sustained. deNourie & Yost Homes v. Frost, 295 Neb. 

912, 893 N.W.2d 669 (2017).

Claim for Constructive Trust.

[12] Related to its unjust enrichment claim, Ogallala 

requested the imposition of a constructive trust upon either the 

actual cattle or the deposited funds. However, Ogallala fails 

to articulate an argument in its brief on this issue; rather, it 

simply states in an argument heading that “[Ogallala’s] causes 
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of action for unjust enrichment and for imposition of a constructive trust state claims upon which relief may be granted.” 

Brief for appellant at 18. To be considered by an appellate 

court, an alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

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

Based upon Ogallala’s failure to do so, we decline to address 

the issue.

Claim for Declaratory Judgment.

The complaint alleges a final cause of action seeking a 

declaratory judgment, which claim the district court also dismissed. Ogallala does not argue in its brief that the decision 

concerning this claim was error, however, and we therefore do 

not address it. See Diamond v. State, supra.

Attempted Cross-Appeal.

[13] Pinnacle attempts to raise a cross-appeal related to the 

district court’s dismissal of the second amended complaint 

without prejudice. At the time Pinnacle submitted its brief, 

Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014) provided:

Where the brief of appellee presents a cross-appeal, it 

shall be noted on the cover of the brief and it shall be set 

forth in a separate division of the brief. This division shall 

be headed “Brief on Cross-Appeal” and shall be prepared 

in the same manner and under the same rules as the brief 

of appellant.

See, also, Krejci v. Krejci, 304 Neb. 302, 306, 934 N.W.2d 179, 

183 (2019) (stating “the cross-appeal section of an appellate 

brief must set forth a separate title page, a table of contents, a 

statement of the case, assigned errors, propositions of law, and 

a statement of the facts”). But see Cornwell v. Cornwell, 309 

Neb. 156, 959 N.W.2d 243 (2021) (clarifying that § 2-109(D)(4) 

does not require separate title page, but, rather, requires crossappeal to be noted on cover of brief). When a brief of an appellee fails to present a proper cross-appeal pursuant to § 2-109, 

we decline to consider its merits. Krejci v. Krejci, supra.
- 350 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

OGALLALA LIVESTOCK AUCTION MARKET v. LEONARD

Cite as 30 Neb. App. 335

Here, Pinnacle’s brief does not contain a notation on the 

cover of the brief that it contains a cross-appeal, nor does the 

cross-appeal contain a separate title page upon which such 

designation appears. Similarly, as in Krejci, the cross-appeal 

section contains no table of contents for the cross-appeal. In 

Krejci, the Supreme Court declined to consider the merits of 

the cross-appeal as being noncompliant with our rules. For the 

same reasons, we decline to address the merits of Pinnacle’s 

cross-appeal.

CONCLUSION

Accepting as true all facts that are well pled and the proper 

and reasonable inferences of law and fact that may be drawn 

therefrom, we conclude that the second amended complaint 

states a plausible claim for relief for conversion and unjust 

enrichment. We therefore reverse the dismissal of these two 

claims and remand the cause for further proceedings. As to the 

dismissal of the claims for a constructive trust and a declaratory judgment, we affirm the court’s order for the reasons 

stated above.

Affirmed in part, and in part reversed and 

remanded for further proceedings.