Decisions of the Nebraska Court of Appeals

ABANTE, LLC v. PREMIER FIGHTER 53

Cite as 21 Neb. App. 53

discretion by the sentencing court. This assertion of error 

is meritless.

V. CONCLUSION

We find no merit to Newman’s assertions of error. The district 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 Abante Holdings, LLC, appellant, v. Premier

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 jurisdiction 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 contractual 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 judgment 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 judgment 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. 53

FACTUAL BACKGROUND

This case appears before us for a second time. In its first 

appearance, we dismissed Abante’s appeal for lack of jurisdiction 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 equipment. Abante is a business engaged in screen printing, embroidering, and the sale of promotional products to corporate and 

school clients. At the time of the summary judgment proceedings 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 purpose of funding a merchandise order. The terms for each 

loan, although unwritten, required repayment with 50-percent 

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 payment 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 merchandise, but was used to satisfy Premier Fighter’s outstanding 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 hearing, numerous depositions and exhibits were received in evidence. On February 24, 2011, the district court entered an 

order granting summary judgment in favor of MMAStop, finding 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. 53

ASSIGNMENT OF ERROR

Abante assigns, summarized and restated, that the district 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 litigation; (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 conclude 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. 53

and 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 possession 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 person 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 enrichment 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 conclude 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 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. Id.

First, there is no dispute in the facts regarding the transactions 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 principal 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 fraudulent conduct at this point.

Next, the evidence adduced by MMAStop regarding payment 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. 53

was 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 overpayment 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 payment. 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 restitution to the third party if it is later discovered that 

the third party had no responsibility to make the payment 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 performed. 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 authority 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 bankruptcy 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. 63

As 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 correct 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 Interest of Aaliyah M. et al., 

children under 18 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 termination 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.