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SCHREIBER BROS. HOG CO. V. SCHREIBE

Cite as 312 Neb. 707

Schreiber Brothers Hog Company, LLC, 

a Nebraska limited liability company, 

and Steven Schreiber, an individual 

member, appellees, v. Jerald 

Schreiber, an individual 

member, appellant.

___ N.W.2d___

Filed October 28, 2022. No. S-21-570.

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not 

involve a factual dispute is determined by an appellate court as a matter 

of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

3. Jurisdiction: Appeal and Error. Appellate courts have an independent 

obligation to ensure they have appellate jurisdiction.

4. Actions. A special proceeding includes every special statutory remedy 

that is not itself an action.

5. Actions: Words and Phrases. An action is any proceeding in a court by 

which a party prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong involving and 

requiring the pleadings, process, and procedure provided by statute and 

ending in a judgment.

6. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

7. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as by diminishing 

a claim or defense that was available to an appellant before the order 

from which an appeal is taken.

8. Final Orders. It is not enough that the right itself be substantial; the 

effect of the order on that right must also be substantial.

Nebraska Supreme Court Online Library

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

12/16/2022 01:05 AM CST
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9. Final Orders: Appeal and Error. A substantial right is not affected 

when that right can be effectively vindicated in an appeal from the final 

judgment.

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. Contracts: Unjust Enrichment. One who is free from fault cannot be 

held to be unjustly enriched merely because one has chosen to exercise 

a contractual or legal right.

12. ____: ____. The doctrine of unjust enrichment is recognized only in the 

absence of an agreement between the parties.

Appeal from the District Court for Platte County: Robert R. 

Steinke, Judge. Appeal dismissed in part, and in part reversed 

and remanded with directions.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellant.

Jonathan M. Brown, of Walentine O’Toole, L.L.P., for 

appellees.

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

Papik, and Freudenberg, JJ.

Papik, J.

After Steven Schreiber filed a complaint asking for the dissolution of the limited liability company he owned in equal 

shares with his brother, Jerald Schreiber, the district court 

ordered dissolution and directed a receiver to liquidate the 

company’s assets. Those assets included two buildings owned 

by the company but located on land owned by Jerald. Jerald 

made the only offer to purchase the buildings, but Steven 

contended that if the buildings were sold to Jerald at the 

price offered, Jerald would be unjustly enriched. The parties 

later agreed that the district court should order the receiver to 

accept Jerald’s offer, but that Steven and the company should 

be allowed to continue to pursue a claim of unjust enrichment. Following a trial, the district court found that Jerald 
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was unjustly enriched and ordered him to pay an additional 

$400,184 to the company. The district court also denied a 

motion filed by Jerald asking the district court to provide further directions to the receiver.

In Jerald’s appeal of these rulings, we find that we lack 

jurisdiction to review the order denying the motion for further 

directions but that the district court erred in its unjust enrichment finding. We therefore dismiss in part, and in part reverse 

and remand with directions.

I. BACKGROUND

1. Dissolution Action Filed; 

Receiver Appointed

Jerald and Steven formed the Schreiber Brothers Hog 

Company, LLC, in 2011. They each owned a 50-percent interest in the company and managed it together for a number 

of years.

This case began when Steven commenced an action in the 

district court on behalf of the company and himself seeking the 

judicial dissolution of the company pursuant to Neb. Rev. Stat. 

§ 21-147(a)(5) (Cum. Supp. 2021). Jerald eventually agreed 

that the company should be dissolved and that a receiver 

should be appointed to wind up the company’s affairs. The 

district court subsequently ordered dissolution and appointed a 

receiver to wind up the company’s activities.

2. Complaint Amended to Raise Claims 

Regarding Hog Buildings

After the receiver had begun his work and liquidated most of 

the company’s assets, Steven and the company obtained leave 

to file an amended complaint. The amended complaint added 

several additional claims for relief, all of which pertained to 

two buildings used in the company’s hog production business which the receiver had not yet sold. The two buildings 

are referred to by the parties as a “finishing building” and a 

“nursery.” All agree that these buildings were owned by the 

company, but located on land owned only by Jerald.
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In the amended complaint, Steven and the company requested 

that the district court quiet title to the real property upon which 

the buildings were located in the company’s name on the basis 

of adverse possession. Alternatively, they requested that the 

district court grant the company a prescriptive easement or 

easement by necessity to allow it and any successors in interest 

or grantees to enter the real property upon which the buildings 

were located as the company had during its operation. As a 

final alternative, Steven and the company alleged that if they 

did not obtain any of the previously described relief, the company was entitled to a judgment for unjust enrichment against 

Jerald in the amount of the fair market value of the property. 

The amended complaint alleged that an appraisal obtained by 

the receiver estimated the market value of the buildings to be 

$450,000.

After conducting some discovery, Steven and the company 

voluntarily dismissed their claims for adverse possession, prescriptive easement, and easement by necessity.

3. Hearing on Disposition of 

Hog Buildings

Before adjudicating the remaining claim of unjust enrichment, the district court held a hearing regarding what action the 

receiver should take as to the buildings. Prior to the hearing, 

counsel for Steven and the company argued that the district 

court should either enter an order declaring the buildings the 

“de facto assets of Jerald” and ordering him to pay for their 

reasonable value or order that the buildings be dismantled. 

Counsel for Jerald argued that the buildings should be sold to 

the highest bidder.

The district court received evidence at the hearing, including 

testimony from Steven, Jerald, and the receiver. The evidence 

established that when the buildings were constructed in 1994 

and 1997, the company was not yet formed, and that Jerald and 

Steven were working together as part of a general partnership. 

Jerald testified that at the time the buildings were built on his 
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property, Steven knew that the buildings were being built on 

land that Jerald owned.

After the formation of the company, the buildings came to 

be owned by the company, but Jerald continued to own the real 

property where they were located. The receiver testified that he 

attempted to sell the buildings along with the rest of the company’s assets, but that many parties who made initial inquiries 

about purchasing the buildings lost interest upon learning that 

the land upon which the buildings were located was not for 

sale and that there was no legal right of ingress and egress to 

access the buildings. The receiver testified that Jerald made 

the only offer to purchase the buildings and that he offered to 

purchase them for their assessed value, which was $18,000. 

Jerald confirmed that he was willing to purchase the buildings 

for $18,000. He also acknowledged that he was not willing to 

grant an easement to allow a buyer of the buildings to access 

them. He testified that he would not want to have “someone 

else going in and out of there any time of the day or night on 

their own accord.”

An appraiser hired by the receiver also testified. The 

appraiser testified that in his opinion, the buildings were 

worth $450,000. He testified that he formed this opinion 

by calculating the difference between the value of the land 

together with the buildings and the value of the land without 

the buildings. The district court also received evidence about 

whether or not the buildings were operational. On this point, 

there was some disagreement by the witnesses. The receiver 

described the buildings as operational, but Jerald and his son 

testified the buildings were in a state of significant disrepair 

from nonuse, termination of utilities, frost and thaw cycles, 

and condensation damage.

At the conclusion of the hearing, the parties agreed that they 

would submit written briefs to the district court and that the 

district court would take the matter under advisement. The district court also scheduled a trial on the remaining unjust enrichment claim asserted by Steven and the company.
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4. Trial on Unjust Enrichment Claim

On the day the unjust enrichment claim was scheduled to 

be tried, the district court stated on the record that the parties 

had reached an agreement that the receiver should be directed 

to accept Jerald’s offer to purchase the buildings for $18,000, 

“with the understanding that nothing with respect to that stipulation of the parties would be construed as a final determination on the [unjust enrichment claim,] which [Steven and the 

company] then would pursue.” The district court later entered 

a written order to the same effect.

With respect to the district court’s consideration of the 

unjust enrichment claim, the parties agreed that the district 

court could consider all evidence and testimony offered at the 

prior hearing regarding the disposition of the buildings. Jerald 

and Steven also provided additional limited testimony.

After taking the matter under advisement, the district court 

entered a written order finding that judgment should be entered 

in favor of the company and against Jerald on the unjust 

enrichment claim. The district court relied heavily upon an 

opinion of the Arkansas Court of Appeals, Trickett v. Spann, 

2020 Ark. App. 552, 613 S.W.3d 773 (2020). We discuss this 

case in more detail in the analysis section below.

The district court also found that because the buildings 

could not be sold with a right to ingress and egress, they had 

value only to Jerald. It reasoned that if Jerald were allowed to 

obtain the property for only the price for which he offered to 

purchase them, the company would not receive “reasonable 

compensation” and Jerald would receive a “personal windfall 

to which he is not entitled.”

On the issue of damages, the district court noted some 

of Jerald’s evidence showing that the buildings would need 

repairs before they could be used, but concluded that the 

appraiser’s opinion was the only credible evidence of valuation. The district court found that the reasonable value of the 

buildings was just over $418,000 and ordered Jerald to pay the 

difference between that amount and the $18,000 he previously 
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Cite as 312 Neb. 707

tendered to purchase the buildings. Because the buildings were 

owned by the company, the district court dismissed Steven’s 

claim for unjust enrichment.

5. Motion for Further Directions

After the receiver was appointed, Jerald filed a motion pursuant to Neb. Rev. Stat. § 25-1087 (Reissue 2016) requesting 

that the district court enter an order providing further directions to the receiver. Among other things, Jerald requested that 

the district court order the receiver to pay certain bills Jerald 

claims were incurred by the company, both before and after the 

appointment of the receiver. The motion alleged that Jerald had 

requested that the receiver pay the bills and that the receiver 

had refused.

The district court held a hearing on the motion for further 

directions on the same day it held trial on the unjust enrichment claim. At the hearing, Jerald testified regarding several 

bills he contended were incurred by the company, but the 

receiver had refused to pay. The receiver also testified. When 

asked by Jerald’s counsel about several of the bills for which 

Jerald sought court direction to pay, the receiver testified that 

he had not yet paid the bills, but he would consider paying 

them. With respect to other bills, he testified that he did not 

believe they were legitimate expenses of the company. In 

response to a question about whether a bill should be paid, 

the receiver stated that he had a “budget problem,” which 

we understand to refer to the fact that the amount of the bills 

Jerald was asking the district court to direct the receiver to pay 

exceeded the funds held by the receiver.

In the same document in which the district court explained 

its unjust enrichment finding, it denied the relief requested in 

the motion for further directions without further explanation.

6. Appeal

Jerald filed an appeal within 30 days of the district court’s 

order finding unjust enrichment and denying the motion for 

further directions. We moved the case to our docket.
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II. ASSIGNMENTS OF ERROR

Jerald assigns several errors on appeal, but they can be consolidated and restated as three: He contends that the district 

court erred (1) in its finding that the company was entitled to 

recover on its unjust enrichment claim, (2) in its calculation 

of the amount that Steven was unjustly enriched, and (3) in its 

denial of Jerald’s motion for further directions regarding the 

payment of bills.

III. STANDARD OF REVIEW

The parties disagree on the standard of review we should 

apply to Jerald’s arguments concerning the unjust enrichment 

judgment. Steven and the company contend that our opinion in 

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

809 N.W.2d 725 (2011), holds that claims of unjust enrichment are actions at law and that thus, we should apply the 

standard of review we would normally apply in reviewing a 

bench trial of a law action, i.e., the court’s factual findings are 

not disturbed unless clearly wrong, but questions of law are 

reviewed independently. Jerald, on the other hand, contends 

that because the unjust enrichment claims were raised in the 

context of an action to dissolve the company and actions to 

dissolve a limited liability company are actions in equity, we 

should apply the standard of review applicable to appeals from 

bench trials of equity actions, i.e., de novo on the record, with 

this court independently resolving both questions of law and 

questions of fact. See Schmid v. Simmons, 311 Neb. 48, 970 

N.W.2d 735 (2022). We find that we need not resolve this dispute as to the standard of review. Jerald’s unjust enrichment 

arguments primarily turn on issues of law, and even under the 

more deferential standard of review urged by Steven and the 

company, we find that the district court’s unjust enrichment 

finding is erroneous.

[1,2] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of 

law. In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 
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(2021). When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s conclusions. Id.

IV. ANALYSIS

1. Appellate Jurisdiction

[3] While the issue of appellate jurisdiction was not initially 

raised by the parties, we have an independent obligation to 

ensure we have appellate jurisdiction. State v. Reames, 308 

Neb. 361, 953 N.W.2d 807 (2021). With that duty in mind, 

we ordered the parties to submit supplemental briefing on 

the issue. We now consider that issue, first as to the denial of 

the motion for further directions and then as to the finding of 

unjust enrichment.

(a) Motion for Further Directions

We begin our analysis of our jurisdiction to review the 

district court’s denial of Jerald’s motion for further directions 

with Neb. Rev. Stat. § 25-1090 (Reissue 2016). That statute 

provides that “[a]ll orders appointing receivers” and “giving 

them further directions” may be appealed. Id. Jerald takes the 

position that because the district court did not give further 

directions but denied his request to do so, this statute does not 

authorize our review. We agree. Jerald argues, however, that 

we have jurisdiction to review the district court’s order because 

it qualifies as a final order under Neb. Rev. Stat. § 25-1902 

(Cum. Supp. 2020). We consider that issue next.

Section 25-1902 currently recognizes four categories of final 

orders. In our view, however, the order denying the motion for 

further directions could fit into only one such category: those 

orders “affecting a substantial right made during a special proceeding.” § 25-1902(1)(b).

[4,5] A special proceeding occurs where the law confers a 

right and authorizes a special application to a court to enforce 

it. See In re Grand Jury of Douglas Cty., 302 Neb. 128, 

922 N.W.2d 226 (2019). A special proceeding includes every 
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special statutory remedy that is not itself an action. See Kremer 

v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538 

(2010). An action is any proceeding in a court by which a party 

prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong involving 

and requiring the pleadings, process, and procedure provided 

by statute and ending in a judgment. In re Grand Jury of 

Douglas Cty., supra. Every other legal proceeding by which a 

remedy is sought by original application to a court is a special 

proceeding. Id.

Applying these rules, we find that once the district court 

granted dissolution and appointed a receiver, a special proceeding commenced. Neb. Rev. Stat. § 21-148(e) (Reissue 

2012) authorizes the district court, on application of a member of a limited liability company (LLC), to “order judicial 

supervision of the winding up of a dissolved [LLC], including 

the appointment of a person to wind up the company’s activities.” Judicial supervision of the winding up an LLC is thus a 

remedy that may be sought by application to a court, but it is 

not an action. Treating judicial supervision of a receivership 

as a special proceeding is also consistent with our precedent. 

In Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013), 

we held that we could review a district court’s determination 

that a receiver could deny a claim for payment of services 

as an action that affected a substantial right during a special 

proceeding.

[6-9] The fact that the order denying the motion for further 

directions was issued in a special proceeding does not, by 

itself, make the order appealable. The order must have also 

affected a substantial right. See § 25-1902(1)(b). A substantial 

right is an essential legal right, not a mere technical right. In 

re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021). A 

substantial right is affected if an order affects the subject matter of the litigation, such as by diminishing a claim or defense 

that was available to an appellant before the order from which 

an appeal is taken. Id. It is not enough that the right itself 
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be substantial; the effect of the order on that right must also 

be substantial. Id. A substantial right is not affected when that 

right can be effectively vindicated in an appeal from the final 

judgment. In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 

535 (2021).

We have approvingly cited a commentator who has suggested that in the context of multifaceted special proceedings 

that are designed to administer the affairs of a person, an order 

that ends a discrete phase of the proceedings affects a substantial right because it finally resolves the issues raised in that 

phase. See id., citing John P. Lenich, What’s So Special About 

Special Proceedings? Making Sense of Nebraska’s Final Order 

Statute, 80 Neb. L. Rev. 239 (2001). We have employed that 

“discrete phase” rubric in a number of probate proceedings. 

See, In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 

(2022); In re Estate of Beltran, supra; In re Estate of Larson, 

supra; In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 

(2012). We have also held that in probate cases, while an order 

ending a discrete phase of the proceeding is appealable, one 

that is merely preliminary to such an order is not. See In re 

Estate of Larson, supra.

Although the judicial supervision of the winding up of an 

LLC is not designed to administer the affairs of a person, it 

can be a multifaceted proceeding that is designed to administer 

the affairs of an LLC. Indeed, it bears substantial similarity to 

a probate proceeding: Probate is the legal process by which 

a deceased person’s debts are paid and assets distributed; the 

judicial supervision of the winding up of an LLC is the legal 

process by which a dissolved LLC’s debts are paid and assets 

distributed. See § 21-148(b). We also note that the Nebraska 

Court of Appeals has previously analyzed whether an order 

entered in a receivership proceeding affected a substantial right 

by applying the discrete phase analysis. See Sutton v. Killham, 

22 Neb. App. 257, 854 N.W.2d 320 (2014). We find it appropriate to apply the discrete phase rubric to orders entered in the 

judicial supervision of the winding up of an LLC.
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Applying that discrete phase rubric, we conclude that the 

order denying the motion for special directions did not end 

a discrete phase of the proceedings and thus did not affect a 

substantial right. In the motion for further directions, Jerald 

sought an order specifically directing the receiver to pay certain expenses. At the hearing on that motion, the receiver’s 

testimony demonstrated that he had not made a final determination of the expenses that he would pay. Indeed, he testified 

that he would consider paying some of the expenses that were 

the subject of Jerald’s motion but that a “budget problem” 

complicated that task.

Given the evidence adduced and the district court’s order, 

contrary to the parties, we do not understand the district court’s 

denial of the motion for further directions to be a final determination that the receiver need not pay the expenses at issue. 

Rather, we understand the district court merely to have determined that additional, specific direction was not necessary at 

that time. Because the district court’s order denying Jerald’s 

motion for further directions did not affect a substantial right 

of Jerald’s, we find that we lack jurisdiction under § 25-1902. 

And because we can discern no other basis of appellate jurisdiction, we dismiss that portion of Jerald’s appeal.

(b) Unjust Enrichment

We now consider whether we have appellate jurisdiction to 

review the district court’s resolution of the unjust enrichment 

claims. We begin our analysis of that question by considering whether this case implicates Neb. Rev. Stat. § 25-1315 

(Reissue 2016). Specifically, we consider whether the fact 

that the judicial supervision of the winding up of the company 

apparently remained ongoing at the time the appeal was filed 

precludes appellate review of the district court’s resolution of 

the unjust enrichment claim under § 25-1315.

Section 25-1315(1) provides, in relevant part:

When more than one claim for relief is presented in an 

action, . . . or when multiple parties are involved, the 
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court may direct the entry of a final judgment as to one or 

more but fewer than all of the claims or parties only upon 

an express determination that there is no just reason for 

delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, 

any order or other form of decision, however designated, 

which adjudicates fewer than all the claims or the rights 

and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties . . . .

As we have recently explained, § 25-1315(1) is implicated 

only when a case presents more than one claim for relief or 

involves multiple parties, and the court enters an order which 

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. See Mann v. Mann, ante p. 

275, 978 N.W.2d 606 (2022). For purposes of determining 

whether a case presents more than one “claim for relief” under 

§ 25-1315(1), we have said the term is not synonymous with 

“issue” or “theory of recovery,” but is instead the equivalent of 

a cause of action. Mann v. Mann, supra.

We find in this circumstance that § 25-1315(1) is not implicated. Although the parties have asserted more than one claim 

for relief during the course of this case, the order adjudicating the unjust enrichment claim did not adjudicate fewer than 

all the remaining claims in the case or leave claims asserted 

against certain parties for future resolution. Steven initially 

asserted a claim for judicial dissolution on behalf of the company, but that claim was resolved when the court ordered 

dissolution. Steven and the company also asserted claims for 

adverse possession, prescriptive easement, and easement by 

necessity, but those claims were involuntarily dismissed. At the 

time the district court decided the unjust enrichment claim, it 

was the only claim remaining in the case.

Because we find that § 25-1315(1) is not implicated, we 

have appellate jurisdiction to review the district court’s order 

resolving the unjust enrichment claim if it satisfies § 25-1902. 

Cf. Mann v. Mann, supra. We find that the order is appealable 
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under § 25-1902, because it affects a substantial right in a special proceeding.

We have already explained our conclusion that the judicial 

supervision of the winding up of the company is a special 

proceeding. We also find that the order resolving the unjust 

enrichment claim was entered in that special proceeding. The 

claim of unjust enrichment arose once the judicial supervision of the winding up process began and Jerald was the only 

interested buyer for the buildings. The parties later agreed 

that the receiver should be directed to sell the buildings to 

Jerald at the price he offered to pay. The unjust enrichment 

claim was then litigated under the theory that the sale to 

Jerald at that price would result in his unjust enrichment. 

The district court’s eventual order found unjust enrichment 

and effectively ordered Jerald to pay additional amounts for 

the buildings. The unjust enrichment claim was inextricably 

bound up within the judicial supervision of the winding up 

of the company. Under these circumstances, we find that the 

order resolving the unjust enrichment claim was entered in a 

special proceeding.

We recognize that a claim for unjust enrichment will, in the 

vast majority of cases, be litigated in an action. After all, it is 

usually a claim that one party prosecutes against another for 

the enforcement, protection, or determination of a right or for 

the redress or prevention of a wrong; is usually decided by way 

of pleadings, process, and procedure provided by statute; and 

usually ends in a judgment. See, e.g., Bloedorn Lumber Co. v. 

Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018). Under these 

assuredly rare circumstances, however, we find that the unjust 

enrichment claim was entered in a special proceeding.

Having determined that the order resolving the unjust enrichment claim was entered in a special proceeding, we return to 

the discrete phase rubric discussed above. Here, we find that 

the order resolving the unjust enrichment claim ended a discrete phase of the proceeding. It ended the phase of the proceeding dedicated to resolving the claims of Steven and the 
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company that Jerald was unjustly enriched by his purchase 

of the buildings and should be required to pay more to the 

company. The district court held a trial on this issue and then 

entered an order determining that Jerald was unjustly enriched 

and ordering him to pay an additional $400,184 for the purchase of the buildings. In this respect, the order is much like 

the order we found appealable in Sutton v. Killham, 285 Neb. 

1, 825 N.W.2d 188 (2013). In that case, we reviewed an order 

of summary judgment finding that a receiver correctly denied 

a claim for payment of services. We see no meaningful difference between the conclusive determination that a party in 

receivership had no liability for a debt in Sutton v. Killham

and the district court’s conclusive determination that a party in 

receivership was owed a debt here.

We also find similarity between this case and In re Estate of 

McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012). We described 

that case as one in which a party sought partition of certain 

real property within a probate proceeding. See id. at 372, 820 

N.W.2d at 874 (“we are presented with the partition of real 

property in an estate proceeding”). The testator left four tracts 

of land to his three daughters, one of whom sought partition 

of the property. The county court found that partition of the 

property should be made and appointed a referee. The referee 

concluded that the real property should be partitioned by sale; 

however, one of the daughters opposed the partition by sale. 

Ultimately, the court ordered partition by sale, and the daughter 

appealed. Before we reached the merits of the case, we considered whether or not we had appellate jurisdiction. We concluded that the circumstances qualified as an order that affected 

a substantial right. We reasoned:

The county court’s order directing the referee to sell the 

property would affect the right of the devisees to receive 

the real estate in kind and would force them to sell their 

interests in the land. The distribution of the real estate is 

a discrete phase of the probate proceedings and would 

finally resolve the issues in that phase of the probate of 
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the estate. It could be months before an appeal from the 

order of confirmation would be finally resolved. In the 

interim, distribution of the assets of the estate would have 

to wait until that phase of the probate was finally resolved 

regarding distribution of the real estate. The sale of the 

real estate would diminish the right of the devisees to 

have the real estate distributed in kind.

Id. at 374, 820 N.W.2d at 876.

Similar reasoning applies in these circumstances. As in In 

re Estate of McKillip, the district court here fully resolved an 

issue presented within a multifaceted proceeding. And, like 

the situation in In re Estate of McKillip, delaying review of 

that finally resolved issue will complicate the resolution of the 

entire proceeding. Here, the question of whether the company’s 

unjust enrichment recovery will stand obviously affects the 

resources the receiver will have available in completing the 

winding up of the company’s affairs.

For these reasons, we find that the order of the district court 

awarding the company an unjust enrichment recovery from 

Jerald affected a substantial right during a special proceeding. 

We turn to the merits of that issue now.

2. Unjust Enrichment Merits

The district court concluded that Jerald was unjustly enriched 

at the company’s expense when he purchased the buildings 

for $18,000. Unjust enrichment claims do not arise from 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.” Bloedorn Lumber Co. 

v. Nielson, 300 Neb. 722, 729, 915 N.W.2d 786, 792 (2018) 

(internal quotation marks omitted).

Jerald attacks the district court’s unjust enrichment judgment on a number of fronts. One such argument is that the 

district court erred by basing its unjust enrichment finding on 

the fact that the transfer of the buildings to Jerald for the price 
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he offered would result in his receiving a windfall and the 

company’s not receiving reasonable compensation. According 

to Jerald, “financial disparity” in a transaction alone cannot 

establish unjust enrichment liability. Brief for appellant at 3.

Jerald is undoubtedly correct that an unjust enrichment 

recovery is not available solely because a court finds that one 

party to an exchange obtained a better deal, or even a much 

better deal, than another. Our cases and other authorities 

confirm that unjust enrichment, while a flexible remedy, is a 

narrower concept. This idea is helpfully summarized in the 

comments to the Restatement (Third) of Restitution and Unjust 

Enrichment:

[T]he law of restitution is very far from imposing liability for every instance of what might plausibly be called 

unjust enrichment. The law’s potential for intervention 

in transactions that might be challenged as inequitable is 

narrower, more predictable, and more objectively determined than the unconstrained implications of the words 

“unjust enrichment.” . . .

The concern of restitution is not, in fact, with unjust 

enrichment in any such broad sense, but with a narrower 

set of circumstances giving rise to what might more 

appropriately be called unjustified enrichment. Compared 

to the open-ended implications of the term “unjust enrichment,” instances of unjustified enrichment are both predictable and objectively determined, because the justification in question is not moral but legal.

1 Restatement (Third) of Restitution and Unjust Enrichment 

§ 1, comment b. at 5 (2011) (emphasis in original).

Consistent with these thoughts, we have emphasized that 

“‘[t]he fact that a recipient has obtained a benefit without 

paying for it does not of itself establish that the recipient 

has been unjustly enriched,’” Kalkowski v. Nebraska Nat. 

Trails Museum Found., 290 Neb. 798, 806, 862 N.W.2d 294, 

301-02 (2015), quoting 1 Restatement (Third) of Restitution 

and Unjust Enrichment, supra, § 2(1), and that the doctrine 
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does not exist to rescue a party from the consequences of a 

bad bargain, Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 

(1996). Or, as the Texas Supreme Court has articulated the 

same basic idea, “[u]njust enrichment is not a proper remedy 

merely because it might appear expedient or generally fair 

that some recompense be afforded for an unfortunate loss to 

the claimant, or because the benefits to the person sought to 

be charged amount to a windfall.” Heldenfels Bros. v. City of 

Corpus Christi, 832 S.W.2d 39, 42 (Tex. 1992) (internal quotation marks omitted).

[10,11] Rather than a tool that a court can use to correct any 

transaction it might find unfair or unequal, the unjust enrichment remedy can be taken off the shelf in more limited situations. As we have held, to recover under a theory of unjust 

enrichment, the plaintiff must allege facts 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). We have explained that this rule does not mean that 

prior cases must have recognized a specific fact pattern as 

unjust enrichment in order for an unjust enrichment recovery 

to be available. It does mean, however, that an unjust enrichment plaintiff must demonstrate that under the circumstances, 

principles of the law of restitution would authorize a recovery. 

We have said that it is a “bedrock principle of restitution” 

that unjust enrichment occurs when there is a “transfer of a 

benefit without adequate legal ground” or a “transaction that 

the law treats as ineffective to work a conclusive alteration 

in ownership rights.” Id. at 866, 809 N.W.2d at 743, quoting 

Restatement (Third) of Restitution and Unjust Enrichment, § 1, 

comment b. (internal quotation marks omitted). We have also 

said one who is free from fault cannot be held to be unjustly 

enriched merely because one has chosen to exercise a contractual or legal right. Kissinger v. Genetic Eval. Ctr., 260 Neb. 

431, 618 N.W.2d 429 (2000).

Given the foregoing, we find that the company was not 

entitled to an unjust enrichment recovery solely because the 
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district court found that the transfer of the buildings to Jerald 

at the price he offered was economically lopsided. Even assuming the result of the transfer was a much better deal for Jerald 

than the company, this alone does not demonstrate that the 

transfer occurred without an adequate legal ground or that it 

was ineffective to work a conclusive alteration in ownership 

rights of the buildings. And while the district court appears to 

have concluded that Jerald was able to benefit from the circumstances solely because he was not willing to grant an easement 

on his property for ingress to and egress from the buildings, 

we see no basis to find that Jerald was obligated to grant such 

an easement.

Aside from the bare economics of the transaction, Steven 

and the company argued and the district court found that an 

unjust enrichment recovery was warranted based on the reasoning of the Arkansas Court of Appeals in Trickett v. Spann, 

2020 Ark. App. 552, 613 S.W.3d 773 (2020). Again, we disagree. In that case, plaintiffs, a husband and wife, paid for 

the construction of a house on real property owned by their 

daughter and her husband. Plaintiffs lived in the home for a 

time, but moved away after their daughter died. After plaintiffs had moved away and their daughter’s husband refused to 

pay them for the home, they filed a lawsuit claiming unjust 

enrichment and prevailed in the trial court. The appellate court 

upheld the unjust enrichment recovery, but did so based on 

the theory that an unjust enrichment recovery was appropriate when a plaintiff provides improvements to a defendant’s 

property, the circumstances were such that the plaintiff reasonably expected the defendant to pay for the value of the 

improvements, and the defendant was aware the plaintiff was 

providing the improvements with the expectation of being 

paid. The appellate court pointed to specific evidence in the 

record demonstrating that plaintiffs expected their daughter 

and her husband to pay for the home and that the daughter’s 

husband accepted the home knowing that his in-laws expected 

to be paid.
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While there is some surface similarity between this case and 

Trickett v. Spann, the unjust enrichment rationale applied there 

does not fit here. Unlike the plaintiffs in Trickett v. Spann, 

Steven and the company can point to no evidence in the record 

that the company constructed the buildings on Jerald’s land 

with the expectation that Jerald would pay for them or that 

Jerald allowed the buildings to be built there knowing that 

the company expected to be paid. The company did not even 

exist when the buildings were constructed. At that time, Jerald 

and Steven were operating as a general partnership. And even 

if that fact can be set to the side, there is also nothing in the 

record that suggests that when the buildings were constructed, 

Steven expected Jerald to pay him for the buildings, or that 

Jerald allowed the construction of the buildings knowing that 

such payment was expected.

Not only do we find the district court’s rationales for its 

unjust enrichment judgment unpersuasive, we find that its 

judgment is inconsistent with other principles of the law of 

unjust enrichment. First, an unjust enrichment recovery is 

generally unavailable when a party conferring a benefit has 

the opportunity to form a contract with the party receiving the benefit, but neglects the opportunity to do so. See 1 

Restatement (Third) of Restitution and Unjust Enrichment, 

§ 2, comment d. (2011). The rationale for this principle is that 

when voluntary transactions are feasible, it is preferable “to 

require the parties to make their own terms [rather] than for 

a court to try to fix them.” Indiana Lumbermens Mut Ins v. 

Reinsurance Results, 513 F.3d 652, 657 (7th Cir. 2008). See, 

also, 1 Dan B. Dobbs, Dobbs Law of Remedies § 4.9(4) at 

690 (2d ed. 1993) (providing that “[i]f the parties could have 

contracted but did not, the plaintiff generally is denied recovery of the non-cash benefit”). Here, the company appears to 

be claiming that it is entitled to an unjust enrichment recovery 

because Jerald and Steven, through their partnership, conferred 

a benefit on Jerald by constructing the buildings on his land 

many years ago. But, at that time, Steven knew the buildings 
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were being constructed on Jerald’s land. As Steven’s counsel 

conceded at oral argument, there was no evidence that Steven 

was deceived as to the buildings being built on Jerald’s land; 

rather, he “went into this eyes wide open.” Despite knowing 

where the buildings were being constructed, Steven did not 

insist on contractual terms, but, in the words of the U.S. Court 

of Appeals for the Seventh Circuit, is asking “a court to try 

to fix them.” Indiana Lumbermens Mut Ins v. Reinsurance 

Results, 513 F.3d at 657.

[12] In addition, the doctrine of unjust enrichment is recognized only in the absence of an agreement between the parties. Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 (1996). 

Steven and the company claim, and the district court found, 

that Jerald was unjustly enriched by receiving the buildings 

for his offered price of $18,000 and that he should have to pay 

more. But this overlooks the fact that the parties agreed that 

the district court should order the receiver to sell the buildings 

to Jerald for that price. To this, Steven and the company will 

no doubt respond that both they and Jerald agreed that a sale 

should take place on those terms with the reservation that the 

sale would not preclude further pursuit of an unjust enrichment 

claim. While this reservation certainly permitted Steven and 

the company to pursue an unjust enrichment claim after the 

sale, it did not change the law of unjust enrichment that governed it. And in our view, despite the parties’ agreement that 

an unjust enrichment claim could still be pursued, the company 

could not, consistent with unjust enrichment principles, agree 

to sell the buildings to Jerald for one price and also ask that the 

district court order him to pay more. Such an outcome results 

in Jerald’s effectively purchasing the buildings for much more 

than he offered and agreed to pay.

Because we find that the district court erred in entering 

judgment for the company and against Jerald on the company’s unjust enrichment claim, we reverse that judgment and 

remand the cause with directions to enter judgment in Jerald’s 

favor.
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Because we find that the unjust enrichment judgment was 

erroneous, we need not consider Jerald’s contention that the 

district court erred in its calculation of the amount Steven was 

unjustly enriched. An appellate court is not obligated to engage 

in an analysis that is not necessary to adjudicate the case and 

controversy before it. Cain v. Lymber, 306 Neb. 820, 947 

N.W.2d 541 (2020).

V. CONCLUSION

We find that we lack jurisdiction to review the district 

court’s order denying Jerald’s motion for further directions. 

We find that we have jurisdiction to review the district court’s 

order finding that Jerald was unjustly enriched. On that issue, 

we find the district court erred and therefore reverse, and 

remand with directions to enter judgment in Jerald’s favor.

Appeal dismissed in part, and in 

part reversed and remanded 

with directions.