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312 Nebraska Reports

ZOOK V. ZOO

Cite as 312 Neb. 128

Michael R. Zook and Teresa L. Chramosta, Copersonal 

Representatives of the Estate of Robert L. Zook, 

deceased, et al., appellees and cross-appellees, v.

Jerry L. Zook, appellee and cross-appellant, 

and John B. Marshall, appellant.

___ N.W.2d ___

Filed August 5, 2022. No. S-21-176.

1. Limitations of Actions: Appeal and Error. The point at which a statute 

of limitations begins to run must be determined from the facts of each 

case, and the decision of the trial court on the issue of the statute of 

limitations normally will not be set aside by an appellate court unless 

clearly wrong.

2. ____: ____. The question of which statute of limitations applies is a 

question of law that an appellate court must decide independently of the 

conclusion reached by the trial court.

3. Contracts: Restitution: Unjust Enrichment. A claim for unjust enrichment is a quasi-contract claim for restitution.

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

action at law.

5. Judgments: Appeal and Error. In reviewing questions of law, an 

appellate court is obligated to reach a conclusion independent of the 

determinations reached by the lower courts.

6. Unjust Enrichment: Proof. To recover on a claim for unjust enrichment, the 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. The plaintiff must also allege facts that the law of restitution would recognize as 

unjust enrichment.

7. Unjust Enrichment: Words and Phrases. Unjust enrichment is a 

flexible concept. But it is a bedrock principle of restitution that unjust 

enrichment means a transfer of a benefit without adequate legal ground.

Nebraska Supreme Court Online Library

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

09/30/2022 09:07 AM CDT
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ZOOK V. ZOO

Cite as 312 Neb. 128

8. Unjust Enrichment. Unjust enrichment results from a transaction that 

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

9. Unjust Enrichment: Contracts: Restitution: Liability. A third party 

is not liable in quasi-contract, unjust enrichment, or restitution merely 

because he or she has benefited from a contract between two others. 

There must be some misleading act, request for services or the like, to 

support such an action.

10. 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.

Appeal from the District Court for Dawson County: James 

E. Doyle IV, Judge. Dismissed in part, vacated in part, and in 

part reversed and remanded with directions.

John D. Icenogle, of Bruner, Frank, Schumacher & Husak, 

L.L.C., for appellant.

Jonathan M. Brown, of Walentine O’Toole, L.L.P., for appellees and cross-appellees.

Claude E. Berreckman, Jr., and Claire K. Bazata, of 

Berreckman & Bazata, P.C., L.L.O., for appellee and crossappellant.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The plaintiffs, Michael R. Zook and Teresa L. Chramosta, 

as copersonal representatives of the estate of Robert L. Zook 

and in their individual capacities, and Robin L. Kuhlman, in 

her individual capacity, brought suit against Jerry L. Zook, 

alleging unjust enrichment and seeking a constructive trust, 

and against John B. Marshall, alleging negligence in failing to 

change the beneficiary on Robert’s life insurance. The district 

court found in favor of the plaintiffs and against Marshall 
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ZOOK V. ZOO

Cite as 312 Neb. 128

and Jerry. Marshall appeals, and Jerry cross-appeals. We dismiss in part, vacate in part, and in part reverse and remand 

with directions.

FACTUAL BACKGROUND

The facts are largely undisputed. Jerry and Robert were 

brothers. In the 1980s and 1990s, the two operated a welding 

business in Cozad, Nebraska, of which each brother owned 

50 percent.

In March 1993, the business purchased “key-man life insurance policies” on both Jerry and Robert, through Marshall, an 

insurance agent. In October 1993, the brothers entered into a 

buy-sell agreement, which provided for transfer of the business to the highest bidder. In addition, the agreement provided 

that at the time of payment of the purchase price and transfer 

of the stock, the parties were to each transfer to the other 

ownership of the life insurance policies each owned on the 

other’s life.

In November 1993, Robert entered the highest bid and 

became the sole owner of the business. In December, Jerry’s 

attorney wrote a letter noting that Marshall was making 

arrangements to transfer the life insurance policies. A letter to 

Marshall from a Cozad bank at approximately that same time 

suggests that Robert intended to name his wife as beneficiary 

of his life insurance policy.

Apparently, Marshall had Robert execute a change of beneficiary form that was sent to the insurance company. Marshall 

testified that he did this change of beneficiary on his own 

and was not directed to do so by Robert, but that Robert did 

sign the form. In a letter dated January 27, 1994, the insurance company sent the form back as unrecorded, stating that 

the “policy is owned by Jerry [and] we will need to have his 

signature on the form before the beneficiary can be changed.” 

Marshall testified that he does not recall informing Robert 

that the change in beneficiary form was returned without 

having been recorded and that he never informed Robert that 
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ZOOK V. ZOO

Cite as 312 Neb. 128

the beneficiary had not been changed to his wife. Marshall 

then sought Jerry’s signature to assign the policy, which 

occurred on August 28, 1995.

Robert died on March 27, 2017, his wife having predeceased him. After Robert died, the insurance company sent 

Jerry information to assist him in filing a claim to the proceeds. Meanwhile, Marshall had begun the same process with 

Robert’s children. The insurance company denied the plaintiffs’ 

claim. In May 2017, proceeds of approximately $200,000 were 

paid to Jerry.

Robert’s children, individually and in their capacities as 

copersonal representatives of the estate, filed suit against 

Marshall and Jerry. As to Jerry, they proceeded on theories of 

unjust enrichment, constructive trust, and conversion, allegations which Jerry denied. As to Marshall, they alleged professional negligence by virtue of his position as an insurance 

agent. Marshall conceded that he had failed to file the change 

of beneficiary form, but argued that suit against him was 

barred by the applicable statute of limitations.

The district court found in favor of Robert’s children and 

found Marshall and Jerry jointly and severally liable for 

$200,000. In addition, a constructive trust was imposed on the 

insurance proceeds in Jerry’s possession and Jerry was ordered 

to provide an accounting.

Marshall appealed, and Jerry cross-appealed.

ASSIGNMENTS OF ERROR

On appeal, Marshall assigns that the district court erred in 

(1) applying the general tort statute of limitations rather than 

the professional statute of limitations and (2) finding that the 

claim was not barred by the statute of limitations.

On cross-appeal, Jerry assigns that the district court erred in 

(1) finding clear and convincing evidence that he and Robert 

agreed to certain terms regarding the beneficiary designations 

on the life insurance policies; (2) finding that he had been 

unjustly enriched; (3) finding that he was aware that the life 
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ZOOK V. ZOO

Cite as 312 Neb. 128

insurance proceeds were intended to be paid to someone other 

than himself, yet he failed to rectify his unjust enrichment; 

(4) failing to apply the doctrine of laches; (5) establishing a 

constructive trust; and (6) finding that Marshall’s negligence 

and proximate cause did not absolve Jerry of liability.

STANDARD OF REVIEW

[1,2] The point at which a statute of limitations begins to 

run must be determined from the facts of each case, and the 

decision of the trial court on the issue of the statute of limitations normally will not be set aside by an appellate court unless 

clearly wrong. 1 The question of which statute of limitations 

applies is a question of law that an appellate court must decide 

independently of the conclusion reached by the trial court. 2

[3,4] A claim for unjust enrichment is a quasi-contract claim 

for restitution. 3 This court has held that any quasi-contract 

claim for restitution is an action at law. 4

[5] In reviewing questions of law, an appellate court is obligated to reach a conclusion independent of the determinations 

reached by the lower courts. 5

ANALYSIS

Marshall’s Appeal

Marshall filed his notice of appeal on March 1, 2021. On 

March 22, Marshall died. No notice of Marshall’s death or 

any attempt to revive was filed with this court by any party 

to this litigation. But after statements made at oral arguments 

suggested his death, this court issued an order to show cause 

why Marshall’s appeal should not be dismissed as a result of 

1 Colwell v. Mullen, 301 Neb. 408, 918 N.W.2d 858 (2018).

2 See Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).

3 In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

4 Id.

5 See Kissinger v. Genetic Eval. Ctr., 260 Neb. 431, 618 N.W.2d 429 (2000).
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ZOOK V. ZOO

Cite as 312 Neb. 128

his death. In response, Marshall’s wife requested that she be 

substituted as a party under Neb. Rev. Stat. § 25-322 (Reissue 

2016). As relevant here, in the event of the death of a party, 

§ 25-322 provides this court discretion to substitute a successor in interest as a party. We lack sufficient information to 

determine whether Marshall’s wife is a successor in interest. 

Accordingly, we exercise our discretion to deny the request of 

Marshall’s wife and dismiss Marshall’s appeal.

Jerry’s Cross-Appeal

Though we do not address Marshall’s appeal, Jerry filed 

a separate cross-appeal to which we turn now. In that crossappeal, Jerry assigns that the district court erred in finding 

unjust enrichment on his part and in imposing a constructive trust. We find merit to Jerry’s assertions and reverse the 

district court’s order insofar as it found Jerry was unjustly 

enriched.

[6] To recover on a claim for unjust enrichment, the 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 The plaintiff must also allege facts that the law of 

restitution would recognize as unjust enrichment. 7

[7,8] Unjust enrichment is a flexible concept. 8 But it is a 

bedrock principle of restitution that unjust enrichment means a 

transfer of a benefit without adequate legal ground. 9 It results 

from a transaction that the law treats as ineffective to work a 

conclusive alteration in ownership rights. 10

6 Kanne v. Visa U.S.A., 272 Neb. 489, 723 N.W.2d 293 (2006).

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

N.W.2d 725 (2011).

8 Id.

9 Id.

10 Id.
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ZOOK V. ZOO

Cite as 312 Neb. 128

[9,10] A third party is not liable in quasi-contract, unjust 

enrichment, or restitution merely because he or she has bene

fited from a contract between two others. 11 Instead, there must 

be some misleading act, request for services or the like, to 

support such an action. 12 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. 13

Although the plaintiffs have shown that Jerry received 

money and that Jerry retained that money, they have not shown 

that Jerry “in justice and fairness ought to pay the money” back 

to them. 14 Jerry was a beneficiary to Robert’s life insurance 

policy. When initially named a beneficiary, Jerry was Robert’s 

business partner. As we noted above, although the business 

relationship ended, Robert never changed the beneficiary of 

his policy.

But just because the plaintiffs maintain that Robert would 

have changed his beneficiary had he known that Jerry was 

still named in the policy, it does not mean that Jerry was 

unjustly enriched. The plaintiffs do not allege, nor is there 

any evidence to support, an assertion that Jerry engaged in 

any wrongdoing in connection with his status as beneficiary 

to Robert’s policy. Nor is there any evidence in the record that 

would show that Robert was obligated to change his beneficiary to, for example, his children or wife, such that it would 

be unjust for Jerry to retain the life insurance proceeds. 15 Jerry 

was named the beneficiary of the policy, and he simply 

11 See Haggard Drilling, Inc. v. Greene, 195 Neb. 136, 236 N.W.2d 841 

(1975).

12 Id.

13 Kissinger v. Genetic Eval. Ctr., supra note 5, citing Wrede v. Exchange 

Bank of Gibbon, 247 Neb. 907, 531 N.W.2d 523 (1995).

14 See Kissinger v. Genetic Eval. Ctr., supra note 5, 260 Neb. at 436, 618 

N.W.2d at 434.

15 See 22 Shepard’s Causes of Action 463 (1990) (collecting cases).
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Cite as 312 Neb. 128

exercised his right under the policy to apply for and accept the 

proceeds of that policy.

We conclude that the district court erred in finding that Jerry 

was unjustly enriched and in imposing a constructive trust on 

the proceeds. Accordingly, we reverse that finding and vacate 

the order imposing the constructive trust.

CONCLUSION

We dismiss Marshall’s appeal. As to Jerry’s cross-appeal, 

we reverse the district court’s findings, vacate the constructive 

trust, and remand with directions to dismiss.

Dismissed in part, vacated in part, and in part 

reversed and remanded with directions.