Schreiber Bros. Hog Co. v. Schreiber, S-21-570.

312 Neb. 707

980 N.W.2d 890

SCHREIBER BROTHERS HOG COMPANY, LLC, a Nebraska limited liability company, and Steven Schreiber, an individual member, appellees,

v.Jerald SCHREIBER, an individual member, appellant.

No. S-21-570.

Supreme Court of Nebraska.

Filed October 28, 2022

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

Jonathan M. Brown, of Walentine O'Toole, L.L.P., Omaha, 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 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.

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 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.

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 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...