S-16-0329, Bloedorn Lumber Company of North Platte v. Jarrod M. Nielson, David A. Schilke, and Candace Schilke (Apellants)
District Court of Lincoln County, Hon. Donald E. Rowlands
Attorneys: Patrick M. Heng, Kortnei N. Hoeft (Waite McWha & Heng) for Appellants/Defendants Schilke; Andrea Finegan McChesney (McChesney & Farrel) for Appellee/Plaintiff Bloedorn Lumber Company; George E. Clough for Appellee/Defendant Nielson
Civil: Unjust enrichment
Proceedings Below: The Trial Court found Bloedorn was entitled to recover the cost of the granite countertop including backsplash and sinks, plus sales tax and interest that had accrued, on the account from Nielsen because Nielsen was a past and present customer who had an open account with Bloedorn. (T61). The Trial Court found Bloedorn was not entitled to recover directly from the Schilkes on a theory of suit on an open account because there was no privity of contract between Bloedorn and the Schilkes. The Trial Court further found that Bloedorn had a statutory remedy, foreclosure of construction lien, it failed to enforce (T61). The Trial Court then found the Schilkes' claim that Nielsen was unjustly enriched was not appropriate as the Trial Court had already entered judgment in favor of Bloedorn and against Nielsen. The Trial Court also determined there was no evidence produced of actual or constructive fraud practiced by Nielsen upon the Schilkes. (T62). Finally, the Trial Court determined because the granite countertop, backsplash, and sinks were installed in the Schilke residence, that it remains there to present date, and the installation of those items have increased the value of the residence, the Schilkes had been unjustly enriched and entered a judgment in favor of Nielsen and against the Schilkes in the amount of $11,551.89.
Issues: The district court erred in 1) finding in favor of Appellee Nielson under the theory of unjust enrichment, 2) finding in favor of Appellee Nielson under the theory of unjust enrichment when Appellee Nielson had a statutory remedy of foreclosure under the construction lien filed in this matter, 3) finding in favor of Appellee Nielson under the theory of unjust enrichment when there existed a contract between parties which is a separate pending litigation, 4) finding in favor of Appellee Nielson when the evidence established he had been paid all monies due him at that time by Appellants, and 5) denying Appellants’ motion to transfer venue to Chase County in order to be consolidated with litigation between Appellants and Appellee Nielson