                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      MURANTE V. MURANTE


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                    JOHN MURANTE, APPELLEE,
                                                 V.

                                 SAM MURANTE, SR., APPELLANT.


                              Filed March 24, 2020.    No. A-19-362.


       Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge. Affirmed.
       Matthew V. Rusch, of Erickson & Sederstrom, P.C., for appellant.
        Michael L. Storey, Brian J. Brislen, and Patrick D. Wier, of Lamson, Dugan & Murray,
L.L.P., for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       BISHOP, Judge.
                                       I. INTRODUCTION
        John Murante (John) sued his brother Sam Murante, Sr. (Sam), and Property Ventures,
LLC (Property Ventures), for default on a promissory note and unjust enrichment. John sought
recovery of a judgment in the amount due and owing on the note. After Property Ventures filed
for bankruptcy, the matter proceeded solely against Sam. Thereafter, John and Sam filed
cross-motions for summary judgment. The Douglas County District Court granted John’s motion,
overruled Sam’s motion, and entered judgment in John’s favor in the amount of the accrued
balance of the note ($309,447.66) and any further accruing interest. Sam appeals the district court’s
entry of summary judgment in John’s favor, and also claims the district court failed to dispose of
John’s unjust enrichment claim. We affirm.




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                                        II. BACKGROUND
                   1. EVENTS SURROUNDING EXECUTION OF PROMISSORY NOTE
         In 1999, John and his then-wife entered into a joint investment with Sam and his then-wife,
Gloria Murante (Gloria), in property at 5622 Ames Street in Omaha, Nebraska, which the record
reflects was a commercial property. Each couple was cumulatively a 50-percent owner of that
property. By some point in 2011, both couples had divorced, and only John and Gloria each owned
a 50-percent interest in the property. Around that time, a limited liability company for the property
was formed, called 5622 Ames, LLC. We refer to both the property itself and the property as a
limited liability company as “5622 Ames.”
         In 2002, Property Ventures was the successful bidder for the purchase and renovation of
the South Omaha City Hall (SOCH) building located in Omaha. Sam, as a managing member of
Property Ventures, needed $100,000 for the acquisition of SOCH. Sam and John agreed that John
would provide $50,000 to Property Ventures in exchange for a 12.5-percent ownership in SOCH.
Sam’s son agreed to the same. Those agreements were set forth in a single 2002 “Conveyance
Agreement” (Conveyance Agreement) signed by Sam as a grantor (on behalf of Property Ventures)
and John and Sam’s son as grantees (in their individual capacities). To finance his SOCH
investment, John said he transferred about $50,000 from his capital account at 5622 Ames to
himself (in an affidavit, John said he paid $50,213 toward the SOCH project); he said that he was
personally entitled to those funds and that transaction was “treated on the books as a loan.” John
said he then transferred those funds to Property Ventures. Sam agreed that John took $50,000 from
5622 Ames and that at that moment John had possession and ownership of that money before using
it for the SOCH project; 5622 Ames did not give that money directly to Property Ventures.
         In 2007, Sam wrote a letter to John offering to memorialize John’s ownership interest as a
result of John’s investment in SOCH per the Conveyance Agreement. The letter also reflected that
Property Ventures owed John a “receivable” related to his SOCH investment. During his
deposition for this case, Sam could not recall if the arrangement to memorialize John’s ownership
interest as proposed in the letter ever occurred. John asserted in an affidavit that he never received
a memorialized ownership interest in SOCH. John said he received the 2007 letter along with an
accounting document confirming his investment and setting forth the cash flow and tax credits that
Sam and Property Ventures owed to him.
         According to John, Sam presented him an affidavit with an attached promissory note in
2013. The promissory note itself showed it was executed by Sam in 2006, promising to pay John
$101,768.12 in a lump-sum payment no later than June 2010. Interest would accrue at a rate of 5
percent per annum on the unpaid principal balance. Upon default, the interest rate would increase
to the lesser of a rate of 16 percent per annum or the highest rate legally permissible. The note
identified Sam as the “Borrower.” Sam signed the note both individually and as the managing
member of Property Ventures. The note was “the joint and several obligation of each Borrower.”
There are apparent revisions completed by Sam in handwritten form upon the original note in May
2010, including an agreement to extend the date to pay John back to the “ABSOLUTE
DEADLINE” of December 31, 2013. Another revision indicated that the amount due regarded “3
LOAN TOTAL | FROM 56&AMES TO PVLLC in 2002.” The handwritten revisions were signed



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by Sam individually and as managing member of Property Ventures. The affidavit that
accompanies the note was signed by Sam (individually) in August 2013. In the affidavit, Sam
affirmed that he was the borrower in the note and the debt was owed to John under the note. The
affidavit stated it was meant to encumber three properties to secure payment of the debt owed to
John.
        Sam later testified that he “crafted” the promissory note contemporaneously with the 2013
affidavit, adding the handwritten revisions on the note to make it look “better.” He said he authored
the affidavit to “support the attached note in an effort to encumber the property to make it more
difficult for a potential judgment lienholder to acquire the property [described in the affidavit].”
But Sam also said the note regarded “monies owed from the loan repayment from Property
Ventures.” According to John, sometime in 2005, 2006, or 2007, Sam verbally told John that Sam
had executed the note to “protect” John’s interest under the Conveyance Agreement that was
“funded from a loan from 5622 Ames.”
        John believed the note guaranteed repayment for his SOCH investment. The Conveyance
Agreement included a provision which allowed Sam to buy out John’s (or Sam’s son’s) ownership
interest based on the greater of: $125,000 or the actual value of John’s (or Sam’s son’s) ownership
interest based upon a current appraisal. The Conveyance Agreement also provided that John and
Sam’s son would receive tax credits. John thought the principal amount of the note ($101,768.12)
was larger than his SOCH investment as stated in the Conveyance Agreement ($50,000) because
the note was “essentially” a buyout of his ownership and also factored in the tax credits promised
to him under the Conveyance Agreement. John estimated that factoring in interest, the buyout
amount would have been “somewhere in that vicinity” of $101,768.12 in 2006 (when Sam
executed the promissory note). However, John said he did not “author” or “create” the principal
amount of the note.
        From November 13 to 15, 2015, Sam initiated an email exchange with John about a dispute
between John and Gloria concerning 5622 Ames, even though Sam no longer had an ownership
interest in 5622 Ames at this point and was divorced from Gloria. In one email, Sam referenced
“$50,213.75” as having been paid to John (apparently, from 5622 Ames) relating to the SOCH,
which Sam noted he knew John “never got an interest in and [was] a loss due to circumstances
beyond [Sam’s] control”; in a later email, Sam said his mention of the “$50k [sic]” was only to
inform John that he realized John “lost money”; Sam added, “I acknowledge you have a claim.”
On November 17, John and Gloria executed a confidential “Settlement Agreement and Limited
Liability Company Membership Interest Purchase Agreement” (Settlement Agreement) under
which John sold his rights, title, and interests in 5622 Ames to Gloria for a certain purchase price
calculated based upon the adjusted book value of 5622 Ames. Gloria died in 2016.
                         2. PROCEDURAL BACKGROUND OF THIS ACTION
        On January 18, 2017, John filed a complaint against Sam and Property Ventures. John
alleged he had not received any payments due and owing on the promissory note. He asserted two
theories of recovery: default on the promissory note and unjust enrichment. He alleged that the
amount owed as of January 18 was $231,784.04 and that interest continued to accrue at 16 percent
per annum. John sought a judgment of $231,784.04 plus further accrued interest, attorney fees,



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and costs of the action. On February 20, Sam and Property Ventures filed a joint answer, denying
the material allegations of the complaint. The answer included several affirmative defenses,
including that John had “released” and “been satisfied as to any claim pursued in this action.”
         On January 22, 2019, Sam and John filed cross-motions for summary judgment. In John’s
motion, he asked for a judgment in his favor of $309,447.66 plus costs. The same day, Sam and
John separately filed an index of evidence in support of their own motions and filed statements of
allegedly undisputed facts. Thereafter, John filed a response to the facts that Sam claimed were
undisputed and a “Motion for Contempt, Sanctions, and Attorney Fees and Expenses for Violation
of Protective Order” against Sam regarding the confidentiality of the Settlement Agreement.
         In February 2019, there was a hearing on the pending motions. John’s counsel offered
several exhibits, including Sam’s 2018 deposition, the Conveyance Agreement, John’s 2018
deposition, the 2007 letter from Sam to John, a SOCH accounting document for years 2003 to
2006 regarding “Purchase by [John], of 12.5% of SOCH Property,” the 2015 email exchange
between Sam and John, the promissory note and 2013 affidavit, the Settlement Agreement, and
John’s 2019 affidavit. Sam’s counsel offered John’s complaint, a 2019 affidavit of the trustee of
the Gloria A. Murante Trust with the Settlement Agreement attached, and Sam’s 2019 affidavit
regarding this case. All offered exhibits were received into evidence; several exhibits were sealed
pursuant to a protective order. In addition to receiving briefs, the district court heard arguments on
the cross-motions for summary judgment. Those arguments revolved around whether the
Settlement Agreement between John and Gloria released Sam’s obligation of his indebtedness to
John under the promissory note.
         On March 13, 2019, the district court entered an order on the pending motions. It noted
that Property Ventures was in bankruptcy and was not involved in the motions (Sam states on
appeal that the company’s involvement in this matter was terminated after it filed for bankruptcy
in December 2017). The district court found that Sam had not paid any amount on his indebtedness
under the promissory note. The district court was not persuaded that the Settlement Agreement
between John and Gloria released Sam’s obligation under the note. The district court sustained
John’s motion for summary judgment and overruled Sam’s motion for summary judgment.
Judgment was “entered in favor of [John] pursuant to the terms of the promissory note.” John’s
motion for sanctions was denied given the judgment entered in his favor. On March 29, 2019, the
district court entered an order that the judgment entered on March 13 was in the amount of
$309,447.66 with interest continuing to accrue on that amount at 16 percent per annum on the
unpaid balance from January 1 until the judgment was satisfied.
         Sam appeals.
                                 III. ASSIGNMENTS OF ERROR
        Sam claims the district court erred (1) by granting John’s motion for summary judgment
against Sam and (2) by failing to address John’s unjust enrichment claim.
                                  IV. STANDARD OF REVIEW
      Summary judgment is to be granted when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Wintroub v. Nationstar Mortgage, 303




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Neb. 15, 927 N.W.2d 19 (2019). Under this standard of review, summary judgment is proper only
when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that
there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judgment as a matter of law. See id. In
reviewing a summary judgment, an appellate court views the evidence in a light most favorable to
the party against whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence. Wintroub v. Nationstar Mortgage, supra.
                                          V. ANALYSIS
                                      1. SUMMARY JUDGMENT
       Sam contends the Settlement Agreement between John and Gloria contains “[r]elease
language” which favors Sam, and should “at the very least” have precluded summary judgment in
John’s favor. Brief for appellant at 7.
                      (a) General Principles Regarding Summary Judgment
        A 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 it is entitled to
judgment as a matter of law. Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). If the
movant meets this burden, then the nonmovant must show the existence of a material issue of fact
that prevents judgment as a matter of law. Id.
        When the parties’ evidence would support reasonable, contrary inferences on the issue for
which a movant seeks summary judgment, it is an inappropriate remedy. Id. Where reasonable
minds could draw different conclusions from the facts presented, such presents a triable issue of
material fact. See id. Conclusions based on guess, speculation, conjecture, or a choice of
possibilities do not create material issues of fact for the purposes of summary judgment; the
evidence must be sufficient to support an inference in the nonmovant’s favor without the fact finder
engaging in guesswork. Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808 (2019).
At the summary judgment stage, the trial court determines whether the parties are disputing a
material issue of fact. Wynne v. Menard, Inc., supra. It does not resolve the factual issues. Id.
                              (b) Default on Promissory Note Claim
         Our review of the evidence supports the district court’s finding that Sam did not “contest
the validity of the promissory note or its terms.” On appeal, Sam does not dispute those matters or
the amount of debt owed under the note. Therefore, there is no dispute that the promissory note is
a valid contract between Sam and John. See Five Points Bank v. White, 231 Neb. 568, 437 N.W.2d
460 (1989) (note in usual commercial form is complete contract in itself). Although not specifically
stated, the district court’s order reflects that its decision was necessarily grounded in John’s claim
of default on the promissory note rather than his alternative theory of unjust enrichment. See
Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 (1996) (doctrine of unjust enrichment is
recognized only in absence of agreement between parties). John met his burden to show that no
genuine issue of material fact existed regarding his claim that Sam was in default under the




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promissory note. The burden shifted to Sam to show the existence of a material issue of fact which
prevented judgment as a matter of law. See Wynne v. Menard, Inc., supra.
                   (c) Effect of Settlement Agreement Upon Promissory Note
       One of Sam’s affirmative defenses was that John’s claim had been released against Sam.
During his deposition, Sam answered repeatedly that the only reason he believed he did not have
to pay John back under the promissory note was because he thought the Settlement Agreement
(between John and Gloria) discharged that obligation. The only matter contested on the
cross-motions for summary judgment before the district court and on appeal was whether the
Settlement Agreement released John’s present claim against Sam. We therefore turn to the relevant
portions of the Settlement Agreement.
       As stated in its preamble, the Settlement Agreement was executed:
       [B]y and between JOHN M. MURANTE, an individual (“Seller”), and GLORIA
       MURANTE, and individual (“Buyer”), with respect to the purchase and sale of all capital
       and profits membership interests in 5622 AMES . . . (the “Company”). The parties hereto
       are sometimes individually referred hereto as a “Party” and collectively as the “Parties.”

(Underscoring in original.) One of the purposes of the Settlement Agreement was that “the Parties
[(John and Gloria)]” desired to “resolve any disputes or threatened litigation with respect to any
and all claims involving or in any way relating to the Company [(5662 Ames)].”
        The Settlement Agreement contains the following release provision, in relevant part:
                [T]he Parties and their respective successors, heirs and assigns hereby release and
        forever discharge each other, in all capacities, whether individually, as a fiduciary or in
        their corporate capacity, and their respective predecessors-in-interest, successors-in-
        interest, officers, Members, Managers, employees, representatives and agents, from any
        and all claims or cause of action of whatever kind or nature whether now known or
        unknown, foreseen or unforeseen, which in any way arise out of or relate to the Parties’
        ownership in or operation of the Company, and the Parties’ ownership in [5622 Ames]
        prior to formation of the Company.

        Further, another provision states that the Settlement Agreement, the exhibits referenced in
it, and any documents delivered by the parties pursuant to it generally constitute the “entire
agreement among the parties with respect to the subject matter [of the Settlement Agreement] and
supersede all prior and contemporaneous agreements and understandings among the parties with
respect to the subject matter of [the Settlement] Agreement.” Although the Settlement Agreement
refers to exhibits, no exhibits or other documents are attached to the identical versions of the
Settlement Agreement that were received into evidence.
        Sam argues that the Settlement Agreement release provision discharges him of his
obligation under the promissory note. Again, the release applies to “all claims . . . which in any
way arise out of or relate to the Parties’ [(John and Gloria)] ownership in or operation of the
Company [(5622 Ames)].” Sam maintains that the promissory note “arose out of [John’s]
ownership interest in 5622 Ames.” Brief for appellant at 8. Sam points out his handwriting on the



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promissory note (“3 LOAN TOTAL | FROM 56&AMES TO PVLLC in 2002”) and the evidence
that John’s SOCH investment was funded out of John’s capital account with 5622 Ames. But John
asserts that the fact that he “happened to use his own money that was withdrawn from his
ownership interest in 5622 Ames to fund to his investment in SOCH does not mean the SOCH
[d]ebt arose out of or was related to John and Gloria’s ownership in or operation of 5622 Ames.”
Brief for appellee at 10. John agrees with the district court that the Settlement Agreement had
“‘nothing to do’” with the promissory note. Id. at 9. The promissory note executed by Sam is not
mentioned in the Settlement Agreement.
        The district court properly found that Sam was not a party to the Settlement Agreement.
There is no dispute that John and Gloria are the only individuals specifically identified as parties
to the Settlement Agreement. During his deposition, Sam acknowledged that he was divorced from
Gloria by the time the Settlement Agreement was executed; also, Sam conceded that he was not a
party to the Settlement Agreement. But Sam believes he was released under the terms of the
Settlement Agreement from John’s present claim because he was Gloria’s “predecessor in interest
with regard to 5622 Ames.” Brief for appellant at 13.
        Essentially, Sam is attempting to benefit from the Settlement Agreement as a third-party
beneficiary. As a matter of general contract law, the Nebraska Supreme Court has strictly construed
who has the right to enforce a contract as a third-party beneficiary. See Podraza v. New Century
Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010). In order for those not named as parties
to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by
reasonable intendment that the rights and interest of such unnamed parties were contemplated and
that provision was being made for them. Podraza v. New Century Physicians of Neb., supra. The
right of a third party benefited by a contract to sue thereon must affirmatively appear from the
language of the instrument when properly interpreted or construed. Id. A third-party beneficiary
has the burden of showing that the provision was for his or her direct benefit. See id. Unless one
can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally
benefited and will not be permitted to recover on or enforce the agreement. Id.
        Particularly with regard to persons claiming to be third-party beneficiaries to release
agreements, the “intent rule” governs. See id. at 689, 789 N.W.2d at 268. Under the intent rule,
general releases which fail to specifically designate who is discharged either by name or by some
other specific identifying terminology are inherently ambiguous, and the actual intent of the parties
will govern. Podraza v. New Century Physicians of Neb., supra. As the intent rule was adopted in
Nebraska, there is a rebuttable presumption that a release benefits only those specifically
designated and it is the unnamed party claiming under the release who has the burden to show an
actual intent to benefit him or her. See id.
        Under the intent rule, actual intent governs as to everyone except those discharged by name
or by some other specific identifying terminology. Id. However, this element of specific
identification is only met when the reference in the release is so particular that a stranger can
readily identify the released party and his or her identity is not in doubt. Id. The intent to release a
person who did not participate in the agreement or pay consideration must be clearly manifest. Id.
        As stated previously, Sam was not specifically named a party to the Settlement Agreement.
The Settlement Agreement release provision was a mutual release between “the Parties [(John and



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Gloria, as defined in the preamble)] and their respective successors, heirs and assigns . . . in all
capacities, whether individually, as a fiduciary or in their corporate capacity, and their respective
predecessors-in-interest, successors-in-interest, officers, Members, Managers, employees,
representatives and agents.” (Emphasis supplied.) Although the release specifically named John
and Gloria, it did not specifically name Sam by use of his name or by way of including the general
term “predecessors-in-interest.” See Podraza v. New Century Physicians of Neb., 280 Neb. at 690,
789 N.W.2d at 269 (definition of released parties under release agreement between plaintiffs and
Alegent Health as including entities “affiliated with” Alegent Health did not satisfy level of
specificity required for third-party beneficiary (different entity formed under separate parent
company that contracted with Alegent Health) to rely solely on four corners of agreement). See,
also, Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 782, 798 N.W.2d 845, 848 (2011) (plaintiff
sued fitness center and Precor, Inc.; Precor, Inc. was not explicitly mentioned in language of waiver
signed by plaintiff with fitness center that generally released fitness center and its “affiliates” from
all claims and Precor, Inc. failed to show that it was an intended third-party beneficiary of waiver).
        Sam believes that the inclusion of the term “predecessors-in-interest” in the release clause
was sufficient to specifically name him under the release. He argues that he was a “specific
individual known to John at the time to be the ‘predecessor in interest’ to Gloria.” Brief for
appellant at 11. Sam contends that this case is distinguishable from Podraza v. New Century
Physicians of Neb., supra, and Palmer v. Lakeside Wellness Ctr., supra, because “the party
granting the release” (referring to John) “has had a relationship with the others involved--5622
Ames . . . Gloria . . . and Sam . . . for years.” Reply brief for appellant at 4.
        As the district court was aware, Sam used to have an ownership interest in 5622 Ames
before all of his interest went to Gloria as part of their 2011 divorce. Although Sam was Gloria’s
predecessor-in-interest in part of her ownership percentage in 5622 Ames and John knew that, a
stranger to the Settlement Agreement would not know that the term predecessor-in-interest
referred to Sam. See Podraza v. New Century Physicians of Neb., supra (specific identification is
only met when reference in release is so particular that stranger can readily identify released party
and his or her identity is not in doubt). Stated another way, a stranger would not be able to “easily
identify” to whom the term predecessor-in-interest refers as used in the Settlement Agreement
without knowledge of the history of transfers of ownership interests in 5622 Ames. See id. at 690,
789 N.W.2d at 269. The Settlement Agreement in the form as it was received into evidence does
not contain past ownership information.
        Because Sam was not sufficiently identified in the release provision of the Settlement
Agreement, there was a rebuttable presumption that the release benefitted only those specifically
designated (John and Gloria). Therefore, Sam had the burden to prove that it was the actual intent
of John and Gloria to benefit him under the release. However, as Sam thought he was sufficiently
named in the release, he believed there was “no burden” upon him to “show any such intent.” Brief
for appellant at 11.
        While emails show that Sam discussed the dispute underlying the Settlement Agreement
with John prior to its execution and remarked that John had a “claim” regarding the SOCH
investment, there is nothing in those emails or the other submitted evidence that shows an actual
intent by John (or Gloria) to clear Sam of the obligation to pay John under the promissory note,



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whether under the contemplated Settlement Agreement or otherwise. Also, Sam testified that he
did not have a role in drafting or reviewing the Settlement Agreement before it was entered other
than offering his opinion (to former wife Gloria, now-deceased) to settle the dispute. Sam admitted
that the dispute regarding 5622 Ames in November 2015 (the led to the Settlement Agreement)
was solely between John and Gloria and that he did not have a right or obligation to approve that
settlement. There is neither evidence nor assertions that Sam participated in the execution of the
Settlement Agreement in any meaningful way to the instant case or that Sam helped Gloria fulfill
her owed consideration under the Settlement Agreement.
         John aptly points out that the Settlement Agreement itself presents strong evidence that
Sam was not intended to be benefitted under its release provision in light of a separate
confidentiality provision that does mention Sam by name. The confidentiality provision provides
that the Settlement Agreement was not to be disclosed to anyone except a list of individuals,
including “Sam Murante.” John states, the fact that “John and Gloria considered Sam during the
negotiations and did not agree to release the SOCH [d]ebt [Sam] owed John only strengthens the
presumption that they did not intend to benefit Sam with their mutual release.” Brief for appellee
at 15. We agree. See Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780
N.W.2d 416 (2010) (expression of one thing implies exclusion of another).
         Sam did not show that the release of the Settlement Agreement was actually intended to
benefit him. Therefore, his defense that he was not obligated under the promissory note to John
fails. See Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010). For
the same reason, Sam did not show that a material issue of fact prevented judgment in John’s favor
as a matter of law. See Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018).
                       (d) Summary Judgment Disposition Was Warranted
        Reviewing the evidence in a light most favorable to Sam and giving him the benefit of all
reasonable inferences, the record discloses no genuine issue as to any material facts or any ultimate
inferences that may be drawn from those facts regarding the Settlement Agreement. The
Settlement Agreement has no application to Sam’s obligation under the promissory note to John.
In addition to our discussion of the legal principles from Podraza set forth above, it bears noting
that the source of John’s funds (his capital account in 5622 Ames) for his initial $50,000
investment in SOCH has absolutely no relevance to Sam’s promise to pay John under the
promissory note. According to John (and not disputed by Sam), the promissory note was related
to Sam buying out John’s interest in the SOCH property. To the extent John’s withdrawal of cash
from 5622 Ames remained a matter to be addressed on the company’s books, this would have been
an accounting matter between John and Gloria in reaching a final settlement amount when Gloria
purchased John’s interest in 5622 Ames. Regardless of where John obtained his capital, it was his
purchase of a 12.5-percent interest in SOCH that prompted Sam to execute the promissory note.
As noted by the district court, the Settlement Agreement “had nothing to do with the promissory
note and dealt only with John and Gloria Murante’s ownership interest in 5622 Ames.” The district
court properly granted summary judgment in John’s favor.




                                                -9-
                                 2. UNJUST ENRICHMENT CLAIM
         Sam claims that the district court’s order is “unclear as to the scope of the summary
judgment granted” in light of the alternate theory of recovery (unjust enrichment) pled in John’s
complaint. Brief for appellant at 14. However, Sam is aware that the district court entered judgment
in John’s favor “‘pursuant to the terms of the promissory note,’” which was generally the relief
requested under John’s complaint for each pled theory of recovery (default on promissory note
and unjust enrichment). Id. at 15.
         The district court did not need to address the unjust enrichment theory because it was not
the theory upon which the court relied for its decision. See, Bloedorn Lumber Co. v. Nielson, 300
Neb. 722, 915 N.W.2d 786 (2018) (express contract claim supersedes quasi-contract claim (i.e.,
unjust enrichment or quantum meruit claim) arising out of same transaction to extent that contract
covers subject matter underlying requested relief); Washa v. Miller, 249 Neb. 941, 546 N.W.2d
813 (1996) (doctrine of unjust enrichment is recognized only in absence of agreement between
parties); Professional Recruiters v. Oliver, 235 Neb. 508, 456 N.W.2d 103 (1990) (quantum meruit
action may be joined in petition with express contract action, and judgment based on either will
satisfy liability as to both claims where they have their origin in same transaction).
                                       VI. CONCLUSION
       We affirm the district court’s order granting summary judgment in John’s favor.
                                                                                    AFFIRMED.




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