Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/27/2018 09:09 AM CDT




                                                      - 423 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                              JUNKER v. CARLSON
                                               Cite as 300 Neb. 423




                  Debra J. Junker et al., appellants, v. Elwyn Carlson and
                    Joel Carlson, defendants and third -party plaintiffs,
                       appellees, SLS Partners, appellee, and M ichael
                           Carlson, also known as Mike Carlson,
                               third -party defendant, appellee.
                                                 ___ N.W.2d ___

                                        Filed July 6, 2018.     No. S-17-356.

                1.	 Actions: Trusts: Equity. An action to impose a constructive trust is an
                     equitable action.
                2.	 Equity: Appeal and Error. On appeal from an equity action, an appel-
                     late court decides factual questions de novo on the record and, as to
                     questions of both fact and law, is obligated to reach a conclusion inde-
                     pendent of the trial court’s determination.
                 3.	 ____: ____. On appeal from an equity action, when credible evidence
                     is in conflict on material issues of fact, the court considers and may
                     give weight to the fact that the trial court observed the witnesses and
                     accepted one version of the facts over another.
                4.	 Trusts: Property: Title: Unjust Enrichment: Equity. A constructive
                     trust is a relationship, with respect to property, subjecting the person
                     who holds title to the property to an equitable duty to convey it to
                     another on the ground that his or her acquisition or retention of the
                     property would constitute unjust enrichment.
                5.	 Trusts: Property: Title: Equity: Proof. Regardless of the nature of the
                     property upon which a constructive trust is imposed, a party seeking to
                     establish the trust must prove by clear and convincing evidence that the
                     individual holding the property obtained title to it by fraud, misrepre-
                     sentation, or an abuse of an influential or confidential relationship and
                     that under the circumstances, such individual should not, according to
                     the rules of equity and good conscience, hold and enjoy the property
                     so obtained.
                6.	 Appeal and Error. Appellate courts do not consider arguments and
                     theories raised for the first time on appeal.
                              - 424 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       JUNKER v. CARLSON
                        Cite as 300 Neb. 423

   Appeal from the District Court for Kearney County: Terri S.
H arder, Judge. Affirmed.

  George G. Vinton for appellants.

  Steve Windrum, of Malcom, Nelsen & Windrum, L.L.C., for
appellees Elwyn Carlson and Joel Carlson.

  Donald J. Pepperl, P.C., L.L.O., for appellee SLS Partners.

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

  Cassel, J.
                      I. INTRODUCTION
   A trust’s grantors and beneficiaries asserted claims for con-
structive trusts against other parties who had dealt with the
trustee. After a bench trial, the district court dismissed the
claims. Because we agree that the claims failed either for lack
of proof or because of Neb. Rev. Stat. § 30-38,101 (Reissue
2016), which protects third parties dealing in good faith with a
trustee, we affirm.

                      II. BACKGROUND
   In 1997, Dale E. Carlson and Carol A. Carlson (collectively
Grantors), husband and wife, conveyed certain real estate to a
trust known as Mill Creek Trust Company. Although the trust
instrument is not a part of our record, evidence and testimony
established that the intended beneficiaries of this trust were
Grantors’ three children: Debra J. Junker, Lynn P. Carlson, and
Mike Carlson. The conveyed real estate included farmland,
several buildings, and one residential home. Grantors lived in
this residential home until 2006.
   The property was conveyed between trusts in order to
avoid taxation and Grantors’ creditors until it was held by the
Aebeskiver Company Trust (the Trust), of which Roger Wells
(Trustee) was trustee. In his deposition, Trustee acknowledged
                              - 425 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       JUNKER v. CARLSON
                        Cite as 300 Neb. 423

that the property was conveyed to the Trust for the benefit of
Grantors’ children.
   Grantors and two of the three beneficiaries brought suit
against (1) Trustee, (2) a buyer of the property, and (3) tenants
who had leased a portion of the property. There were two other
defendants whom we do not address, because they were dis-
missed from the suit prior to judgment and are not relevant for
the purposes of this appeal. The suit asserted that the defend­
ants had knowingly participated in certain transactions which
constituted a breach of Trustee’s fiduciary duties. The third
beneficiary was later added as a third-party defendant, but his
interests aligned with the other trust beneficiaries and he was
represented by their counsel at trial. For convenience, we will
refer to the Grantors and the three beneficiaries collectively as
“Claimants.” And we will disregard technical distinctions in
pleadings between the trust beneficiaries.
   After judgment was entered against Trustee in his separate
bankruptcy action, he was dismissed from the suit. After the
dismissal of Trustee, the contested issues were limited to (1)
whether the transactions constituted a breach of trust and, if
so, whether the buyer and tenants knowingly participated in
those breaches and (2) whether the buyer and tenants were
unjustly enriched.
                 1. Overview of Transactions
   In December 2001, Trustee leased the farmland portion of
the trust property to Joel Carlson and Elwyn Carlson (col-
lectively Tenants), with the lease to expire in 2007. While
the lease was still in place, Trustee sold the property to SLS
Partners (Buyer), a company that provides capital to property
owners by buying their property and leasing it back with an
option to repurchase. The terms of the sale were such that, in
exchange for the property, Buyer paid $200,000, as well as
executed a lease and an option agreement. Buyer agreed to
lease the property back to the seller for $26,405 per year, and
the agreement provided the seller with the option to purchase
                                     - 426 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              JUNKER v. CARLSON
                               Cite as 300 Neb. 423

the property back in the first 4 years of the lease at a price
which increased each year the option was not exercised.
   In July 2004, even though the property had been sold to
Buyer, Trustee entered into an agreement to amend the origi-
nal lease with Tenants, extending it from February 2007 to
February 2014.
   In January 2007, the Trust exercised its option to repurchase
the trust property from Buyer for $294,000 and simultane-
ously sold it to a third party for $515,000. In order to clear
the title prior to closing, the Trust negotiated with and paid
Tenants $152,000 for the relinquishment of the remainder of
the extended lease.

                   2. District Court Judgment
   In their operative complaint, Claimants alleged that Buyer
participated in Trustee’s breaches of trust and improper exer-
cise of trust powers, resulting in a net damage to the benefici­
aries of $133,000. They asserted similar claims against Tenants
and alleged that they incurred $152,000 in damages. In their
prayer for relief, Claimants requested to have said moneys
“held in trust for them.”
   After a bench trial, the district court dismissed the case,
finding that Buyer and Tenants were all entitled to protec-
tion under § 30-38,101, which protects third parties dealing in
good faith with a trustee. Additional facts and findings from
the trial and the judgment, styled as an order, are set forth in
our analysis.
   Claimants appealed, and we moved the case to our docket.1

               III. ASSIGNMENTS OF ERROR
   Claimants assign, combined and restated, that the district
court erred in failing to (1) find that Buyer acted in bad faith
when purchasing the trust property, (2) find that Tenants acted
in bad faith when they entered into the lease extension with

 1	
      See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
                                      - 427 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                               JUNKER v. CARLSON
                                Cite as 300 Neb. 423

the Trust and when they received $152,000 for the relinquish-
ment of the lease, (3) find that the $152,000 payment made
to Tenants constituted unjust enrichment, (4) find that the
$152,000 payment to Tenants was made under duress and coer-
cion, and (5) grant judgment in favor of Claimants.

                  IV. STANDARD OF REVIEW
   [1] The parties disagree on whether the asserted claims
sounded in law or equity. The discrepancy apparently stems
from the parties’ attempts to separately categorize the claims
for restitution and unjust enrichment as theories of recovery
alternative to a constructive trust. However, these “alterna-
tive” theories of recovery are grounded in Claimants’ action
to impose a constructive trust,2 as evidenced by the prayer for
relief that the alleged damages be “held in trust for them.” And
an action to impose a constructive trust is an equitable action.3
   [2,3] On appeal from an equity action, an appellate court
decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclu-
sion independent of the trial court’s determination.4 And in
such an appeal, when credible evidence is in conflict on mate-
rial issues of fact, the court considers and may give weight to
the fact that the trial court observed the witnesses and accepted
one version of the facts over another.5

                         V. ANALYSIS
  [4,5] A constructive trust is a relationship, with respect to
property, subjecting the person who holds title to the property

 2	
      See, e.g., Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002) (con­
      structive trust is equitable remedy intended to prevent unjust enrichment).
 3	
      In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781
      (2015).
 4	
      Estates at Prairie Ridge Homeowners Assn. v. Korth, 298 Neb. 266, 904
      N.W.2d 15 (2017).
 5	
      O’Connor v. Kearny Junction, 295 Neb. 981, 893 N.W.2d 684 (2017).
                                   - 428 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                            JUNKER v. CARLSON
                             Cite as 300 Neb. 423

to an equitable duty to convey it to another on the ground
that his or her acquisition or retention of the property would
constitute unjust enrichment.6 Regardless of the nature of
the property upon which a constructive trust is imposed, a
party seeking to establish the trust must prove by clear and
convincing evidence that the individual holding the property
obtained title to it by fraud, misrepresentation, or an abuse of
an influential or confidential relationship and that under the
circumstances, such individual should not, according to the
rules of equity and good conscience, hold and enjoy the prop-
erty so obtained.7
   We have previously held that a constructive trust may be
imposed where (1) a third party acquires trust property from
a trustee, (2) the third party had notice that the transfer is
in breach of trust, and (3) the beneficiary of the trust can in
equity compel the third party to restore the property to the
trust.8 But a third party “who in good faith and for value
deals with a trustee, without knowledge that the trustee is
exceeding or improperly exercising the trustee’s powers is
protected from liability as if the trustee properly exercised
the power.” 9
   In this case, it is undisputed that both Buyer and Tenants
received interest in trust property from Trustee. However,
Buyer and Tenants assert that they had no knowledge Trustee’s
actions were breaches of trust and that they are protected by
§ 30-38,101, because they dealt with Trustee in good faith.
Therefore, the issues are whether Buyer and Tenants were
unjustly enriched and, if so, whether they were nonetheless
protected by § 30-38,101.

 6	
      United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196
      (2015).
 7	
      Id.
 8	
      See Bend v. Marsh, 145 Neb. 780, 18 N.W.2d 106 (1945).
 9	
      § 30-38,101(a).
                              - 429 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       JUNKER v. CARLSON
                        Cite as 300 Neb. 423

                  1. Entitlement to Constructive
                       Trust Against Buyer
   In their brief on appeal, Claimants maintain that the sale
of the real estate to Buyer and the following lease and option
were not executed in good faith and were breaches of trust of
which Buyer had actual knowledge. However, the evidence
is unclear whether the sale was in fact a breach of trust, let
alone whether Buyer had reason to believe that it constituted a
breach of trust. In fact, the record is replete with testimony and
evidence that Grantors knew of and participated in the sale of
the land to Buyer.
   Grantors were present when Buyer inspected the land before
the sale, and Carol testified that Trustee explained the transac-
tion to them “[j]ust about word for word” the way that Buyer’s
counsel did in his opening statement at the bench trial. In his
opening statement, Buyer’s counsel stated:
      [Buyer] buys the property, [Buyer] leases the property
      back to the seller for a period of years, and during the
      lease the seller is given an option to repurchase the
      property with the option price usually escalating on an
      annual basis.
         [Buyer] is in the business to make money. Their objec-
      tive is to receive or make approximately 18 percent return
      on their investment. [Buyer] wants to make their invest-
      ment return. They do not want to own the real estate.
   Dale also testified that while Buyer’s partners were inspect-
ing the property, they mentioned that they were interested in
purchasing it. At that point in time, Dale asked Trustee, “‘What
is going on?’” and Trustee supposedly responded, “‘I’m the
trustee. I can do what I want.’” When Dale asked Trustee why
the property needed to be sold, Trustee responded, “‘Well,
I’m just doing it.’” Although Dale testified at trial that he did
not agree to sell the land in 2004, he testified in an earlier
affidavit that he “‘still had strong faith in the trust arrange-
ment and in [Trustee] as trustee through 2005.’” Dale also
                              - 430 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       JUNKER v. CARLSON
                        Cite as 300 Neb. 423

admitted that he did not consult an attorney about Trustee’s
actions until 2007.
   One of Buyer’s partners testified that both Trustee and Dale
had agreed to the terms of the sale before Buyer came to look
at the property. The partner reiterated the terms of the agree-
ment in Dale’s presence and testified that Dale expressed that
he thought it was “‘a great deal.’” According to the partner,
Dale was “high” and “excited” about making an investment in
some sort of medical device, and he wanted the deal to close
quickly so that he could get the money for that investment.
Dale allegedly asked the partners whether they would be inter-
ested in investing too, but they declined.
   As the sale proceeded, Buyer relied on counsel, the sell-
er’s counsel, and the title companies to facilitate the clos-
ing process. Before closing, an agent of the title company
called Trustee’s counsel to acquire a corrective deed. Three
weeks later, Grantors executed a warranty deed, granting the
property to the Trust. Then, on the day of closing, Grantors
executed an affidavit stating, among other things, that they
were the owners and sellers of the trust property and that there
were no encumbrances on the land. When confronted with the
document at trial, Carol acknowledged that her signature was
on the affidavit, but stated that she could not remember sign-
ing it.
   Finally, the closing statement shows, and Dale testified, that
$35,000 of the proceeds from the sale was used to pay an ear-
lier judgment debt of Dale’s.
   On this evidence, the district court found that Grantors were
participants, and not simply unknowing bystanders, to the deal
with Buyer. We agree. It would be difficult to find Buyer had
notice that Trustee was exceeding or improperly exercising his
authority in the sale where Grantors personally prepared docu-
ments necessary for closing.
   Claimants additionally argued that Buyer should have
known that the sale was a breach of trust, because Buyer
purchased the land for less than half the market value, leased
                                    - 431 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                             JUNKER v. CARLSON
                              Cite as 300 Neb. 423

the property back for more than the Trust was receiving from
Tenants, granted an option to purchase “with a steep escalating
option price,” and received “an excessive investment return.”
However, these arguments attack the propriety of the sale, and
a party “who in good faith deals with a trustee is not required
to inquire into the extent of the trustee’s powers or the propri-
ety of their exercise.”10
   Because Buyer dealt in good faith with Trustee and had no
reason to believe they participated in a breach of trust, Buyer
was protected under § 30-38,101. The district court did not
err in dismissing the claims for a constructive trust against
Buyer.

                2. Entitlement to Constructive
                    Trust Against Tenants
   [6] Claimants assert that Tenants were unjustly enriched
when they received the payment of $152,000 for the relin-
quishment of their lease, because (1) the original lease, which
was drafted by one of the Tenants, was unfair and constituted
a violation of an attorney or trusted relationship; (2) the lease
extension and relinquishment lacked consideration; (3) Tenants
had knowledge that the Trust did not own the land when they
entered into the agreement to extend the lease; and (4) the
relinquishment payment was made under duress and coercion.
However, Claimants failed to plead their theory of duress
and coercion in the court below. Because appellate courts
do not consider arguments and theories raised for the first
time on appeal,11 we decline to consider the theory of duress
and coercion.

                      (a) Original Lease
  We first dispose of Claimants’ attack upon the original lease
with Tenants. Claimants complain that Joel served as Dale’s

10	
      § 30-38,101(b).
11	
      Tolbert v. Jamison, 281 Neb. 206, 794 N.W.2d 877 (2011).
                              - 432 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       JUNKER v. CARLSON
                        Cite as 300 Neb. 423

attorney and abused a trusting relationship when he wrote an
unfair lease. In the argument section of their brief, Claimants’
sole basis for claiming the lease was unfair was that it con-
tained a provision allowing Tenants to terminate the lease under
certain circumstances. However, Tenants never terminated the
lease under that provision. Accordingly, even assuming that
Joel abused a trusting relationship and that the particular lease
provision was unfair, we fail to see how Tenants were unjustly
enriched by this provision.

             (b) Consideration for Lease Extension
                      and Relinquishment
   Claimants next argue that Tenants were unjustly enriched
because they were paid $152,000 to relinquish a lease that they
paid nothing to obtain. However, this argument lacks merit,
because there was adequate consideration for both the exten-
sion of the lease and the relinquishment.
   When Tenants entered into the amendment that extended the
term of the original lease, they agreed to pay rent in exchange
for the Trust’s leasing the farmland to them for the new dura-
tion of the lease. According to Claimants’ argument, there
must be some extra consideration, apart from the terms con-
tained within the original lease, in order for there to be consid-
eration for the extension. They cite no authority to support that
proposition, and we have not found any.
   There was also adequate consideration for the relinquish-
ment. Under the original lease and its amendment, Tenants
had the right to farm the land until February 2014. In
exchange for the relinquishment of that right, the parties
negotiated that Tenants would be paid $152,000. Joel testi-
fied that this amount was based off the amount of projected
earnings from farming the ground. Because the $152,000
payment compensated Tenants for the lost profits resulting
from the loss of the right to farm the ground, we conclude
that Tenants were not unjustly enriched by retaining that
payment.
                              - 433 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       JUNKER v. CARLSON
                        Cite as 300 Neb. 423

                 (c) Validity of Lease Extension
   In the remaining argument regarding lease extension, the
issue is whether Tenants were aware, at the time of the exten-
sion, that the Trust did not own the property and that Trustee
no longer had authority to execute the extension. In our de
novo review, we conclude that the evidence was insufficient to
establish that knowledge.
   Tenants testified that at the time of the extension, they
believed that the Trust still owned the land and that Trustee
had the authority to enter into the lease, because that is what
Dale represented to them. They testified that they did not dis-
cover that the land had been sold to Buyer until they went to
the “ASCS office” to “sign up” the farmland for an incentive
program, which was after they had entered into the extension.
And, as the district court noted, there was no reason to think
that Tenants would knowingly enter into a lease with someone
who neither owned the property nor had the legal authority to
bind the owner.
   Because Claimants failed to prove that Tenants were
unjustly enriched, it is unnecessary to consider whether they
were also protected by § 30-38,101. The district court did not
err in dismissing the claims for a constructive trust against
Tenants.
                       VI. CONCLUSION
   For the reasons set forth above, we affirm the district court’s
judgment dismissing the claims set forth in the operative
complaint.
                                                     A ffirmed.
   Wright and K elch, JJ., not participating.
