Daubmann v. CBS Real Estate Co., S-96-734

• Decision Date: 02 July 1998
• Docket Number: No. S-96-734,S-96-734
• Citation: 580 N.W.2d 552,254 Neb. 904
• Parties: Allen E. DAUBMAN and Renee A. Daubman, husband and wife, Appellees, v. CBS REAL ESTATE CO., a Nebraska corporation, and Arlene Engelbert, Appellants.
• Court: Nebraska Supreme Court

Page 552

580 N.W.2d 552

254 Neb. 904

Allen E. DAUBMAN and Renee A. Daubman, husband and wife, Appellees, v. CBS REAL ESTATE CO., a Nebraska corporation, and Arlene Engelbert, Appellants.

No. S-96-734.

Supreme Court of Nebraska.

July 2, 1998.

Syllabus by the Court

1. Actions: Equity. An action for assumpsit may be brought where a party has received money which in equity and good conscience should be repaid to another.

2. Actions: Equity: Unjust Enrichment. Where a party has received money which in equity and good conscience should be repaid to another, the law implies a promise on the part of the person who received the money to reimburse the payor in order to prevent unjust enrichment.

3. Actions: Equity. An action for assumpsit is in the nature of a bill in equity and lies wherever a party who has received money which in equity and good conscience should be repaid to another should by equity and natural principles of justice refund the money.

4. Actions: Equity. Although founded on equitable principles, an action in assumpsit for money had and received is an action at law.

5. Judgments: Appeal and Error. The judgment and factual findings of the trial court in an action at law tried to the court without a jury have the effect of a verdict and will not be set aside unless clearly wrong.

6. Actions: Evidence: Appeal and Error. In reviewing an action at law, an appellate court reviews the evidence in the light most favorable to the prevailing party.

7. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the lower courts.

8. Principal and Agent. Generally, an agent is required to act solely for the benefit of the principal in all matters connected with the agency and adhere faithfully to the instructions of the principal.

9. Principal and Agent. An agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any harmful act to the principal.

10. Real Estate: Principal and Agent. A real estate agent owes the principal a fiduciary duty to use reasonable care, skill, and diligence in performing her or his obligations and to act honestly and in good faith.

11. Principal and Agent. The rule requiring an agent to act with utmost good faith toward the principal places the agent under a legal obligation to make a full, fair, and prompt disclosure to the principal of all facts within the agent's knowledge which are or may be material to the matter in connection with which the agent is employed, which might affect the principal's rights and interests or influence the principal's action in relation to the subject matter of the employment, or which in any way pertain to the discharge of the agency which the agent has undertaken.

12. Judgments. In a bench trial, the trial court's entry of judgment in favor of a party warrants the conclusion that the trial court found in that party's favor on all issuable facts.

13. Judgments. The rule that in a bench trial the trial court's entry of judgment in favor of a party warrants the conclusion that the trial court found in that party's favor on all issuable facts is not made inapplicable merely because in addition to a general finding, the trial court also mentioned certain matters specifically.

14. Principal and Agent. A commission for services cannot be collected by the agent if the agent has willfully disregarded, in a material respect, an obligation which the law devolves upon the agent by reason of the agency.

15. Principal and Agent. A principal whose agent has violated her or his duties may properly refuse to pay compensation.

16. Prejudgment Interest: Claims. Absent compliance with the provisions of Neb.Rev.Stat. § 45-103.02(1) (Cum.Supp.1996), prejudgment interest is available only when a claim is liquidated, that is, when there is no reasonable controversy either as to the plaintiff's right to recover or as to the amount of such recovery.

Mark S. Dickhute, Omaha, for appellants.

Richard J. Rensch, of Raynor, Rensch & Pfeiffer, Omaha, for appellees.

WHITE, C.J., and CAPORALE, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

Claiming that defendant-appellant CBS Real Estate Co. and its agent, defendant- appellant Arlene Engelbert, breached their fiduciary duties, plaintiffs-appellees, Allen E. Daubman and his wife, Renee A. Daubman, sought the return of the real estate sales commission they paid. Following a bench trial, the district court entered judgment in favor of the Daubmans. CBS and Engelbert appealed to the Nebraska Court of Appeals, claiming that the district court had erred in (1) finding that they breached their fiduciary duties, (2) failing to find that the Daubmans ratified and otherwise acquiesced in their actions, (3) finding that the Daubmans sustained damages, and (4) awarding prejudgment interest. Concluding that the evidence failed to support the district court's judgment, the Court of Appeals vacated the judgment and remanded the cause with directions to dismiss. See Daubman v. CBS Real Estate Co., 6 Neb.App. 390, 573 N.W.2d 802 (1998). The Daubmans thereupon successfully petitioned for further review, claiming, in summary, that the Court of Appeals erroneously set aside the district court's factual findings. For the reasons hereinafter set forth, we reverse, and remand with direction.

II. SCOPE OF REVIEW

This action is one for assumpsit for money had and received, an action which may be brought where a party has received money which in equity and good conscience should be repaid to another. Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997); Wrede v. Exchange Bank of Gibbon, 247 Neb. 907, 531 N.W.2d 523 (1995). In such a circumstance, the law implies a promise on the part of the person who received the money to reimburse the payor in order to prevent unjust enrichment. Kramer, supra; Wrede, supra. The action, although falling under the common-law class of assumpsit, is really in the nature of a bill in equity and lies wherever the party should by equity and natural principles of justice refund the money. Boman v. Olson, 158 Neb. 636, 64 N.W.2d 310 (1954). Although founded on equitable principles, an action in assumpsit for money had and received is an action at law. Kramer, supra; Wrede, supra.

The judgment and factual findings of the trial court in an action at law tried to the court without a jury have the effect of a verdict and will not be set aside unless clearly wrong. In re Estate of Wagner, 253 Neb. 498, 571 N.W.2d 76 (1997). In reviewing an action at law, an appellate court reviews the evidence in the light most favorable to the prevailing party. Id. However, regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the lower courts. State v. Hill, 254 Neb. 460, 577 N.W.2d 259 (1998).

III. FACTS

As the Daubmans were considering building a new home, they wished to explore the amount for which they could sell their current home. To that end, they contacted Engelbert, a real estate saleswoman working through CBS. Engelbert met with the Daubmans, and the Daubmans asked her to prepare a competitive market analysis on the property to determine its market value. Engelbert prepared the analysis and forwarded the results to the Daubmans.

Engelbert informed the Daubmans that she was working with Thomas and Brenda Pedersen, who were looking for a residence similar in features and price to the Daubman property. According to Allen Daubman, Engelbert also stated that the Pedersens "had been pre-approved for credit in an amount more than necessary to purchase [the] home." Engelbert also stated, according to Allen Daubman, that the Pedersens had sufficient financial ability to purchase the home and that financing would not be a problem; that the Pedersens were preapproved with a particular lender for a $180,000 loan. Engelbert contradicted Allen Daubman, testifying that she did not state that the Pedersens had been preapproved for a particular amount of credit. Rather, Engelbert claims that she told the Daubmans not that the Pedersens were preapproved but that they were "qualified buyers, that [she] had been working with them, that ... they had a savings plan, they had been paying off their debts, and they had the cash to close." Engelbert admitted telling the Daubmans that the Pedersens were capable of buying the home.

Engelbert offered to show the property to the Pedersens if the Daubmans signed a "one-party listing agreement" with CBS granting it an exclusive right to sell the property to the Pedersens only. The next day, the Daubmans signed the one-party listing agreement. Pursuant to this agreement, the Daubmans agreed to give CBS the sole and exclusive right to sell the property for $139,950 "cash or as terms agreed" to the Pedersens only, and to pay CBS a cash commission of 7 percent of the gross sales price. At the time the agreement was signed, the Daubmans notified Engelbert that they might be interested in leasing back the property or moving into an apartment, since they were contemplating building a new home, which would not be completed before the sale of their current property closed.

Engelbert showed the property to the Pedersens that same day, and later that day the Pedersens requested that Engelbert prepare an offer. Engelbert prepared an offer, which provided that the Pedersens would purchase the property for $132,000 and rent the property back to the Daubmans for a period of time. That evening, Engelbert presented the offer to the Daubmans.

Allen Daubman testified that upon receiving the offer, he told Engelbert that he was not interested, that he was very disappointed, and that he no longer wished to pursue the matter with the Pedersens. He further explained to Engelbert that he was concerned about the Pedersens' ability to obtain financing, based on...