Washa v. Miller

• Decision Date: 03 May 1996
• Docket Number: S-94-408,Nos. S-94-407,s. S-94-407
• Citation: 546 N.W.2d 813,249 Neb. 941
• Parties: Steve WASHA, Appellant, v. James P. MILLER, Appellee. Larry MARTIN, Appellant, v. James P. MILLER, Appellee.
• Court: Nebraska Supreme Court

Page 813

546 N.W.2d 813

249 Neb. 941

Steve WASHA, Appellant, v. James P. MILLER, Appellee.

Larry MARTIN, Appellant, v. James P. MILLER, Appellee.

Nos. S-94-407, S-94-408.

Supreme Court of Nebraska.

May 3, 1996.

Syllabus by the Court

1. Summary Judgment. 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.

2. Summary Judgment: Evidence. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial. At that point, the burden of producing evidence shifts to the party opposing the motion.

3. Summary Judgment: Appeal and Error. In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence.

4. Trial: Evidence: Appeal and Error. To preserve a claimed error in the admission of evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence.

5. Evidence: Words and Phrases. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or the evidence tends to establish a fact from which the existence or nonexistence of a fact in issue can be directly inferred.

6. Summary Judgment: Affidavits. If the movant for summary judgment submits an affidavit as to a material fact, and that fact is not contradicted by the adverse party, the court will determine that there is no issue as to that fact.

7. Summary Judgment: Affidavits: Records: Appeal and Error. In order to receive consideration on appeal, any affidavits used on a motion for summary judgment must have been offered in evidence in the trial court and preserved in and made a part of the bill of exceptions.

8. Affidavits: Records: Appeal and Error. The fact that an affidavit is filed in the office of the clerk of the district court and made a part of the transcript is not important to a consideration and decision of an appeal of a cause to an appellate court.

9. Unjust Enrichment. The doctrine of unjust enrichment is recognized only in the absence of an agreement between the parties.

10. Contracts: Unjust Enrichment. The enrichment of one party at the expense of the other is not unjust where it is permissible under the terms of an express contract.

Appeal from the District Court for Douglas County: GERALD E. MORAN, Judge. Affirmed.

Mark Quandahl, of Brumbaugh & Quandahl, P.C., Omaha, for appellants.

James H. Monahan, Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Judge.

The appellants, Larry Martin and Steve Washa, brought separate suits against the appellee, attorney James P. Miller, seeking to recover $10,000 ($5,000 each) they allegedly entrusted to Miller. The district court for Douglas County consolidated the cases, and the cases have also been consolidated in this court for briefing and oral argument. Counts I through IV of Washa's petition and Miller's amended petition asserted causes of action sounding in negligence (count I), unjust enrichment (count II), misrepresentation (count III), and breach of contract (count IV). Miller answered the petitions with a general denial and filed a motion for summary judgment. The district court for Douglas County sustained Miller's motion and dismissed the appellants' petitions. Martin and Washa appeal.

We conclude there is no genuine issue as to any material fact on any of the counts asserted in the appellants' petitions, and thus, Miller is entitled to judgment as a matter of law. We therefore affirm.

I. BACKGROUND

Miller is an attorney who was hired by the appellants to defend them on felony assault and extortion charges in Douglas County, Nebraska. At the time Miller was hired, the appellants paid a $5,000 fee ($2,500 each) to retain his services. While the criminal charges were pending, the appellants transferred an additional $10,000 ($5,000 each) to Miller. Eventually, the appellants pled no contest to the charges, pursuant to a plea agreement, and Miller retained the $10,000.

The appellants brought suit against Miller, seeking to recover the $10,000. The district court consolidated the cases. Washa's petition and Martin's amended petition are identical. The appellants alleged in their petitions that the $10,000 was given to Miller in trust to be offered as restitution to the victim of the criminal case in an attempt to have the charges dismissed. While the petitions are not a model of clarity, we read counts I through IV to allege causes of action sounding in negligence, unjust enrichment, misrepresentation, and breach of contract.

More specifically, count I alleges in pertinent part that Miller's failure

(a) to inform [the appellants] that restitution in criminal cases was not available as a defense, and (b) to properly inform [the appellants] of all consequences of [their] guilty pleas, and (c) to return the $10,000.00 given to [Miller] for restitution, was a breach of [Miller's] duty to exercise reasonable care, skill, and diligence.

Count II alleges in pertinent part that

$2[,]500.00 [each] was not a fair and reasonable price for the services provided by [Miller] and that $5,000.00 [each] was given to [Miller] to be held in trust for the benefit of [the appellants].

... [Miller] would be unjustly enriched at the expense of [the appellants] if said [$5,000] fee and [$10,000], given to Miller in trust for restitution, [are] retained by [Miller].

Count III alleges in pertinent part that the "representations of [Miller], when made, were false or were made recklessly without knowledge of the truth or falsity and as a positive assertion."

Count IV alleges in pertinent part that "[o]n or about September 18, 1991, for good and valuable consideration ... Miller orally agreed to return $12,500.00 to [the appellants] and to sign a promissory note for prompt repayment of the same."

Miller answered the petitions with a general denial and filed a motion for summary judgment.

1. NSBA'S DISCIPLINARY INVESTIGATION

Before the hearing on Miller's motion for summary judgment was conducted, the appellants filed a disciplinary complaint against Miller with the Nebraska State Bar Association (NSBA). Dennis G. Carlson, Counsel for Discipline for the NSBA, investigated the complaint and concluded, in a letter sent to the appellants' attorney, that no disciplinary action should be taken against Miller. Carlson's letter stated that he "carefully considered this issue and determined that ... [d]ue to the lack of documentation or other supporting evidence, the true purpose of the advanced $10,000 cannot be proven."

2. MILLER'S EXHIBITS

On March 3, 1994, the hearing on Miller's motion for summary judgment was conducted. At the hearing, Miller offered three exhibits into evidence. Exhibit 1 is a sworn affidavit prepared by Miller. Exhibit 2 is Carlson's letter to the appellants' attorney discussing the findings of Carlson's disciplinary investigation. Exhibit 3 is a transcript of the criminal proceedings against the appellants in Douglas County District Court.

Exhibit 1, Miller's affidavit, contains the following declarations of fact:

1. He is a licensed practicing attorney in Omaha, Douglas [sic] County, Nebraska.

2. He was retained by Larry Martin and Steve Washa to represent both of them on pending criminal charges in Omaha, Douglas County, Nebraska.

3. That the agreement required a $2,500.00 retainer from each of them with an additional payment of $10,000.00 to [be ] paid after arraignment for conclusion of their cases. (Emphasis supplied.)

. That a complete hearing was had before Judge James A. Buckley with both defendants present in which they testified, waive [sic] any perceived conflict of interest, after an exhaustive interrogation by Judge Buckley, and further testified that they were satisfied with the legal services rendered in their behalf.

. That both criminal cases were concluded to the satisfaction of the defendants.

. That he was not a member of any partnership in this matter.

. Further affiant sayeth not.

At the hearing on Miller's motion for summary judgment, the appellants' counsel did not make any specific objections to exhibits 1 and 3, objected to exhibit 2 on the grounds of relevance and hearsay, and requested additional time to submit an affidavit controverting Miller's affidavit. The district court overruled the appellants' objection to exhibit 2 and granted the appellants 10 days to submit a controverting affidavit.

3. APPELLANTS' AFFIDAVIT

Washa filed an affidavit with the clerk of the district court for Douglas County on March 18, 1994, that alleged the $10,000 was given to Miller to hold in trust. Although this affidavit is contained within the transcript, Washa never offered it as evidence at the hearing on Miller's motion for summary judgment or had it preserved in, and made a part of, the bill of exceptions. Martin did not file an affidavit in the summary judgment proceeding before us.

The district court for Douglas County sustained Miller's motion for summary judgment and dismissed the appellants' petitions with prejudice, finding that no genuine issue of material fact was raised by the appellants. Martin and Washa appeal the district court's decision.

II. ASSIGNMENTS OF ERROR

The appellants assign four errors, which allege in summary that (1) the district court erred in admitting evidence over the objections of the appellants' co...