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Abante, LLC v. Premier Fighter L.L.C.

Court of Appeals of Nebraska

July 23, 2013

ABANTE, LLC, DOING BUSINESS AS ABANTE MARKETING and Abante Holdings, LLC, appellant,
v.
Premier Fighter, L.L.C, et al., appellees.

1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court.

2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. ___: ___. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.

5. Actions: Proof. In order to maintain an action for money had and received, a plaintiff must show that (1) the defendant received money, (2) the defendant retained possession of the money, and (3) the defendant in justice and fairness ought to pay the money to the plaintiff.

6. Actions: Words and Phrases. An action for money had and received falls under the common-law class of assumpsit and is an action at law.

7. Actions: Contracts: Equity: Restitution: Unjust Enrichment. An action in assumpsit for money had and received may be brought where a party has received money that in equity and good conscience should be repaid to another. In such a [21 Neb.App. 54] 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.

8. Unjust Enrichment: Words and Phrases. Unjust enrichment has been defined to mean a transfer of a benefit without adequate legal ground.

9. Unjust Enrichment: Contracts. One who is free from fault cannot be held to be unjustly enriched merely because one has chosen to exercise a legal or contractual right.

10. Claims: Restitution: Notice. A payee without notice who accepts funds from a third party in satisfaction of a valid claim as a creditor of another person takes free of the third party's restitution claim to which it would otherwise be subject.

11. Summary Judgment: Proof. The 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 the moving party is entitled to judgment as a matter of law.

12. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.

Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.

John C. Fowles, of Fowles Law Office, P.C., L.L.O., for appellant.

Steven M. Delaney, of Reagan, Melton & Delaney, L.L.P., for appellee MMAStop, Inc.

Inbody, Chief Judge, and Irwin and Moore, ...


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