Intangible property and liquid assets such as stocks, and bank and investment accounts may also be held subject to a constructive trust. See, Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997); Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). Regardless of the nature of the property upon which the constructive trust is imposed, a plaintiff 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 property so obtained. Brtek v. Cihal, 245 Neb. 756, 515 N.W.2d 628 (1994).

It is not surprising they have found none; INA's argument is contrary to fundamental principles of corporate and agency liability.         Neither of the two cases INA cites for the proposition that where an agent is a corporation, its employees are subagents of the principal (U.S. v. Tianello (M.D.Fla. 1994) 860 F.Supp. 1521 (Tianello); Andrews v. Schram (1997) 252 Neb. 298 [562 N.W.2d 50] (Andrews)) interprets or cites Civil Code section 2351. Moreover, neither case bears any factual similarity.

A principal and an agent are in a fiduciary relationship. See Andrews v. Schram, 562 N.W.2d 50, 54 (Neb. 1997). Because of the fiduciary relationship, the principal owes the agent a duty of good faith and fair dealing in the incidents of their relationship.

Under Nebraska law, one is an agent if he or she acts: (1) for the benefit of another and (2) subject to that other's control. See, e.g., Andrews v. Schram, 562 N.W.2d 50, 54 (Neb. 1997). Edwards meets both prongs of this test.

This court can apply state law remedies to seize the property of a party. Fed.R.Civ.P. 64.See, e.g.,Enterprise Bank v.Magna Bank , 92 F.3d 743, 747 (8th Cir. 1996) (applying Missouri law). An order of attachment cannot be granted unless the plaintiffs prove, by a "preponderance of the evidence" one or more of the grounds set forth in Neb. Rev. Stat. § 25-1001; MeccaTech, Inc. v. Kiser , 2008 WL 1774992 (D. Neb. 2008); Andrews v.Schram , 562 N.W.2d 50, 53, 55-56 (Neb. 1997). Under Nebraska law, a prejudgment attachment against the property of a defendant may be issued when the defendant: (1) has absconded with the intent to defraud his or her creditors;

Grone v. Lincoln Mutual Life Ins. Co., 230 Neb. 144, 149, 430 N.W.2d 507, 511 (1988). See also Andrews v. Schram, 252 Neb. 298, 303, 562 N.W.2d 50, 54 (1997). Thus, LBL had a duty to disclose to Edwards any material facts regarding the indebtedness for which Edwards was being held accountable under the 1986 Indebtedness Agreement.

A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. Hass v. Neth, supra; Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997). The unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.

A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997). The unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.

Intangible property and liquid assets such as stocks and bank and investment accounts may also be held subject to a constructive trust. See, Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997); Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). Regardless of the nature of the property upon which the 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 property so obtained. ProData Computer Servs. v. Ponec, supra; Brtek v. Cihal, 245 Neb. 756, 515 N.W.2d 628 (1994).

Id. Because the power of attorney creates an agency relationship, the authority and duties of an attorney in fact are governed by the principles of the law of agency. Id. An agency is a fiduciary relationship resulting from one person's manifested consent that another may act on behalf and subject to the control of the person manifesting such consent, and further resulting from another's consent to so act. Andrews v. Schram, 252 Neb. 298, 562 N.W.2d 50 (1997). Cook classifies the Manor's claim against her as a claim for "malpractice," and relying on the language of Community First State Bank, asserts that such a claim is not assignable. Malpractice is defined as "[a]n instance of negligence or incompetence on the part of a professional."