Lindsay Internat. Sales & Serv. v. Wegener , 301 Neb. 1 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/12/2018 01:11 AM CDT
-1-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Lindsay International Sales & Service, LLC, appellee,
v. M ichael J. Wegener , an individual, and
Jerome Pribil, an individual, appellants.
___ N.W.2d ___
Filed September 7, 2018. No. S-16-1051.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
2. Directed Verdict: Evidence. A directed verdict is proper at the close
of all the evidence only when reasonable minds cannot differ and can
draw but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.
3. Jury Instructions. Whether a jury instruction is correct is a question
of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
6. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
7. Judges: Words and Phrases. A judicial abuse of discretion exists if
the reasons or rulings of a trial judge are clearly untenable, unfairly
-2-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
8. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
9. Contracts: Words and Phrases. A lack of consideration means no
contract is ever formed because no consideration exists or none was
intended to pass. A failure of consideration, on the other hand, means
the contract is valid when formed but becomes unenforceable because
the performance bargained for has not been given.
10. Directed Verdict: Appeal and Error. When it follows logically from
a jury’s findings that a theory on which a directed verdict was granted
could not have been successful, the directed verdict cannot be said to
have affected the outcome and is, at most, harmless error.
11. Trial: Evidence. Evidence that is irrelevant is inadmissible.
12. Evidence. 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.
13. ____. Relevancy requires only that the degree of probativeness be some-
thing more than nothing.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Affirmed.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., and Barry D. Geweke, of Stowell &
Geweke, P.C., L.L.O., for appellants.
John M. Lingelbach and John V. Matson, of Koley Jessen,
P.C., L.L.O., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
Schreiner, District Judge.
Papik, J.
Lindsay International Sales & Service, LLC (Lindsay),
sued Michael J. Wegener and Jerome Pribil in the district
court for Platte County to collect amounts Lindsay claimed
were due on personal guaranties. The district court granted
Lindsay’s motion for a directed verdict on certain affirmative
defenses raised by Wegener and Pribil and instructed the jury
-3-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
accordingly. The jury returned a verdict in favor of Lindsay
for the full amount sought. Wegener and Pribil now appeal.
They challenge the directed verdict, the jury instructions, the
admission of evidence concerning their personal finances, and
the denial of their motion for new trial. Finding no reversible
error, we affirm.
BACKGROUND
Initial Discussions Between Wegener,
Pribil, and Lindsay.
This case has its genesis in Wegener and Pribil’s participa-
tion in an agricultural business venture in Mexico. Wegener
and Pribil and another individual, Isaak Wall, also known as
Isaak Wall Vogt, formed a business entity in Mexico called
Ko’ol Agricola S.P.R. de R.L. de C.V. (Ko’ol Ag). Wegener,
Pribil, and Wall planned to have Ko’ol Ag purchase or lease
land in Mexico and raise crops there.
Wegener, Pribil, and Wall planned to take advantage of
their respective backgrounds to operate Ko’ol Ag. Because
Wall had ownership interests in at least two agricultural equip-
ment dealers and ties to Mexico, he would be responsible
for obtaining and setting up irrigation pivots on behalf of
Ko’ol Ag. Wegener and Pribil, both of whom conduct farming
operations in Nebraska, would provide the finances and farm-
ing expertise.
Beginning in November 2012, Wegener and Pribil had dis-
cussions with agents of Lindsay about purchasing pivots for
the farming operation in Mexico. Wegener and Pribil indicated
their desired terms for the purchase of pivots. The global direc-
tor of credit for Lindsay’s parent company told Wegener and
Pribil that to obtain those terms from Lindsay, they would need
to provide personal financial statements and provide personal
guaranties for the amount owed for the pivots.
Wegener and Pribil also contend that Lindsay made rep-
resentations to them about Wall and one of the equipment
dealers in which he had an ownership interest, IJS Irrigation,
LLC (IJS). The record contains varying accounts of those
-4-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
representations. According to Wegener and Pribil, they were
told that the pivots should be sold through IJS and that Wall
and IJS were trustworthy and suitable partners for Wegener and
Pribil in the pivot transaction.
Wegener and Pribil Agree to
Personal Guaranties.
In December 2012, Wegener and Pribil provided personal
guaranties to Lindsay. The agreements identified IJS as the
principal debtor by describing the debt for which Wegener
and Pribil were providing guaranties as follows: “For and
in consideration of any existing indebtedness to [Lindsay]
of IJS Irrigation, LLC invoices referencing customer KO’OL
AGRICOLA S.P.R. de R.L. de C.V.”
In the guaranties, Wegener and Pribil agreed to guarantee the
payment of any of the above-described debt in accordance with
the terms of any agreement between the principal debtor and
Lindsay. They also agreed that in the event of a default by the
debtor, Lindsay would not be required to proceed first against
the debtor, but could immediately proceed against them.
Pivots Are Ordered and Shipped.
After the parties executed the guaranty agreements, Lindsay
received orders for 16 complete pivots. Neither Wegener nor
Pribil placed the orders. Wegener believed that they were
placed by Wall.
The resulting invoices issued by Lindsay indicated that the
pivots were sold to IJS. The invoices referenced Ko’ol Ag in
the item description. While the parties agree that the pivots
were all shipped to the same shipping warehouse in Florida,
they dispute whether all of the pivots were actually trans-
ferred to IJS. Pointing to some bills of lading that do not list
the recipient of the pivot as IJS, Wegener and Pribil contend
that some of the pivots were transferred to other entities. And
while it is undisputed that at least some of the pivots made it to
Mexico, Wegener and Pribil assert that none of the pivots were
placed on Ko’ol Ag’s land.
-5-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Dispute Arises Over Payment.
Months after the pivots were shipped, Wegener and Pribil
sent letters to Lindsay attempting to cancel the guaranty agree-
ments. Lindsay responded by demanding payment.
When Lindsay did not receive payment, it filed suit against
Wegener and Pribil. Lindsay alleged that it sold IJS goods for
the Ko’ol Ag account on credit, that IJS had defaulted in the
amount of $1,019,795.38, and that Wegener and Pribil were
obligated to cover the IJS debt.
Wegener and Pribil denied that they were obligated to pay
and asserted a number of affirmative defenses including false
representation, fraud in the inducement, failure of consid-
eration, impairment of collateral, deprivation of the right to
be subrogated to the benefit of all security, and violation of
Nebraska’s Uniform Deceptive Trade Practices Act (UDTPA),
Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014). The mat-
ter proceeded to a jury trial.
Trial.
At trial, the parties presented the evidence recounted above
and the district court received Wegener’s and Pribil’s financial
statements, over their relevance objections. After Wegener and
Pribil rested their case, Lindsay moved for a directed verdict
on Wegener and Pribil’s affirmative defenses. The district
court granted a directed verdict to Lindsay on the affirma-
tive defenses of failure of consideration, impairment of col-
lateral, deprivation of the right to be subrogated to the benefit
of all security, and the UDTPA. The district court overruled
Lindsay’s request for a directed verdict on the defenses of false
representation and fraud in the inducement.
As requested by Wegener and Pribil, the district court
instructed the jury on the affirmative defense of material
misrepresentation. Also at Wegener and Pribil’s request, it
instructed the jury that Lindsay was entitled to recover only
“the total amount you determine is owed and unpaid on the
IJS indebtedness for the pivots.” But in accordance with the
directed verdict, the district court declined to submit Wegener
-6-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
and Pribil’s proposed instruction on the definition of fraud
under the UDTPA.
In closing arguments, counsel for Wegener and Pribil
argued, among other things, that the evidence showed IJS did
not receive all of the pivots and that thus, Wegener and Pribil
could not be liable for the full amount claimed by Lindsay.
The jury, however, returned a unanimous verdict in favor
of Lindsay for $1,019,795.38, the full amount owing on the
invoices. The district court ultimately entered a judgment on
the jury verdict.
Following the verdict, Wegener and Pribil moved for a new
trial. They alleged irregularities in the proceedings that pre-
vented a fair trial, excessive damages resulting from passion
or prejudice, error in assessing the amount of recovery, insuf-
ficient evidence to support the verdict, and error of law at trial.
The district court ultimately overruled the motion.
Wegener and Pribil now appeal. We have determined that
Wegener and Pribil’s notice of appeal was timely filed. See
Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 901
N.W.2d 278 (2017).
ASSIGNMENTS OF ERROR
Wegener and Pribil assign the following errors, condensed,
restated, and reordered: The district court erred (1) in directing
a verdict for Lindsay on the affirmative defense of impair-
ment of collateral, (2) in directing a verdict for Lindsay on the
affirm­ative defense of failure of consideration, (3) in directing
a verdict for Lindsay on the affirmative defense of violation of
the UDTPA, (4) in failing to give their proposed jury instruc-
tion regarding the UDTPA, (5) in admitting evidence of their
personal financial conditions, and (6) in failing to grant their
motion for new trial.
STANDARD OF REVIEW
[1,2] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
-7-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Armstrong v. Clarkson
College, 297 Neb. 595, 901 N.W.2d 1 (2017). A directed ver-
dict is proper at the close of all the evidence only when rea-
sonable minds cannot differ and can draw but one conclusion
from the evidence, that is, when an issue should be decided as
a matter of law. Id.
[3,4] Whether a jury instruction is correct is a question of
law. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d
247 (2018). When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently
of the conclusion reached by the trial court. Id.
[5,6] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. Id. A
trial court has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. Id.
[7] A judicial abuse of discretion exists if the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
[8] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion. Facilities Cost Mgmt. Group v.
Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018).
ANALYSIS
Impairment of Collateral
Affirmative Defense.
In the section of their operative answer listing affirma-
tive defenses, Wegener and Pribil alleged that they should
be released from liability under the “impairment of collateral
-8-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
doctrine” and as a result of Lindsay’s acts that deprived them
“of their right to be subrogated to the benefit of all security.”
The district court granted Lindsay a directed verdict on these
affirmative defenses. Wegener and Pribil contend it should not
have done so.
As the following discussion will demonstrate, the concepts
Wegener and Pribil asserted as separate affirmative defenses
and argue separately on appeal are actually part and parcel
of the same affirmative defense. For reasons we will explain,
we find that this defense could not apply in these circum-
stances, and thus, the district court correctly granted Lindsay a
directed verdict.
This court has previously recognized that a guarantor can
be released from liability as a result of a creditor’s actions or
omissions that impair collateral securing the principal debt at
issue. See, e.g., Custom Leasing, Inc. v. Carlson Stapler &
Shippers Supply, Inc., 195 Neb. 292, 237 N.W.2d 645 (1976).
We have previously referred to the defense as “impairment of
collateral.” Builders Supply Co. v. Czerwinski, 275 Neb. 622,
635, 748 N.W.2d 645, 656 (2008).
The impairment of collateral defense has its roots in the
guarantor’s subrogation right to collateral securing the under-
lying debt. See Custom Leasing, Inc., supra. That is, if the
principal debtor fails to meet its obligation in such a transac-
tion and the creditor enforces the guaranty, “a guarantor has
the right to step into the shoes of the creditor and sue the
debtor for collateral securing the debt.” See Century 21 Prods.
v. Glacier Sales, 129 Wash. 2d 406, 412, 918 P.2d 168, 170
(1996). Because acts or omissions of the creditor that result in
the collateral’s unavailability deprive the guarantor of its right
of subrogation, a guarantor is generally released by such acts
or omissions. See Custom Leasing, Inc., 195 Neb. at 299, 237
N.W.2d at 649 (“[w]hether the guarantor is entitled to a full
discharge or only pro tanto, it is released from its liability to
the extent of the injury caused by the willful or negligent acts
of [the creditor]”).
-9-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
If its name were not enough, the preceding discussion
should make clear that in order for the impairment of col-
lateral defense to apply, the underlying debt must be secured
by collateral. See, e.g., Myers v. Bank of Niobrara, 215
Neb. 29, 31-32, 336 N.W.2d 608, 610 (1983) (“[i]t may be
true that if a secured party . . . impairs a guarantor’s abil-
ity to satisfy any obligation arising under the agreement of
guaranty by releasing the collateral securing that loan, said
guarantor’s obligation is then released”) (emphasis supplied);
Restatement (Third) of Suretyship and Guaranty § 42 at 190
(1996) (recognizing that defense is available “[i]f the under-
lying obligation is secured by a security interest in collateral
and the obligee impairs the value of that interest”) (emphasis
supplied). If the debt is not secured, there is no collateral
to impair and no subrogation right to protect. See Estate
of Muscato v. Northwest Nat’l Bk., 181 Ill. App. 3d 44, 48,
536 N.E.2d 872, 875, 129 Ill. Dec. 822, 825 (1989) (“[i]t is
axiomatic that because the loan was unsecured, no collateral
could have been impaired”).
Wegener and Pribil could not successfully assert the impair-
ment of collateral defense because it is available only when
the guarantor has a subrogation right to collateral. There is
no evidence that Lindsay had a security interest in the pivots,
and Wegener and Pribil do not even attempt to argue that such
evidence exists.
Because there is no evidence that collateral was to secure
the underlying debt, the principal cases Wegener and Pribil
rely upon in support of their argument that the district court
erred by directing a verdict on their impairment of collateral
defense are inapplicable. In those cases, a creditor either
impaired or failed to acquire a security interest as required by
a contract, to the ultimate detriment of the guarantor. See, e.g.,
National Bank of Commerce Trust & Sav. Assn. v. Katleman,
201 Neb. 165, 266 N.W.2d 736 (1978); Custom Leasing, Inc.,
supra. In this case, however, the transaction did not involve
a security interest. As a result, the impairment of collateral
- 10 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
defense could not apply and the district court correctly granted
a directed verdict for Lindsay.
Failure of Consideration
Affirmative Defense.
Wegener and Pribil also contend that the district court erred
by granting Lindsay a directed verdict on their affirmative
defense of failure of consideration. Again, we find no basis to
reverse the district court’s decision.
Wegener and Pribil argue that there was a failure of consid-
eration in that the pivots Lindsay agreed to sell were not trans-
ferred to the entity that purchased them. Specifically, Wegener
and Pribil contend that because Lindsay failed to perform its
obligations to the principal debtor, the consideration failed and
Wegener and Pribil’s obligations under the guaranties were
eliminated or at least diminished.
[9] Lindsay responds that there was sufficient consideration
for the guaranties because Lindsay extended credit to IJS in
reliance on Wegener’s and Pribil’s promises to pay if IJS did
not. Lindsay’s response appears to confuse “failure of consid-
eration” with the separate concept of “lack of consideration.”
“A lack of consideration means no contract is ever formed
because no consideration exists or none was intended to pass.”
Federal Land Bank of Omaha v. Woods, 480 N.W.2d 61, 66
(Iowa 1992). A failure of consideration, on the other hand,
“means the contract is valid when formed but becomes unen-
forceable because the performance bargained for has not been
given.” Id. See, also, 3 Richard A. Lord, A Treatise on the Law
of Contracts by Samuel Williston § 7.11 (4th ed. 2008) (distin-
guishing these concepts).
Some courts have recognized that a guarantor can avoid
liability on a guaranty through the affirmative defense of
failure of consideration by showing that the creditor failed
to render the performance for which the guarantor agreed to
guarantee payment. See, e.g., Walcutt v. Clevite Corporation,
13 N.Y.2d 48, 191 N.E.2d 894, 241 N.Y.S.2d 834 (1963).
- 11 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Wegener and Pribil claim these circumstances are present
here, and they make alternative arguments as to why that is
the case.
First, they argue that there was a failure of consideration
because Lindsay did not transfer the pivots to Ko’ol Ag. We
reject this argument at the outset. Both the guaranties them-
selves and the invoices indicate that IJS was the debtor, not
Ko’ol Ag. Lindsay did not have an obligation to transfer the
pivots directly to Ko’ol Ag, and thus, Wegener and Pribil can-
not premise a failure of consideration defense on any failure to
effectuate such a transfer.
The alternative failure of consideration argument Wegener
and Pribil assert is that the consideration failed because some
pivots were not delivered to IJS. Because IJS was the principal
debtor in the transaction, the claim that the consideration failed
because IJS did not receive pivots on which Lindsay now
seeks payment cannot be dismissed so quickly. Furthermore,
there was some evidence introduced at trial—bills of lading
for a few of the pivots that listed entities other than IJS as the
recipient and testimony about at least one pivot’s having borne
a stamp suggesting it was sold to another entity—that Wegener
and Pribil can point to in support of their argument that IJS did
not receive the pivots.
The evidence summarized above, coupled with the require-
ment that we draw all inferences in favor of Wegener and
Pribil in reviewing the grant of a directed verdict, might
suggest grounds for reversal if it were not for the fact that
Wegener and Pribil already presented these very arguments
to the jury and the jury rejected them. While the district court
granted Lindsay a directed verdict on the failure of consid-
eration affirmative defense, as noted above, Wegener and
Pribil asked for and received a jury instruction that Lindsay
was entitled to recover “the total amount you determine is
owed and unpaid on the IJS indebtedness for the pivots.”
Counsel for Wegener and Pribil contended that this instruc-
tion was justified by evidence suggesting some pivots were
- 12 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
not transferred to IJS and stated that the proposed instruc-
tion “goes back to [Wegener and Pribil’s] defense of failure
of consideration.”
Not only did Wegener and Pribil convince the court that
the jury should be instructed that they were liable only to the
extent IJS was indebted to Lindsay; their counsel devoted
extensive time in closing argument to the contention that some
of the pivots were not transferred to IJS and asked the jury not
to make Wegener and Pribil pay for pivots IJS did not even
receive. The jury’s award of damages in favor of Lindsay for
the full amount claimed demonstrates that it rejected this argu-
ment. Under these circumstances, we find that the award of a
directed verdict on the failure of consideration defense was, at
most, harmless error.
It does not appear that a Nebraska appellate court has
previously found that the grant of a partial directed verdict
could amount to harmless error. However, we have held that
a summary judgment can be harmless error when viewed in
light of a jury’s subsequent findings. In Smith v. Colorado
Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005),
a patient claimed, among other things, that an organ recovery
service had acted negligently in not reviewing donor records
and failing to inform the medical center that a certain pre-
servative had been used. The district court granted summary
judgment in favor of the recovery service. Upon the patient’s
appeal, we reasoned that any error in granting summary judg-
ment was harmless, because the jury specially found no proxi-
mate cause as to one defendant and the jury’s special finding
on proximate cause was equally applicable to the organ recov-
ery service.
[10] We find this reasoning in Smith instructive in the
instant case and hold that when it follows logically from a
jury’s findings that a theory on which a directed verdict was
granted could not have been successful, the directed verdict
cannot be said to have affected the outcome and is, at most,
harmless error. A number of cases from other jurisdictions
- 13 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
have recognized and applied this principle. See, e.g., Goulet
v. New Penn Motor Exp., Inc., 512 F.3d 34 (1st Cir. 2008);
Earle v. Benoit, 850 F.2d 836 (1st Cir. 1988); Janich Bros.,
Inc. v. American Distilling Co., 570 F.2d 848 (9th Cir. 1977);
St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me. 1988);
Steffensen v. Smith’s Management Corp., 820 P.2d 482 (Utah
App. 1991). See, also, Russell v. May, 306 Kan. 1058, 400 P.3d
647 (2017) (employing same analysis as cases above but find-
ing error not harmless in that case).
In this case, we find that the jury’s verdict would not have
differed if a directed verdict had not been granted on the fail-
ure of consideration affirmative defense. By instructing the
jury that Wegener and Pribil were liable only to the extent IJS
was indebted to Lindsay, the district court required the jury
to consider the very issue raised by the failure of consider-
ation defense—whether IJS received the pivots and was thus
indebted to Lindsay. If anything, the district court relieved
Wegener and Pribil of the burden of proving their failure of
consideration defense by embedding it within the amount
Lindsay was owed, an issue on which Lindsay bore the burden
of proof. Even after Wegener and Pribil argued that IJS did not
receive all the pivots, however, the jury awarded Lindsay the
full amount Lindsay claimed.
The jury clearly rejected the notion that IJS did not receive
the pivots and was thus indebted to Lindsay for less than the
full amount claimed. In doing so, the jury rejected the sub-
stance of the failure of consideration defense. The failure of
consideration affirmative defense would not have succeeded
even if the directed verdict had not been granted. The directed
verdict is thus, at most, harmless rather than reversible error.
Uniform Deceptive Trade
Practices Act.
We now turn to Wegener and Pribil’s claim that the district
court erred by finding that a particular section of Nebraska’s
UDTPA was not a valid defense to Lindsay’s claim. They
- 14 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
argue that Lindsay violated the UDTPA by fraudulently
inducing them to sign the guaranty agreements through mis-
leading representations about IJS. We find that the district
court did not err by granting Lindsay a directed verdict on
this issue.
Wegener and Pribil sought to implement the defense set
forth in § 87-303.07:
If a buyer or lessee is induced by [a deceptive trade
practice] to enter into a sale or lease, the agreement is
unenforceable by the seller or lessor and the buyer or
lessee, at his or her option, may rescind the agreement
or retain the merchandise delivered and the benefit of
any services performed without any obligation to pay
for them.
As the district court pointed out, this section protects a
“buyer” or a “lessee.” A familiar canon of statutory con-
struction—expressio unius est exclusio alterius—suggests that
§ 87-303.07 does not protect guarantors. The aforementioned
canon recognizes that “an expressed object of a statute’s oper-
ation excludes the statute’s operation on all other objects
unmentioned by the statute.” Jacobson v. Shresta, 288 Neb.
615, 623, 849 N.W.2d 515, 521 (2014). Applying the principle
here, the fact that § 87-303.07 specifically lists buyers and
lessees as those protected leads us to conclude that other cat-
egories of individuals—such as guarantors like Wegener and
Pribil—are not.
After determining that § 87-303.07 protected only buyers
and lessees, the district court went on to discuss our opinion
in Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829
N.W.2d 676 (2013). In that case, we held that certain defenses
are personal to the principal debtor and thus a guarantor can-
not escape liability by proving that the principal debtor is not
liable pursuant to such a personal defense. The district court
concluded that § 87-303.07 is such a personal defense and that
thus, Wegener and Pribil, as guarantors, could not use it to
avoid liability.
- 15 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Whatever they may have been arguing before the district
court, however, Wegener and Pribil do not make any argu-
ment to us that the buyer was deceived by Lindsay. Both the
guaranties and the invoices make clear that the buyer of the
pivots was IJS. But Wegener and Pribil argue that they—
guarantors—were deceived by Lindsay. For reasons set forth
above, we have determined that § 87-303.07 offers no protec-
tion to guarantors who claim to have been deceived. And since
Wegener and Pribil make no argument to us that the buyer
was deceived, it is not necessary for us to review whether
§ 87-303.07 is a personal defense that can be raised only by
the principal debtor.
Wegener and Pribil contend that they should have been per-
mitted to proceed under § 87-303.07 notwithstanding the lim-
ited language of the statute because a guarantor has a defense
if fraudulently induced to enter into a guaranty. The only case
they cite in support of this argument, however, is a case in
which the guarantor asserted a general fraud in the induce-
ment defense. See West v. Wegner, 172 Neb. 692, 111 N.W.2d
449 (1961). Here, Wegener and Pribil’s allegations that they
were induced into signing the guaranties by misrepresentations
of Lindsay were submitted to the jury for consideration and
rejected. In any event, the case Wegener and Pribil cite does
not support the notion that they were also entitled to present an
affirmative defense under § 87-303.07. We conclude that the
district court did not err in determining that a defense pursuant
to § 87-303.07 did not apply and in granting Lindsay’s motion
for directed verdict on that defense.
Because the evidence did not support the application of
§ 87-303.07, we also find that the district court did not err in
rejecting the jury instructions tendered by Wegener and Pribil
concerning the UDTPA. To establish reversible error from a
court’s failure to give a requested jury instruction, an appellant
has the burden to show, among other things, that the tendered
instruction was warranted by the evidence. See Rodriguez v.
Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).
- 16 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Admission of Financial Statements.
Over Wegener and Pribil’s objections based on relevance,
the district court received financial statements showing their
net worth. Wegener and Pribil claim that the district court com-
mitted reversible error by admitting this evidence, because it
was not relevant to proving liability and was offered to preju-
dice the jury against them and produce a higher award.
In their brief, Wegener and Pribil argue that evidence of
a defendant’s financial condition is not relevant. They also
argue that admission of such evidence is prejudicial. At trial,
however, Wegener and Pribil objected to the admission of their
financial statements only on relevance grounds. Since a party
may not assert a different ground for an objection to the admis-
sion of evidence than was offered to the trial court, see Werner
v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012), our
review is limited to determining whether the financial state-
ments were relevant.
[11-13] Evidence that is irrelevant is inadmissible. Neb.
Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016);
Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d
235 (2010). 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.” Neb. Evid. R. 401,
Neb. Rev. Stat. § 27-401 (Reissue 2016). The bar for establish-
ing evidentiary relevance is not a high one. Relevancy requires
only that the probative value be “something more than noth-
ing.” State v. Lavalleur, 289 Neb. 102, 115, 853 N.W.2d 203,
214 (2014).
Wegener and Pribil argue that it has long been the law
in Nebraska that evidence of financial standing of the par-
ties is inadmissible. However, our jurisprudence does not
completely bar evidence of financial standing. Rather, the
relevance of such evidence is generally assessed on a case-
by-case basis. See, e.g., Vacek v. Ames, 221 Neb. 333, 377
N.W.2d 86 (1985).
- 17 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
As Lindsay points out, the fact that Lindsay received
financial statements of Wegener and Pribil and relied upon
them in deciding to extend credit to IJS would be helpful to
educate the jury on the background of the transaction. But
Wegener and Pribil’s real objection to the financial statements
is not that the jury learned that they existed and that Lindsay
received them; it is that the financial statements show their
net worth.
Lindsay has relatively little to say about how Wegener’s
and Pribil’s net worth was relevant to the issues in the case.
That said, Wegener and Pribil did not ask that evidence of
their net worth be redacted from the financial statements, and,
furthermore, we can identify at least one way in which their
net worth clears the relatively low relevance threshold. One of
the issues the jury considered was whether Lindsay induced
Wegener and Pribil to enter into the guaranties through mis-
representations. An element of this defense is that the rep-
resentations of Lindsay’s agents substantially contributed to
the decision to guarantee IJS. Evidence of Wegener’s and
Pribil’s relatively significant net worth might tend to rebut
any notion that they were unsophisticated individuals who
were susceptible to being swayed by the representations of
Lindsay’s agents.
Evidence of the guarantors’ net worth may not have been
highly probative on this issue, and Wegener and Pribil may
have had a colorable argument that the potential for prejudice
exceeded the probative value. Even so, we cannot say that the
evidence lacked any probative value. Consequently, we cannot
find that the district court abused its discretion in admitting
the financial statements.
Motion for New Trial.
Finally, Wegener and Pribil argue that the trial court erred
in failing to grant their motion for new trial based on the
directed verdict and the admission of financial statements. An
appellate court reviews a denial of a motion for new trial for
- 18 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
an abuse of discretion. Facilities Cost Mgmt. Group v. Otoe
Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018). Having
concluded that the district court did not err in directing a
verdict as to Wegener and Pribil’s affirmative defenses and
in admitting evidence of their finances, we find no abuse of
discretion in its denial of their motion for new trial.
CONCLUSION
For the foregoing reasons, we find no basis to reverse the
district court’s decision and therefore affirm.
A ffirmed.
Miller-Lerman, J., not participating.