Lindsay Int'l Sales & Serv., LLC v. Wegener
| Decision Date | 07 September 2018 |
| Docket Number | No. S-16-1051,S-16-1051 |
| Parties | LINDSAY INTERNATIONAL SALES & SERVICE, LLC, appellee, v. Michael J. WEGENER, an individual, and Jerome Pribil, an individual, appellants. |
| Court | Nebraska Supreme Court |
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., Lincoln, and Barry D. Geweke, of Stowell & Geweke, P.C., L.L.O., Ord, for appellants.
John M. Lingelbach and John V. Matson, of Koley Jessen, P.C., L.L.O., Omaha, for appellee.
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 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.
This case has its genesis in Wegener and Pribil’s participation 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 equipment 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 farming expertise.
Beginning in November 2012, Wegener and Pribil had discussions 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 director 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 representations 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 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.
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.PR. 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.
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 transferred 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.
Months after the pivots were shipped, Wegener and Pribil sent letters to Lindsay attempting to cancel the guaranty agreements. 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 consideration, 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 matter proceeded to a jury 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 affirmative defenses of failure of consideration, impairment of collateral, 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 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 prevented a fair trial, excessive damages resulting from passion or prejudice, error in assessing the amount of recovery, insufficient 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).
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 impairment 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 instruction regarding the UDTPA, (5) in admitting evidence of their personal financial conditions, and (6) in failing to grant their motion for new trial.
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 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. Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017). 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. Id.
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.
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.
A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly...
To continue reading
Request your trial
-
Dick v. Koski Prof'l Grp., P.C.
...B. Thompson, O'Neal’s Close Corporation and LLCs: Law and Practice § 4:33 (rev. 3d ed. 2018).67 See Lindsay Internat. Sales & Serv. v. Wegener , 301 Neb. 1, 917 N.W.2d 133 (2018). See, also, e.g., Zakibe v. Ahrens & McCarron, Inc. , 28 S.W.3d 373 (Mo. App. 2000).68 Strohmyer v. Papillion Fa......
-
Buttercase v. Davis
...25 L. Ed. 2d 1 (1970).55 Id. , 397 U.S. at 9, 90 S.Ct. 763.56 United States v. Kordel, supra note 54.57 Lindsay Internat. Sales & Serv. v. Wegener , 301 Neb. 1, 917 N.W.2d 133 (2018).58 See id.59 State v. Devers , 306 Neb. 429, 945 N.W.2d 470 (2020).60 Id.61 Id.62 See id.63 Brown v. Jacobse......
-
State v. Brown
...such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133 (2018). An appellate court will not disturb a sentence imposed within statutory limits absent an abuse of discretion......
-
Buttercase v. Davis
...at 9. [56] United States v. Kordel, supra note 54. [57] Lindsay Internal Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133 (2018). [58] See id. [59] State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020). [60]Id. [61]id. [62]See id. [63] Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 9......