Rodehorst v. Gartner

• Decision Date: 10 October 2003
• Docket Number: No. S-02-795, No. S-02-796.
• Parties: Keith E. RODEHORST, Appellant, v. Lori A. GARTNER, Appellee.
• Court: Nebraska Supreme Court

669 N.W.2d 679

266 Neb. 842

Keith E. RODEHORST, Appellant, v. Lori A. GARTNER, Appellee.

Nos. S-02-795, S-02-796.

Supreme Court of Nebraska.

October 10, 2003.

Michael R. Snyder, of Snyder & Hilliard, Kearney, for appellant.

Bradley D. Holbrook, of Jacobsen, Orr, Nelson, Wright & Lindstrom, P.C., Kearney, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Keith E. Rodehorst brought separate actions against Lori A. Gartner (Gartner) seeking contribution for payments which Rodehorst made to Exchange Bank (the Bank) on two promissory notes following default by Premiere Motors, L.L.C. (Premiere). The district court sustained Gartner's demurrers and dismissed the actions, concluding as a matter of law that Rodehorst had no right to seek contribution from Gartner. Rodehorst perfected timely appeals in each case. The appeals were moved to our docket pursuant to Neb.Rev.Stat. § 24-1106(3) (Reissue 1995) and consolidated for oral argument and disposition.

FACTS

We summarize here the factual allegations in Rodehorst's operative amended petitions, which, for purposes of reviewing rulings on a demurrer, we are required to accept as true. See Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003). On or about April 15, 1998, the Bank made an operating loan to Premiere in the amount of $150,000. In exchange, Premiere gave the Bank promissory note No. 23345, in the principal sum of $150,010. The note was signed by Premiere's members, Jonathan D. Coleman, Philip S. Mack, and Richard R. Gartner, and cosigned by the members' wives, Heidi J. Coleman, Dana M. Mack, and Gartner. The terms of the note provided in part:

Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability.... All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several.

Also on April 15, seven individuals, including both Rodehorst and Gartner, signed and delivered to the Bank personal guaranties for the indebtedness of Premiere. The guaranties were identical and provided in relevant part:

CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, [Guarantor] absolutely and unconditionally guarantees and promises to pay to EXCHANGE BANK ("Lender") or its order ... the indebtedness... of PREMIERE MOTORS, L.L.C. ("Borrower") to Lender on the terms and conditions set forth in this Guaranty....

. . . .

Indebtedness. The word "Indebtedness" is used in its most comprehensive sense and means and includes any and all of Borrower's liabilities, obligations, debts, and indebtedness to Lender, now existing or hereinafter incurred or created....

. . . .

GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender... (b) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the indebtedness or in connection with the creation of new or additional loans or obligations; (c) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor....

(Emphasis omitted.)

On July 7, 1998, the Bank loaned Premiere an additional amount of $60,478.71, in exchange for promissory note No. 23569. This note was signed only by Philip Mack in his capacity as "manager" of Premiere. On August 11, 1998, Premiere gave the Bank promissory note No. 23661, in the sum of $250,000, in order to renew and extend notes Nos. 23345 and 23569. Promissory note No. 23661 was signed by Premiere's three members.

In August 1999, during a routine inspection of Premiere's inventory, the Bank discovered that inventory valued at approximately $100,000 could not be accounted for. Therefore, on August 16, the Bank reduced Premiere's $250,000 operating line, represented by promissory note No. 23661, to $150,000 by transferring $100,000 of the indebtedness to a term note, promissory note No. 24642, and issuing promissory note No. 24641 in the principal sum of $150,000 as a partial renewal of the operating line. Promissory notes Nos. 24641 and 24642 were signed by members Jonathan Coleman and Richard Gartner and cosigned by Rodehorst. Promissory note No. 24641 was renewed by note No. 25822, given to the Bank on August 25, 2000. This note was signed by member Jonathan Coleman and cosigned by Rodehorst.

Premiere defaulted on the payment of promissory notes Nos. 24642 and 25822 by failing to make principal and interest payments. Despite the Bank's demand for payment on the notes, Premiere, its members, and their wives (who were guarantors) failed and refused to pay the notes. On December 3, 2001, Rodehorst paid the amount then due, $87,787.37 principal and $2,490.51 interest, to the Bank in full satisfaction of promissory note No. 24642. On that same date, Rodehorst paid the amount due, $121,869.94, on promissory note No. 25822 and the Bank assigned that note to Rodehorst, who is now its owner and holder.

The Bank advanced the loan proceeds as set forth herein directly to Premiere and its members. Rodehorst was never advanced funds by the Bank in connection with any of the loans to Premiere, and he was not a direct beneficiary of the loans. Premiere, its members, and their wives, including Gartner, have refused to pay or to contribute to Rodehorst all or their proportionate share of promissory notes Nos. 24642 and 25822. Rodehorst is not related to any member of Premiere.

ASSIGNMENTS OF ERROR

Rodehorst assigns, restated, that the trial court erred by dismissing these actions after sustaining Gartner's demurrers and denying Rodehorst leave to amend his petitions.

STANDARD OF REVIEW

In an appellate court's review of a ruling on a demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003); Regier v. Good Samaritan Hosp., 264 Neb. 660, 651 N.W.2d 210 (2002). In determining whether a cause of action has been stated, a petition is to be construed liberally; if, as so construed, the petition states a cause of action, the demurrer is to be overruled. McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002); Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001). Whether a petition states a cause of action is a question of law, regarding which an appellate court has an obligation to reach a conclusion independent of that of the inferior court. Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003); Rodriguez v. Nielsen, 264 Neb. 558, 650 N.W.2d 237 (2002).

ANALYSIS

EQUITABLE CONTRIBUTION

Rodehorst seeks to enforce the equitable right of contribution among joint obligors articulated in Exchange Elevator Company v. Marshall, 147 Neb. 48, 59, 22 N.W.2d 403, 410 (1946), as follows:

"Finally, the most important doctrine, perhaps, which results from the principle, Equality is equity, is that of contribution... among joint debtors, co-sureties, co-contractors, and all others upon whom the same pecuniary obligation arising from contract, express or implied, rests. This doctrine is evidently based upon the notion that the burden in all such cases should be equally borne by all the persons upon whom it is imposed, and its necessary effect is to equalize that burden whenever one of the parties has, in pursuance of his mere legal liability, paid or been compelled to pay the whole amount, or any amount greater than his proportionate share...."

(Emphasis in original.) Quoting 2 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 411 (5th ed.1941). Further quoting Pomeroy's treatise, we stated:

"Where there are two or more sureties for the same principal debtor, and for the same debt or obligation, whether on the same or on different instruments, and one of them has actually paid or satisfied more than his proportionate share of the debt or obligation, he is entitled to a contribution from each and all of his co-sureties, in order to reimburse him for the excess paid over his share, and thus to equalize their common burdens.... The right, however, may be controlled or modified by express agreement among the co-sureties or debtors. The doctrine of contribution rests upon the maxim, Equality is equity...."

Id., quoting 4 Pomeroy, supra, § 1418. More recently, in discussing the principles of contribution among joint tort-feasors, we stated that "`"general principles of justice require that in the case of a common obligation, the discharge of it by one of the obligors without proportionate payment from the other, gives the latter an advantage to which he is not equitably entitled."'" Northland Ins. Co. v. State, 242 Neb. 10, 15, 492 N.W.2d 866, 870 (1992), quoting Royal Ind. Co. v. Aetna Cas. & Sur. Co., 193 Neb. 752, 229 N.W.2d 183 (1975).

In this case, both Rodehorst and Gartner guaranteed the promissory notes in question, but Rodehorst also cosigned the notes. The district court concluded that as a cosignor, Rodehorst's liability was primary, whereas Gartner's was secondary. Thus, the district court held that Rodehorst was not legally entitled to seek contribution from Gartner. On appeal, Rodehorst argues that because he cosigned the notes as an accommodation party, his obligation on the notes was the same as that of Gartner, and his payment therefore gave rise to an equitable right of contribution. Resolution of this issue requires an examination...