Walker v. Probandt , 25 Neb. Ct. App. 30 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/19/2017 01:10 AM CDT
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WALKER v. PROBANDT
Cite as 25 Neb. App. 30Dennis Walker et al., appellants and
cross-appellees, v. John P robandt,
appellee, and John R aynor,
appellee and cross-appellant.
___ N.W.2d ___
Filed September 12, 2017. No. A-16-844.
1. Default Judgments: Pleadings: Appeal and Error. Whether default
judgment should be entered because of a party’s failure to timely
respond to a petition rests within the discretion of the trial court, and an
abuse of discretion must affirmatively appear to justify reversal on such
a ground.
2. Default Judgments. A trial court should defer entering a default judg-
ment against one of multiple defendants where doing so could result
in inconsistent and illogical judgments following determination on the
merits as to the defendants not in default.
3. Default Judgments: Pleadings: Damages. In the case of an original
action filed in the district court, the failure of a defendant to file a
responsive pleading entitles the plaintiff to a default judgment, without
evidence in support of the allegations of the petition, except as to allega-
tions of value or damages.
4. Negotiable Instruments: Principal and Surety. If an instrument is
issued for value given for the benefit of a party to the instrument
(accommodated party) and another party to the instrument (accommoda-
tion party) signs the instrument for the purpose of incurring liability on
the instrument without being a direct beneficiary of the value given for
the instrument, the instrument is signed by the accommodation party
for accommodation.
5. Negotiable Instruments: Principal and Surety: Words and Phrases.
An accommodation party is one who signs the instrument for the pur-
pose of lending his credit to some other person or party.
6. Promissory Notes: Guaranty. The assignment of a promissory note and
its guaranties to a guarantor does not enhance the guarantor’s right of
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Cite as 25 Neb. App. 30recovery against a coguarantor; rather, recovery against a coguarantor
remains limited to the coguarantor’s proportionate share.
7. Negotiable Instruments: Intent. In determining the identity of the
party accommodated, the intention of the parties is determinative.
8. Actions: Contribution: Time: Liability. Co-obligors to a debt are each
liable for a proportionate share of the debt as a whole, and an action for
contribution does not accrue until a co-obligor has paid more than his or
her proportionate share of the debt as a whole.
9. Negotiable Instruments: Security Interests: Contribution: Liability.
If the obligation of a party is secured by an interest in collateral not
provided by an accommodation party and a person entitled to enforce
the instrument impairs the value of the interest in collateral, the obliga-
tion of any party who is jointly and severally liable with respect to the
secured obligation is discharged to the extent the impairment causes the
party asserting discharge to pay more than that party would have been
obliged to pay, taking into account rights of contribution, if impairment
had not occurred.
10. Security Interests. Impairing value of an interest in collateral includes
failure to obtain or maintain perfection or recordation of the interest
in collateral.
11. Principal and Surety: Words and Phrases. Rights of the surety to
discharge are commonly referred to as “suretyship defenses.”
12. Contracts: Guaranty: Waiver. The defense that a guarantor is dis-
charged by a creditor’s impairment of collateral can be waived by an
express provision in the guaranty agreement.
13. Reformation: Words and Phrases. A mutual mistake is a belief shared
by the parties, which is not in accord with the facts.
14. ____: ____. A mutual mistake is a mistake common to both parties in
reference to the instrument to be reformed, each party laboring under the
same misconception about its instrument.
15. Reformation: Intent. A mutual mistake exists where there has been a
meeting of the minds of the parties and an agreement actually entered
into, but the agreement in its written form does not express what was
really intended by the parties.
16. Reformation: Presumptions: Intent: Evidence. To overcome the pre-
sumption that an agreement correctly expresses the parties’ intent and
therefore should not be reformed, the party seeking reformation must
offer clear, convincing, and satisfactory evidence.
17. Evidence: Words and Phrases. Clear and convincing evidence means
that amount of evidence which produces in the trier of fact a firm belief
or conviction about the existence of a fact to be proved.
18. Uniform Commercial Code: Negotiable Instruments: Words and
Phrases. A holder in due course means the holder takes an instrument
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Cite as 25 Neb. App. 30(1) for value, (2) in good faith, (3) without notice that the instrument is
overdue or has been dishonored or that there is an uncured default with
respect to payment of another instrument issued as part of the same
series, (4) without notice that the instrument contains an unauthorized
signature or has been altered, (5) without notice of any claim to the
instrument described in Neb. U.C.C. § 3-306 (Reissue 2001), and (6)
without notice that any party has a defense or claim in recoupment
described in Neb. U.C.C. § 3-305(a) (Reissue 2001).
19. Contracts: Negotiable Instruments. Unless one has the rights of a
holder in due course, he is subject to all the defenses of any party which
would be available in an action on a simple contract.
20. Breach of Contract: Damages. In a breach of contract case, the ulti-
mate objective of a damages award is to put the injured party in the
same position he would have occupied if the contract had been per-
formed, that is, to make the injured party whole.
21. Damages. As a general rule, a party may not have double recovery for
a single injury, or be made “more than whole” by compensation which
exceeds the actual damages sustained.
22. Actions: Accord and Satisfaction. Where several claims are asserted
against several parties for redress of the same injury, only one satisfac-
tion can be had.
23. Accord and Satisfaction: Damages. Where the plaintiff has received
satisfaction from a settlement with one defendant for injury and dam-
ages alleged in the action, any damages for which a remaining defendant
would be potentially liable must be reduced pro tanto.
24. Actions: Parties. Every action must be prosecuted in the name of the
real party in interest.
25. Actions: Parties: Standing. To determine whether a party is a real party
in interest, the focus of the inquiry is whether that party has standing to
sue due to some real interest in the cause of action, or a legal or equi-
table right, title, or interest in the subject matter of the controversy.
26. Assignments: Words and Phrases. As a general rule, an assignment is
a transfer vesting in the assignee all of the assignor’s rights in property
which is the subject of the assignment.
27. Assignments. The assignee of a thing in action may maintain an action
thereon in the assignee’s own name and behalf, without the name of
the assignor.
28. Assignments: Consideration. An assignee may recover the full value
of an assigned claim regardless of the consideration paid for the
assignment.
29. Pleadings: Evidence. Admissions made in superseded pleadings are no
longer judicial admissions, but, rather, simple admissions.
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Cite as 25 Neb. App. 3030. Contracts: Consideration. Generally, there is sufficient consideration
for a promise if there is any benefit to the promisor or any detriment to
the promisee. What that benefit and detriment must be or how valuable
it must be varies from case to case. It is clear, however, that even “a
peppercorn” may be sufficient.
31. ____: ____. A benefit need not necessarily accrue to the promisor if a
detriment to the promisee is present, and there is a consideration if the
promisee does anything legal which he is not bound to do or refrains
from doing anything which he has a right to do, whether or not there is
any actual loss or detriment to him or actual benefit to the promisor.
32. ____: ____. For the purpose of determining consideration for a promise,
the benefit need not be to the party contracting, but may be to anyone
else at the contracting party’s procurement or request.
Appeal from the District Court for Dawson County: James
E. Doyle IV, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Diana J. Vogt and James D. Sherrets, of Sherrets, Bruno &
Vogt, L.L.C., for appellants.
Patrick M. Heng, of Waite, McWha & Heng, for appellee
John Raynor.
Moore, Chief Judge, and Inbody and R iedmann, Judges.
R iedmann, Judge.
I. INTRODUCTION
This case calls into question the ability of a co-obligor to
settle a claim on a promissory note for less than the amount
due, and in return obtain the authority to direct assignment of
the note to a third party of his choosing for full enforcement
against another co-obligor. Under the facts of this case, we
find recovery must be limited to the amount outstanding on
the note.
II. BACKGROUND
A & G Precision Parts, LLC (Parts LLC), was a limited
liability company whose members at the time of organiza-
tion were Dennis Walker, John Raynor, John Probandt, John
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Cite as 25 Neb. App. 30Brazier, and Walter Glass. The five members of Parts LLC
formed a second limited liability company, A&G Precision
Parts Finance, LLC (Finance LLC).
In 2002, Finance LLC, Walker, Raynor, and Brazier obtained
a loan from Five Points Bank of Grand Island, Nebraska, for
approximately $2.1 million and delivered the proceeds of the
loan to Parts LLC. Parts LLC and Finance LLC (collectively
the LLCs) did not make the loan payments as required, and
the bank made demand for full payment. In September 2004,
Raynor filed personal bankruptcy, and his personal liability
on the Five Points Bank loan was discharged in bankruptcy
in 2005.
In March 2008, the parties negotiated with First State Bank
(FSB) to refinance the Five Points Bank loan. In conjunc-
tion with the loan, Parts LLC, Finance LLC, Walker, Raynor,
Brazier, and Mark Herz signed a promissory note for $1.5 mil-
lion. Under the promissory note, Walker, Raynor, Brazier, and
Herz were cosigners on the loan and assumed joint and several
liability for the repayment of the loan. The LLCs defaulted on
the loan, and FSB commenced this action to recover on the
note in February 2009.
In June 2011, Parts LLC, Finance LLC, Walker, Walker’s
wife, FSB, and Five Points Bank entered into a settlement
agreement and mutual release under which Walker agreed to
pay FSB $1.05 million to settle the claims FSB asserted against
him and the LLCs. In exchange, FSB assigned the FSB note
and related agreements to an entity of Walker’s choosing; he
selected Skyline Acquisition, LLC (Skyline). As a result of the
settlement and assignment, Walker and the LLCs became plain-
tiffs in this action. On the first day of trial, the plaintiffs orally
moved to amend the pleadings to name Skyline as a plaintiff,
and the district court granted the motion.
Walker and the LLCs filed a motion for default judgment
against Probandt on December 15, 2011. They asserted that
Probandt never filed an answer and asked that judgment be
entered against him in the amount of $2,134,832.99. The
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Cite as 25 Neb. App. 30district court denied the motion, finding that entering a default
judgment as to one defendant prior to trial could result in
inconsistent and illogical judgments following determination
on the merits as to the remaining defendants.
Due to various settlement agreements and dismissals, the
parties remaining at trial were Walker, the LLCs, and Skyline
as plaintiffs, and Raynor and Probandt as defendants. Probandt
did not appear at trial. Trial was held on the fourth amended
complaint, which included four operative causes of action—
two against Raynor and two against Probandt. Raynor’s opera-
tive answer asserted several affirmative defenses and two
counterclaims.
After the conclusion of trial, the district court entered an
order which found in favor of Skyline as to one claim against
Raynor but denied the remaining causes of action and Raynor’s
counterclaims. Specifically, the court found that the evidence
established Raynor’s liability to Skyline for repayment of the
FSB note, because the full amount of principal and interest
is due and Raynor has made no payments on the note and is
in default. The court noted that the president of FSB testified
that the principal amount due on the note as of the first day
of trial was $1,430,260. Adding in the accrued interest up to
the time of the court’s order, judgment was entered in favor of
Skyline and against Raynor for $2,306,244.76. In its order, the
court stated that default judgment had previously been entered
against Probandt on the FSB note. Walker, the LLCs, and
Skyline (hereinafter collectively the appellants) appeal, and
Raynor cross-appeals.
III. ASSIGNMENTS OF ERROR
On appeal, the appellants assign that the district court erred
in failing to enter an award of damages against Probandt for
the full amount of the note and for the amount of money
Probandt misappropriated from Parts LLC. On cross-appeal,
Raynor assigns, restated and renumbered, that the district court
erred in (1) failing to apply Nebraska’s Uniform Commercial
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Cite as 25 Neb. App. 30Code (U.C.C.); (2) failing to give effect to the order of the
bankruptcy court; (3) failing to find that he was an accom-
modation party and Walker was an accommodated party; (4)
failing to apply the rule based on Mandolfo v. Chudy, 253 Neb.
927, 573 N.W.2d 135 (1998) (Mandolfo Rule); (5) denying
judgment on his counterclaim for contribution; (6) failing to
find that his obligation on the debt was discharged; (7) failing
to find mutual mistakes of fact; (8) allowing judgment in favor
of Skyline because of lack of consideration; (9) entering judg-
ment in favor of Skyline because Skyline sustained no injury
and received a windfall; (10) failing to treat Walker as the real
party in interest; (11) allowing foreign corporations to pros-
ecute the action without certificates of authority; (12) allow-
ing Walker and the LLCs to take inconsistent positions with
respect to the enforceability of the FSB note; and (13) ignoring
the “sole basis” stipulation.
IV. STANDARD OF REVIEW
A suit for damages arising from breach of a contract, includ-
ing breach of the terms of a promissory note, presents an action
at law. Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369(1998). In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside unless clearly erroneous. Id.V. ANALYSIS
1. Default Judgment Against Probandt
On appeal, the appellants assign that the district court erred
in failing to enter an award of damages against Probandt.
The appellants argue that because Probandt failed to appear
and enter a responsive pleading, and the evidence was suf-
ficient to establish his liability and damages, the court should
have entered a default judgment. We find that the district
court did not abuse its discretion in failing to grant a default
judgment on the unjust enrichment claim, but that it should
have granted a default judgment against Probandt on the
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Cite as 25 Neb. App. 30fraud/misappropriation claim. We therefore reverse the court’s
order denying the appellants’ cause of action for fraud/­
misappropriation against Probandt.
[1,2] Whether default judgment should be entered because
of a party’s failure to timely respond to a petition rests within
the discretion of the trial court, and an abuse of discretion
must affirmatively appear to justify reversal on such a ground.
Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517(1990). In denying the motion for default judgment before trial
in the present case, the district court concluded that entry of
a default judgment prior to trial could result in inconsistent
and illogical judgments following determination on the mer-
its as to the remaining defendants. In reaching its decision,
the district court relied upon State of Florida v. Countrywide
Truck Ins. Agency, 258 Neb. 113, 602 N.W.2d 432 (1999),
in which the Nebraska Supreme Court held that under Frow
v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L. Ed. 60 (1872),
a trial court should defer entering a default judgment against
one of multiple defendants where doing so could result in
inconsistent and illogical judgments following determination
on the merits as to the defendants not in default.
Here, the operative complaint at the time the motion for
default judgment was filed was the second amended complaint;
however, between the date the motion was argued and the
date on which the court entered its order, the appellants filed
a revised third amended complaint. It is upon this complaint
that the court denied the motion. In the revised third amended
complaint, the appellants included two causes of action against
Probandt. The first was a claim for unjust enrichment against
Brazier, Herz, and Probandt. Therein, the complaint alleged
that Brazier, Herz, and Probandt used a portion of the funds
from the FSB loan to satisfy the loan which was owed to
Five Points Bank by the LLCs and guaranteed by Probandt
and Glass. The complaint alleged that because Probandt was
a guarantor of the Five Points Bank loan, he benefited from
the use of the FSB loan to pay off the Five Points Bank loan,
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Cite as 25 Neb. App. 30relieving him of his obligation to Five Points Bank. It fur-
ther alleged that despite demands to pay, Brazier, Herz, and
Probandt failed to pay the amount due.
The second cause of action involving Probandt was for
fraud. This claim alleged that Probandt misappropriated funds
from the original financing of Parts LLC to finance other
business ventures; Probandt took unauthorized payments from
Parts LLC; Probandt took money from Parts LLC and signed a
promissory note in the amount of $64,859 but never repaid the
note; and Probandt used funds of Parts LLC to pay rent on an
apartment and pay personal living expenses.
Although the appellants’ motion for default judgment was
broad, at the hearing on the motion, the appellants’ counsel
limited the scope of her motion. Responding to an objection
to an offered exhibit, she stated, “[T]hese number[s] go to just
amounts that . . . Probandt took for his personal uses. There’s a
separate cause of action against . . . Probandt for misappropria-
tion of funds; and this default judgment only goes to that cause
of action.”
Our review of the revised third amended complaint reveals
that the cause of action to which counsel referred was the fraud/
misappropriation claim. Under this cause of action, appellants
sought recovery from only Probandt for actions he performed
individually. It does not involve the other defendants and
therefore a judgment against Probandt on this cause of action
could not produce conflicting results. We determine that the
court’s analysis under State of Florida v. Countrywide Truck
Ins. Agency, supra, is therefore inapplicable.
[3] In the case of an original action filed in the district court,
the failure of a defendant to file a responsive pleading entitles
the plaintiff to a default judgment, without evidence in support
of the allegations of the petition, except as to allegations of
value or damages. Chapman v. Department of Motor Vehicles,
8 Neb. App. 386, 594 N.W.2d 655 (1999). Because Probandt
failed to file a responsive pleading, the appellants were enti-
tled to a default judgment on their fraud/misappropriation
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Cite as 25 Neb. App. 30cause of action. It was then incumbent upon the appellants to
prove damages.
The appellants argue on appeal that they sufficiently proved
damages at trial via deposition testimony of Rex Hansen, a
certified public accountant, and Herz. We agree that Hansen’s
testimony and the corresponding ledger offered at the close of
appellant’s case in chief establishes damages in the amount
of $2,184,530.
Hansen testified that he classified expenditures by Probandt
into two categories: “Bad” and “Sketch.” According to Hansen,
the “Bad” were expenditures “clearly used for something other
than the daily operations of A&G” and the “Sketch” expendi-
tures were composed of items that he “didn’t understand what
they were. There were some loan guarantees, financing costs,
et cetera.” The “Bad” totaled $2,184,530, and the “Sketch”
totaled $477,661. We determine that the evidence sufficiently
proved that Probandt misappropriated $2,184,530 from the
LLCs; however, the evidence that the “Sketch” items repre-
sented additional misappropriations was insufficient due to
Hansen’s own admission that he did not understand what they
were. Accordingly, the court should have entered a default
judgment against Probandt in the amount of $2,184,530.
Because counsel limited the scope of her pretrial motion for
default judgment to the claim for misappropriation of funds,
the court did not err in failing to grant a default judgment
against Probandt on the unjust enrichment claim. We further
observe that the appellants did not move for default either at
trial or after trial. See, e.g., Forker Solar, Inc. v. Knoblauch,
224 Neb. 143, 396 N.W.2d 273 (1986) (referencing plaintiff’s
motion for default judgment made after trial).
We note that in its memorandum order entered after trial,
the court stated, “During the early stages of the case, the
court entered a default judgment against . . . Probandt on
the plaintiffs’ claims under the First State Bank note.” The
appellants argue that the court’s statement was in error, and
Raynor takes no position on the assigned error. We agree that
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Cite as 25 Neb. App. 30no order is contained in our record granting default judgment
against Probandt. However, we interpret the court’s misstate-
ment to relate to a claim other than the two claims con-
tained in the operative complaint because the district court’s
order specifically rejected these two claims, citing a lack of
proof. Therefore, this misstatement does not constitute revers-
ible error.
2. U.C.C.
On cross-appeal, Raynor posits several arguments with
respect to the U.C.C. He argues that the district court failed
to apply the U.C.C., failed to give effect to the order of the
bankruptcy court, failed to find that he was an accommodation
party and Walker was an accommodated party as defined by
the U.C.C., failed to apply the Mandolfo Rule, erred in deny-
ing judgment on his contribution counterclaim against Walker,
and failed to find that his obligation on the debt was discharged
under the U.C.C.
(a) Failure to Apply U.C.C.
Raynor first claims that the district court erred in failing
to apply the U.C.C. in entering judgment against him on the
FSB note. He does not specify, however, in what way the court
“ignor[ed]” the U.C.C. Brief for appellee on cross-appeal at
30. The parties stipulated that the FSB note is a negotiable
instrument within the meaning of the U.C.C. When the district
court addressed Raynor’s arguments regarding accommodation
and accommodated parties in its order, the court cited to the
U.C.C. Although it disagreed with Raynor’s position, the court
considered certain sections of the U.C.C. in reaching its deci-
sion. We therefore disagree with Raynor’s assertion that the
district court did not address the U.C.C.
(b) Accommodation Party and
Accommodated Party
Raynor next argues that the district court failed to give
effect to the bankruptcy court order to find that he was an
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Cite as 25 Neb. App. 30accommodation party and failed to find that Walker was an
accommodated party. He asserts that because, at the time he
signed the FSB note, he had no ownership in the LLCs and
was not personally liable for the Five Points Bank loan, he
qualifies as an accommodation party under the U.C.C. He
further claims that Walker is an accommodated party and
that under the U.C.C., an accommodated party is prohibited
from seeking contribution from an accommodation party.
Therefore, he argues that the judgment entered against him
is erroneous.
[4] If an instrument is issued for value given for the benefit
of a party to the instrument (accommodated party) and another
party to the instrument (accommodation party) signs the instru-
ment for the purpose of incurring liability on the instrument
without being a direct beneficiary of the value given for
the instrument, the instrument is signed by the accommoda-
tion party “‘for accommodation.’” Neb. U.C.C. § 3-419(a)
(Reissue 2001).
[5] An accommodation party is one who signs the instru-
ment for the purpose of lending his credit to some other per-
son or party. See Bachman v. Junkin, 129 Neb. 165, 260 N.W.
813 (1935). See, also, 10 C.J.S. Bills and Notes § 26 (2008)
(party accommodated is one to whom name of accommodation
party is loaned).
The claim upon which judgment was entered against Raynor
was based on his liability to FSB for nonpayment of the loan.
Specifically, the operative complaint alleges that Raynor was
a maker and guarantor of the promissory note to FSB in the
amount of $1.5 million and that Raynor failed to pay amounts
due on the loan; therefore, FSB, later amended to Skyline as
assignee, is entitled to judgment against Raynor for the out-
standing balance plus interest. The district court agreed, find-
ing that Raynor signed the note but failed to repay the loan
and was therefore liable. In its order, the district court stated
that for “the sake of resolving the claims, the court assumed
Raynor was an accommodation maker.” The court observed
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Cite as 25 Neb. App. 30that as an accommodation party, Raynor remained liable to
FSB, and subsequently to Skyline. His status of an accommo-
dation party would only be relevant in an action for contribu-
tion by the accommodated party. However, because this was
not a cause of action for contribution raised by Walker indi-
vidually, the issue of contribution between an accommodated
party and an accommodation party was immaterial.
We find no error in the district court’s analysis. As stated
above, the claim on the FSB note was prosecuted in the name
of Skyline, the assignee of the note. The court’s judgment was
in favor of Skyline, not Walker. As such, the status of Raynor
and Walker under the U.C.C., and whether Walker is barred
from seeking contribution from Raynor, have no effect on
whether Skyline can recover on the note from Raynor. This
argument therefore lacks merit.
(c) Mandolfo Rule
[6] Raynor next argues that the district court erred in fail-
ing to apply the Mandolfo Rule, which he claims prohibits
enhancing recovery by reason of the assignment of a promis-
sory note after default. See Mandolfo v. Chudy, 253 Neb. 927,
573 N.W.2d 135 (1998). See, also, Rodehorst v. Gartner, 266
Neb. 842, 669 N.W.2d 679 (2003). In the cases Raynor cites,
the Supreme Court held that the assignment of a promissory
note and its guaranties to a guarantor does not enhance the
guarantor’s right of recovery against a coguarantor; rather,
recovery against a coguarantor remains limited to the coguar-
antor’s proportionate share. See, Mandolfo v. Chudy, supra;Rodehorst v. Gartner, supra.In the present case, however, the assignment of the note
was not made to a coguarantor of the note, but, instead, to
Skyline. Raynor argues that Skyline is a mere alter ego of
Walker and that the assignment of the note to Skyline was a
“[s]ham [t]ransaction” because it was done for the sole purpose
of enhancing Walker’s recovery. Brief for appellee on cross-
appeal at 34. We find no evidence in the record to support
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Cite as 25 Neb. App. 30this argument, however, and Raynor cites to none in his brief.
To the contrary, the only evidence regarding Skyline is that it
is owned by Walker and his wife. None of the factors neces-
sary to evaluate the existence of an alter ego were presented.
As such, we find the holdings of Mandolfo and Rodehorst are
inapplicable to the present case and do not prohibit Skyline’s
recovery on the FSB note from Raynor.
(d) Counterclaim for Contribution
Raynor argues that the district court erred in denying his
counterclaim for contribution from Walker, asserting that under
§ 3-419, Walker is the party primarily responsible for the debt
because of his status as an accommodated party. As such,
Raynor argues that his contribution claim should have been
granted. We disagree.
The district court denied Raynor’s contribution claim because
there was no evidence that Raynor had paid any portion of the
FSB debt. Raynor claims this “result ignores the duty of the
Trial Court to fully dispose of all contribution issues of parties
to the controversy regarding the personal liability for unpaid
negotiable instruments according to each party’s pecuniary
obligation pursuant to Nebr. U.C.C., Article 3, Part 4.” Brief
for appellee on cross-appeal at 39.
Assuming without deciding that Raynor was an accom-
modation party, the evidence does not establish that Raynor
signed the note in order to accommodate or benefit Walker; he
stipulated that he signed it to assist Herz who was managing
the business of the LLCs. In essence, Raynor signed it to assist
the LLCs in obtaining the loan. With respect to the instrument,
Walker held the same position Raynor did—that of cosigner
who lent his credit in order to benefit the LLCs.
[7] The fact that Walker was an owner of the LLCs and
received some benefit from the FSB note does not conclusively
establish his status as an accommodated party. See Empson
v. Richter, 113 Neb. 706, 204 N.W. 518 (1925) (mere fact
that party may have received some benefit out of transaction
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Cite as 25 Neb. App. 30does not necessarily determine that he was an accommodated
party). Rather, in determining the identity of the party accom-
modated, the intention of the parties is determinative. See 10
C.J.S. Bills and Notes § 26 (2008). There is no evidence that
Raynor intended to assist Walker in obtaining a loan. Walker
needed no accommodation to secure financing, because the
undisputed evidence establishes that FSB offered financing to
the LLCs based exclusively on Walker’s financial strength and
willingness to cosign. Thus, Raynor and Walker each cosigned
the note in order to assist the LLCs, and therefore, Walker had
no greater liability on the note than did Raynor.
[8] Co-obligors to a debt are each liable for a proportion-
ate share of the debt as a whole, and an action for contribu-
tion does not accrue until a co-obligor has paid more than
his or her proportionate share of the debt as a whole. See
Cepel v. Smallcomb, 261 Neb. 934, 628 N.W.2d 654 (2001).
Accordingly, until Raynor has paid more than his proportionate
share of the debt as a whole, he has no basis for contribution
from Walker or any other co-obligors. As a result, the district
court did not err in denying Raynor’s counterclaim for contri-
bution from Walker.
(e) Discharge of Raynor’s
Obligation
Raynor asserts that because FSB failed to properly secure
Walker’s collateral, his liability on the note is discharged under
Neb. U.C.C. § 3-605 (Reissue 2001). We conclude that this
defense has been waived.
[9-11] If the obligation of a party is secured by an interest
in collateral not provided by an accommodation party and a
person entitled to enforce the instrument impairs the value of
the interest in collateral, the obligation of any party who is
jointly and severally liable with respect to the secured obliga-
tion is discharged to the extent the impairment causes the party
asserting discharge to pay more than that party would have
been obliged to pay, taking into account rights of contribution,
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Cite as 25 Neb. App. 30if impairment had not occurred. § 3-605(f). Impairing value
of an interest in collateral includes failure to obtain or main-
tain perfection or recordation of the interest in collateral. See
§ 3-605(g). Rights of the surety to discharge are commonly
referred to as “suretyship defenses.” § 3-605, comment 1.
[12] Here, however, Raynor waived his right to assert this
defense. According to the promissory note Raynor signed in
conjunction with the FSB loan, Raynor agreed to “waive
any defenses . . . based on suretyship or impairment of col-
lateral.” The defense that a guarantor is discharged by a
creditor’s impairment of collateral can be waived by an express
provision in the guaranty agreement. See Builders Supply
Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645 (2008).
Accordingly, we find that Raynor has waived his right to assert
this defense.
3. Mutual Mistakes of Fact
Raynor argues that he is not liable for the debt to FSB
because of mutual mistakes of fact among the parties. He
argues that the evidence was clear that, at the time the FSB
note was executed, all of the parties to the note mistakenly
believed he retained an ownership interest in the LLCs and
remained personally liable for the Five Points Bank note. He
claims that but for the mistakes of fact, he would not have
executed the FSB note. We find that Raynor failed to meet his
burden of proving that mutual mistakes of fact exist.
[13-15] A mutual mistake is a belief shared by the parties,
which is not in accord with the facts. R & B Farms v. Cedar
Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011). It is a
mistake common to both parties in reference to the instrument
to be reformed, each party laboring under the same misconcep-
tion about its instrument. Id. A mutual mistake exists where
there has been a meeting of the minds of the parties and an
agreement actually entered into, but the agreement in its writ-
ten form does not express what was really intended by the
parties. Id.- 46 -
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Cite as 25 Neb. App. 30[16,17] To overcome the presumption that an agreement
correctly expresses the parties’ intent and therefore should
not be reformed, the party seeking reformation must offer
clear, convincing, and satisfactory evidence. See id. Clear and
convincing evidence means that amount of evidence which
produces in the trier of fact a firm belief or conviction about
the existence of a fact to be proved. Id.Raynor cites to no evidence in the record to support a
conclusion that the promissory note does not express what
was really intended by the parties. To the contrary, the par-
ties intended that FSB would extend the loan in exchange for
the cosigners’ signatures. The promissory note reflects that
intent. The fact that Raynor was no longer liable on the Five
Points Bank debt nor a member of the LLCs is of no effect.
As in R & B Farms v. Cedar Valley Acres, supra, there is
no clear and convincing evidence that the parties mistakenly
believed the contract to mean one thing when in reality it
did not.
The burden was on Raynor to present clear and convincing
evidence to overcome the presumption that the agreement cor-
rectly expresses the parties’ intent. Because he failed to do so,
the district court correctly rejected his argument.
4. Skyline’s Status and
R eal Party in Interest
Raynor asserts several arguments with respect to the abil-
ity of Skyline and the LLCs to prosecute a case against him.
Specifically, he argues that the district court erred in allow-
ing a judgment in favor of Skyline, entering a judgment in
contravention of the Nebraska Constitution, failing to treat
Walker as a substantive owner of the FSB note and instead
treating Skyline as the real party in interest, allowing foreign
limited liability companies to prosecute the action without
certificates of authority, and allowing Walker and the LLCs
to take inconsistent positions on the enforceability of the
FSB note.
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Cite as 25 Neb. App. 30(a) Lack of Consideration
From Skyline
Raynor argues that Skyline does not qualify as a holder
in due course of the FSB note and that therefore, Skyline’s
enforcement of the note against him is subject to the per-
sonal defenses that existed between the original parties to
the instrument.
[18] Neb. U.C.C. § 3-302 (Reissue 2001) provides that a
holder in due course means the holder takes an instrument
(1) for value, (2) in good faith, (3) without notice that the
instrument is overdue or has been dishonored or that there
is an uncured default with respect to payment of another
instrument issued as part of the same series, (4) without
notice that the instrument contains an unauthorized signa-
ture or has been altered, (5) without notice of any claim to
the instrument described in Neb. U.C.C. § 3-306 (Reissue
2001), and (6) without notice that any party has a defense
or claim in recoupment described in Neb. U.C.C. § 3-305(a)
(Reissue 2001).
Here, Skyline does not meet all of the requirements to
qualify as a holder in due course. Despite the language of
the assignment, it does not appear that Skyline paid value for
the note; rather, as evidenced by the language of the settle-
ment agreement, the consideration was paid by Walker, and
upon such payment, FSB agreed to assign the note to Skyline.
In addition, in taking the note, Skyline had notice that the
instrument was overdue, because Walker and his wife are the
only members of Skyline and they both signed the release
which recognized the default of the note. Therefore, although
Skyline is the present holder of the note, it is not a holder in
due course.
[19] Raynor argues that because Skyline does not qualify
as a holder in due course, it is subject to any defenses he
could have asserted against FSB, and we agree. Unless one
has the rights of a holder in due course, he is subject to all the
defenses of any party which would be available in an action
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Cite as 25 Neb. App. 30on a simple contract. See S.I.D. No. 32 v. Continental Western
Corp., 215 Neb. 843, 343 N.W.2d 314 (1983). See, also,
§ 3-305. This would include the defense of set-off. See Davis
v. Neligh, 7 Neb. 78 (1878) (stating that holder not in due
course takes note subject to any right of set-off which maker
had against any prior holder). See, also, Neb. U.C.C. § 3-601
(Reissue 2001) (limiting effectiveness of discharge of obliga-
tion of party to holder in due course of instrument without
notice of discharge); § 3-605, comment 3 (using hypothetical
stating partial payment by one borrower reduces obligation
of coborrower).
[20-23] Furthermore, in a breach of contract case, the ulti-
mate objective of a damages award is to put the injured party
in the same position he would have occupied if the contract
had been performed, that is, to make the injured party whole.
Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d
817 (1998). As a general rule, a party may not have double
recovery for a single injury, or be made “‘more than whole’”
by compensation which exceeds the actual damages sustained.
Id. at 516, 576 N.W.2d at 825. Where several claims are
asserted against several parties for redress of the same injury,
only one satisfaction can be had. Id. Thus, where the plaintiff
has received satisfaction from a settlement with one defendant
for injury and damages alleged in the action, any damages for
which a remaining defendant would be potentially liable must
be reduced pro tanto. See id.Accordingly, in the present case, because Skyline is not a
holder in due course, it is subject to any defense Raynor could
assert against FSB in a simple contract case. In such a case,
Raynor would have a defense against FSB that any amount
for which he is liable on the note must be reduced pro tanto
by the amounts FSB already received in settling the claims
for nonpayment of the note from Walker, Brazier, Herz, and/
or Hansen. FSB is not allowed double recovery from multiple
defendants for the same claim as to the note, and therefore,
Raynor is liable only for the amount remaining on the note
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Cite as 25 Neb. App. 30after subtraction of the amounts FSB received from the set-
tling defendants. Therefore, we reverse the award of dam-
ages entered in favor of Skyline against Raynor and remand
the cause for recalculation of the remaining balance due on
the note.
(b) Skyline Sustained No Injury
Raynor contends that the judgment entered against him was
unconstitutional, because Skyline sustained no legally cogni-
zable injury. In other words, he claims that Skyline was not the
real party in interest. We do not agree.
[24,25] Subject to an exception not relevant here, every
action must be prosecuted in the name of the real party in
interest. Neb. Rev. Stat. § 25-301 (Reissue 2016). To deter-
mine whether a party is a real party in interest, the focus of the
inquiry is whether that party has standing to sue due to some
real interest in the cause of action, or a legal or equitable right,
title, or interest in the subject matter of the controversy. Eli’s,
Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999).
[26-28] As a general rule, an assignment is a transfer vest-
ing in the assignee all of the assignor’s rights in property
which is the subject of the assignment. Id. The assignee
of a thing in action may maintain an action thereon in the
assignee’s own name and behalf, without the name of the
assignor. Neb. Rev. Stat. § 25-302 (Reissue 2016). An assignee
may recover the full value of an assigned claim regardless
of the consideration paid for the assignment. Eli’s, Inc. v.
Lemen, supra.In the instant case, FSB assigned to Skyline all of its rights
conferred by the terms of the promissory note and term loan
agreement which are the subject of this action. The cause
of action upon which judgment was entered against Raynor,
FSB, or Skyline alleged that Raynor signed the FSB note, the
note was in default, and Raynor failed to satisfy the debt. As
the assignee of FSB’s right to collect on the loan, Skyline was
permitted to maintain an action against Raynor and pursue
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Cite as 25 Neb. App. 30any rights that FSB had to recover on the note. Although lack
of consideration is a factor in Skyline’s becoming a holder in
due course, it does not void the assignment. As a result, we
find no merit to this argument.
(c) Unconstitutional Windfall
in Favor of Skyline
Raynor also argues that the award in favor of Skyline was
an unconstitutional windfall for Skyline because the district
court refused to consider the settlements of Walker, Brazier,
Hansen, and Herz. We agree. As set forth above, Skyline was
not a holder in due course. It was therefore allowed to col-
lect only the remaining balance on the note. The district court
should have taken into consideration the settlement amounts
paid by Walker, Brazier, Hansen, and Herz. As stated above,
we remand the cause for recalculation of the unpaid balance.
(d) Certificates of Authority
Raynor argues that the LLCs were dissolved before this
action was commenced and never had certificates of author-
ity to do business in Nebraska. Thus, he claims, they have no
standing as plaintiffs in Nebraska courts under Neb. Rev. Stat.
§ 21-162(a) (Reissue 2012).
The cause of action upon which judgment was entered
against Raynor was the claim of FSB, later assigned to Skyline.
The LLCs are not the plaintiffs with respect to the claim at
issue in Raynor’s argument. In ruling on this claim, the dis-
trict court found that judgment should be entered on the FSB
note in favor of Skyline. Therefore, whether the LLCs having
standing as plaintiffs in a Nebraska court has no bearing on
Raynor’s liability to Skyline.
(e) Inconsistent Positions on
Enforceability of FSB Note
Raynor claims that initially Walker and the LLCs argued
that the FSB note was unenforceable for various reasons, but
once they settled and became plaintiffs, they took an opposite
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Cite as 25 Neb. App. 30position. He argues that the assertions Walker and the LLCs
made in their early pleadings constitute judicial admissions
and that they should be estopped from asserting an inconsist­
ent position now.
[29] As discussed above, neither Walker nor the LLCs are
the plaintiffs in the relevant cause of action against Raynor. It
is FSB by way of Skyline that is asserting the enforceability of
the note. Thus, Walker’s and the LLCs’ positions with respect
to the note are irrelevant to our analysis as to whether judg-
ment was erroneously entered against Raynor. Furthermore,
admissions made in superseded pleadings are no longer judicial
admissions, but, rather, simple admissions. Cook v. Beermann,
202 Neb. 447, 276 N.W.2d 84 (1979). We therefore reject
this argument.
5. Sole Basis Stipulation
Raynor argues that the district court’s judgment was con-
trary to the parties’ stipulation that the sole basis for seeking
recovery against him was his expressed intent to assist Herz.
We understand this stipulation to be the parties’ recognition
that Raynor was not an owner or member of the LLCs at the
time the FSB note was signed nor was he personally liable on
the Five Points Bank note. The dispute appears to arise out of
whether Raynor’s intended assistance to Herz is sufficient con-
sideration to support the FSB note.
[30-32] Generally, there is sufficient consideration for a
promise if there is any benefit to the promisor or any detriment
to the promisee. Kissinger v. Genetic Eval. Ctr., 260 Neb. 431,
618 N.W.2d 429 (2000). What that benefit and detriment must
be or how valuable it must be varies from case to case. It is
clear, however, that even “‘a peppercorn’” may be sufficient.
Id. at 439, 618 N.W.2d at 436. A benefit need not necessarily
accrue to the promisor if a detriment to the promisee is pres-
ent, and there is a consideration if the promisee does anything
legal which he is not bound to do or refrains from doing
anything which he has a right to do, whether or not there is
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Cite as 25 Neb. App. 30any actual loss or detriment to him or actual benefit to the
promisor. Id. For the purpose of determining consideration for
a promise, the benefit need not be to the party contracting, but
may be to anyone else at the contracting party’s procurement
or request. Id.In the present case, a detriment to the promisee is present:
FSB issued a loan to the LLCs, a legal act which it was not
bound to do. Raynor argues that he, as the promisor, did not
receive a benefit from the loan because he was not an owner
of the LLCs at the time of the loan and was not personally
liable on the Five Points Bank loan. There is no requirement,
for purposes of consideration, that Raynor personally received
a benefit; his stated intention to assist Herz is sufficient consid-
eration, because Herz received a personal benefit via the loan
proceeds. Accordingly, this argument lacks merit.
VI. CONCLUSION
We conclude that the district court abused its discretion in
declining to enter default judgment against Probandt on the
fraud/misappropriation cause of action, and we remand the
cause to the district court with directions to enter a default
judgment against Probandt in the amount of $2,184,530.
We find no error in the decision to enter judgment in favor
of Skyline against Raynor. However, the district court erred in
failing to award a credit against the judgment for the amounts
received in settlement, and we remand the cause for recalcula-
tion of this amount.
A ffirmed in part, and in part reversed
and remanded with directions.