Cattle Nat. Bank & Trust Co. v. Watson

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/24/2016 09:09 AM CDT
- 943 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943The Cattle National Bank & Trust Co., appellee, v.
Robert Watson and Shona Watson, appellees, and
Bill Watson and R ebecca Watson, appellants.
The Cattle National Bank & Trust Co., appellee, v.
Robert Watson, appellant and cross-appellee,
Shona Watson, appellee and cross-appellee,
and Bill Watson and R ebecca Watson,
appellees and cross-appellants.
___ N.W.2d ___
Filed June 24, 2016. Nos. S-15-512, S-15-872.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
the facts and that the moving party is entitled to judgment as a matter
of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Contracts: Judgments: Appeal and Error. The meaning of a contract
is a question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations
made by the court below.
4. Actions: Parties: Judgments: Appeal and Error. Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2008) requires, in cases with multiple claims
or parties, an explicit adjudication with respect to all claims or parties
or, failing such explicit adjudication of all claims or parties, an express
determination that there is no just reason for delay of an appeal of an
order disposing of less than all claims or parties and an express direction
for the entry of judgment as to those adjudicated claims or parties.
- 944 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 9435. Summary Judgment: Proof. A party moving for summary judgment
must make a prima facie case by producing evidence to demonstrate that
the movant is entitled to judgment if the evidence were uncontroverted
at trial.
6. ____: ____. Once the moving party makes a prima facie case, the bur-
den to produce evidence showing the existence of a material issue of
fact that prevents judgment as a matter of law shifts to the party oppos-
ing the motion.
7. Contracts: Guaranty: Debtors and Creditors: Words and Phrases. A
guaranty is a contract by which the guarantor promises to make payment
if the principal debtor defaults.
8. Contracts: Guaranty. A guaranty is interpreted using the same general
rules as are used for other contracts.
9. Contracts: Guaranty: Appeal and Error. To determine the obligations
of the guarantor, an appellate court relies on general principles of con-
tract and guaranty law.
10. Guaranty: Liability. When the meaning of a guaranty is ascertained, or
its terms are clearly defined, the liability of the guarantor is controlled
absolutely by such meaning and limited to the precise terms.
11. Actions: Contracts: Guaranty. A suit on a contractual guaranty pre­
sents an action at law.
12. Actions: Parties. The purpose of Neb. Rev. Stat. § 25-301 (Reissue
2008) is to prevent the prosecution of actions by persons who have no
right, title, or interest in the cause.
13. Actions: Parties: Standing. The focus of the real party in interest
inquiry is whether the 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.
14. ____: ____: ____. The purpose of the real party in interest inquiry is to
determine whether the party has a legally protectable interest or right in
the controversy that would benefit by the relief to be granted.
15. Declaratory Judgments. In Nebraska, a party may not simply move the
court for a declaratory judgment.
16. Right to Counsel: Effectiveness of Counsel. A self-represented litigant
will receive the same consideration as if he or she had been represented
by an attorney, and, concurrently, that litigant is held to the same stan-
dards as one who is represented by counsel.
17. Judgments: Garnishment: Jurisdiction. A garnishment in aid of exe-
cution issued before judgment is without jurisdiction and void, and not
merely irregular.
18. Judgments: Debtors and Creditors. An execution issued without a
judgment to support it is void.
- 945 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 94319. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
20. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction over an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
21. Final Orders: Appeal and Error. There are three types of final orders
that may be reviewed on appeal under the provisions of Neb. Rev. Stat.
§ 25-1902 (Reissue 2008): (1) an order which affects a substantial right
in an action and which in effect determines the action and prevents a
judgment, (2) an order affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right made on sum-
mary application in an action after judgment is rendered.
22. Final Orders: Words and Phrases. A substantial right under Neb. Rev.
Stat. § 25-1902 (Reissue 2008) is an essential legal right.
23. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to an appellant before the order form
which an appeal is taken.
24. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902(Reissue 2008) include those legal rights that a party is entitled to
enforce or defend.
25. Summary Judgment: Claims: Garnishment. An interlocutory order
granting summary judgment on fewer than all of the claims in an action
cannot serve as the judgment required for an execution or garnishment
in aid of execution.
26. Final Orders. Since Neb. Rev. Stat. 25-1315(1) (Reissue 2008) is sub-
stantially similar to Fed. R. Civ. P. 54(b), federal cases construing rule
54(b) may be used for guidance in determining when a decision is a
“final judgment” for purposes of § 25-1315(1).
27. Appeal and Error. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.
28. Judgments: Collateral Attack. A void order may be attacked at any
time in any proceeding.
Appeals from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Final orders in No. S-15-512
vacated. Judgment in No. S-15-872 affirmed.
Bill Watson and Rebecca Watson, pro se, in Nos. S-15-512
and S-15-872.
- 946 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943John M. Guthery, of Perry, Guthery, Haase & Gessford, P.C.,
L.L.O., for appellee The Cattle National Bank & Trust Co., in
Nos. S-15-512 and S-15-872.
Robert Watson, pro se, in No. S-15-872.
Justin J. Knight, of Perry, Guthery, Haase & Gessford,
P.C., L.L.O., and Michael C. Cox, of Koley Jessen, P.C.,
L.L.O., for appellee The Cattle National Bank & Trust Co., in
No. S-15-872.
Heavican, C.J., Wright, Connolly, Cassel, and K elch, JJ.
Cassel, J.
I. INTRODUCTION
A bank’s action against four guarantors on their respective
personal guaranties of an entity’s debts has generated three
appeals by various guarantors. The first appeal was taken after
the district court granted the bank’s motions for summary judg-
ment but failed to adjudicate a cross-claim. The second appeal
was taken from execution and garnishment proceedings that
occurred while the first appeal was pending. Because of the
undisposed cross-claim, the Nebraska Court of Appeals dis-
missed the first appeal. One guarantor then moved to vacate
the summary judgment order. The district court denied the
motion and simultaneously dismissed the pending cross-claim.
The third appeal followed. We consider it first.
The third appeal raises three issues. First, were the guaran-
tors bound by the second page of the document? They were,
because the first page incorporated the second page and defined
“Undersigned” to include them. Second, can a guarantor assert
defenses arising from the entity’s underlying debt? For various
reasons, he cannot. Finally, did the district court err in failing
to vacate the summary judgment order? Because the guarantor
conflated the order’s initial lack of finality with its validity, the
court correctly overruled the motion. In the third appeal, we
affirm the district court’s judgment.
- 947 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943In the second appeal, the guarantors now argue a new
ground—that the execution and garnishment proceedings
were void because they were commenced prior to judgment.
Although the interlocutory order granting summary judgment
motions was not void, it was not a “judgment” sufficient to
support execution or garnishment in aid of execution. The
interlocutory order ultimately became part of a judgment. But
this did not validate the void process. We therefore vacate the
void execution and garnishments.
II. BACKGROUND
1. Guaranties
The action proceeded against four members of the Watson
family—Robert Watson, Shona Watson, Bill Watson, and
Rebecca Watson (collectively the Watsons). Robert, Shona, and
Rebecca were members of Reserve Design, LLC (Reserve),
a construction business. In 2007, the Watsons signed identi-
cal personal guaranties for the debts that Reserve owed to
The Cattle National Bank & Trust Co. (Bank). The guaranties
expressly included Reserve’s future indebtedness.
Each of the guaranties consisted of a single sheet of paper
with print on both sides. The pages were labeled “page 1 of 2”
and “page 2 of 2.” The Watsons’ signatures appear at the bot-
tom of page 1, and there is no dispute that they signed page 1.
Although page 2 included what appear to be lines for initials,
none of the Watsons initialed or otherwise signed page 2.
Several provisions on page 1 are relevant. First, a defini-
tion stated: “‘Undersigned’ shall refer to all persons who sign
this guaranty, severally and jointly.” This definition appeared
immediately below the last signature line and within its width.
The term “Undersigned,” appearing in the same initially capi-
talized form, was used throughout the document. Second, a
provision on the first page stated:
[T]he Undersigned guarantees to [the Bank] the payment
and performance of each and every debt, liability and
obligation of every type and description which [Reserve]
- 948 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943may now or at any time hereafter owe to [the Bank]
(whether such debt, liability or obligation now exists or is
hereafter created or incurred[)].
Third, the first page provided that the liability of “the
Undersigned” was “UNLIMITED.” Finally, page 1 stated, in
bold type: “This guaranty includes the additional provisions on
page 2, all of which are made a part hereof.”
Page 2 consisted of eight additional provisions. One per-
tained to the waiver of defenses. It stated, in relevant part:
The Undersigned waives any and all defenses, claims and
discharges of [Reserve], or any other obligor, pertaining
to Indebtedness, except the defense of discharge by pay-
ment in full. Without limiting the generality of the fore-
going, the Undersigned will not assert, plead or enforce
against [the Bank] any defense of . . . fraud . . . which
may be available to [Reserve] or any other person liable
in respect of any Indebtedness . . . .
Another provided that the Bank could “enter into transactions
resulting in the creation or continuance of Indebtedness, with-
out any consent or approval by the Undersigned and without
any notice to the Undersigned.”
2. Loan
In 2010, 3 years after the guaranties had been given to
the Bank, the Bank loaned Reserve $40,000 (loan). Robert
signed a loan agreement on behalf of Reserve as “Rob Watson,
Manager.” And he extended the loan’s maturity date on three
later occasions, signing each extension as “Rob Watson,
Manager.” Robert claims that the Bank’s loan officer prom-
ised him that if he signed the loan on behalf of Reserve, the
officer would later rewrite it as a third mortgage for Robert’s
personal residence. The loan was never rewritten as Robert’s
personal obligation.
In 2012, Reserve failed to make a required payment on the
loan, and the Bank declared default and demanded payment
from the Watsons on the guaranties. The Watsons refused to
- 949 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943pay. The Bank filed a complaint for breach of guaranty, naming
the Watsons as defendants.
Robert’s amended answer included a counterclaim for fraud
in the inducement. He claimed that he was fraudulently induced
to sign the loan in his capacity as manager of Reserve. He also
claimed that he was not bound by the terms on page 2 of the
guaranty, because he did not “undersign” it. Bill and Rebecca’s
answer asserted numerous defenses, but it did not assert the
absence of signatures or initials on page 2. Shona’s answer
included a cross-claim against Robert.
3. Summary Judgment
Robert and the Bank each filed motions for summary
judgment as to the breach of guaranty claims and Robert’s
counterclaim. One of Robert’s motions included a motion
“for Declaratory Judgment on contractual effect of Personal
Guarantees.”
The district court sustained the Bank’s motions and over-
ruled Robert’s motions in an October 17, 2014, order (hereinaf-
ter summary judgment order). Regarding the Bank’s claims for
breach of guaranty, it observed that there was no dispute that
the Watsons all signed the guaranties for the debt of Reserve.
And it noted that the guaranties provided that the Bank could
enter transactions resulting in the creation or continuance of
indebtedness without the Watsons’ notice or approval.
Regarding Robert’s counterclaim for fraud in the induce-
ment, the court first concluded that Robert was not a real party
in interest, because Reserve and the Bank were the only two
parties to the loan agreement. Therefore, because Reserve was
not a party to the action, Robert could not raise a claim for
fraud on its behalf. Second, it concluded that even if Reserve
was a party to the action, the defense of fraud in the induce-
ment was not available to the Watsons, because it was waived
under the terms on page 2. Finally, the court concluded that
Robert’s motion for a declaratory judgment was improper,
because the request was not made in the pleadings.
- 950 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943The court entered “judgment” for the Bank “against the
[Watsons] jointly and severally in the amount of $30,000 plus
interest of $1,839.45.” The summary judgment order did not
address Shona’s cross-claim against Robert, and it did not
direct the entry of final judgment pursuant to Neb. Rev. Stat.
§ 25-1315 (Reissue 2008).
Robert, Bill, and Rebecca filed the first appeal. It was dock-
eted in the Court of Appeals as case No. A-14-1028.
4. Execution and Garnishment
While the first appeal was pending, the Bank apparently
filed requests for writs of execution and garnishment, but its
requests are not in our record. The district court appears to
have issued the requested writs, but they, too, are not in our
record. In response, Robert and Bill filed objections to garnish-
ment and Bill and Rebecca filed an objection to execution.
These filings are also not in our record.
The court overruled the objections in two June 8, 2015,
orders, which are in our record. One concluded that the Bank
could proceed with the garnishments, because Robert and Bill
failed to show that they did not owe the debts in question.
And the other concluded that the Bank could proceed with the
execution, because Bill and Rebecca made no showing that
their property was exempt. According to the bill of exceptions,
there was no discussion at the hearing regarding whether the
summary judgment order was appealable or whether it was
a “judgment” sufficient to support a writ of execution or
garnishment.
Bill and Rebecca quickly filed the second appeal. It is
docketed in this court as case No. S-15-512. Although the
parties argue that an execution sale of a vehicle owned by
Bill and Rebecca took place after June 8, 2015, neither the
writ of execution nor any return of the writ is included in
our record.
To the extent shown in our record, the events that followed
are summarized below:
- 951 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943• July 8, 2015: Court of Appeals dismissed the first appeal,
concluding that the summary judgment order was not final
and appealable, because Shona’s cross-claim against Robert
was still pending.
• July 17, 2015: Robert filed motion in district court to vacate
the summary judgment order.
• August 25, 2015: District court dismissed Shona’s cross-
claim and overruled Robert’s motion to vacate.
• September 17, 2015: Robert filed notice of the third appeal,
which was taken from the summary judgment order and the
order overruling his motion to vacate. The third appeal is
docketed in this court as case No. S-15-872.
• September 18, 2015: Bill and Rebecca filed a notice of appeal
from the summary judgment order. Our clerk treated this as a
second notice of appeal1 in the third appeal.
We moved the second and third appeals to our docket,2 and
we consolidated them for argument and disposition.
III. ASSIGNMENTS OF ERROR
1. Second A ppeal (No. S-15-512)
Bill and Rebecca assign that the district court erred by
“[i]ssuing an order to execute and garnish on the statutorily
deficient” summary judgment order.
2. Third A ppeal (No. S-15-872)
Robert assigns, restated and consolidated, that the district
court erred in (1) finding that there was no genuine issue of
material fact regarding whether he is bound by the terms on
page 2, (2) failing to consider his defense of fraud, (3) failing
to find that the Bank has unclean hands, (4) finding that he
was not a real party in interest in his counterclaim, (5) fail-
ing to consider his request for a declaratory judgment, and (6)
failing to vacate the summary judgment order after the Court
1
See Neb. Ct. R. App. P. § 2-101(C) (2014).
2
Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
- 952 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943of Appeals, in Robert’s words, “found the [o]rder was statuto-
rily insufficient and non-final.”
On cross-appeal, Bill and Rebecca assign that the district
court erred in (1) finding that there was no genuine issue
of material fact regarding whether they were bound by the
provisions on page 2 of the guaranty, (2) not finding that the
Bank was required to give them “notice of further obligation
under the personal guaranties,” and (3) finding that they are
obligated on the loan, even though they were not notified
of it.
IV. STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law.3 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.4
[3] The meaning of a contract is a question of law, in con-
nection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below.5
V. ANALYSIS
1. Third A ppeal (No. S-15-872)
Because the third appeal reaches the merits of the summary
judgment order, we address it first. In both Robert’s appeal
and Bill and Rebecca’s cross-appeal, they contend that there
3
Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
4
Id.5
Braunger Foods v. Sears, 286 Neb. 29, 834 N.W.2d 779 (2013).
- 953 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943was a genuine issue of material fact regarding whether they
were bound by the provisions on page 2. Robert also attacks
the summary judgment order on other grounds and appeals
from the denial of his motion to vacate the summary judg-
ment order.
(a) Jurisdiction
We have jurisdiction of the third appeal. Although nearly
a year had expired after the entry of the summary judgment
order, it did not become final or appealable until the dismissal
of Shona’s cross-claim.
[4] We have made it clear that § 25-1315(1) requires, in
cases with multiple claims or parties, an explicit adjudication
with respect to all claims or parties or, failing such explicit
adjudication of all claims or parties, an express determination
that there is no just reason for delay of an appeal of an order
disposing of less than all claims or parties and an express
direction for the entry of judgment as to those adjudicated
claims or parties.6
Despite its terminology, the summary judgment order
was not a “judgment,” because it failed to adjudicate the
cross-claim. And the order clearly does not include the lan-
guage which might have purported to authorize an imme-
diate appeal.7 When the district court dismissed Shona’s
cross-claim, its series of orders formed a judgment—taken
together, these orders finally determined the rights of the par-
ties in the action.8 Only then did the appeal time begin to run
on the summary judgment order. And Robert’s appeal was
clearly timely.
6
Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005).
7
See § 25-1315(1). See, also, Cerny v. Todco Barricade Co., 273 Neb. 800,
733 N.W.2d 877 (2007) (power should be used only in infrequent harsh
case, based on likelihood of injustice or hardship to parties of delay in
entering final judgment as to part of case).
8
See Neb. Rev. Stat. § 25-1301(1) (Reissue 2008) (judgment is final
determination of rights of parties in action).
- 954 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943(b) Summary Judgment
[5,6] A party moving for summary judgment must make a
prima facie case by producing evidence to demonstrate that
the movant is entitled to judgment if the evidence were uncon-
troverted at trial.9 Once the moving party makes a prima facie
case, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion.10
(i) Bill and Rebecca
All of Bill and Rebecca’s assigned errors and corresponding
arguments are based on their contention that because they did
not sign page 2, they did not agree to the provisions on that
page. Their first assignment argues generally that they did not
agree to page 2, and their second and third assignments argue
specifically that they are not bound by the waiver of notice
provision on page 2.
The Bank argues we cannot address Bill and Rebecca’s
assigned errors, because they did not raise the issue in their
answer. The pleadings frame the issues to be considered on a
motion for summary judgment.11 And an appellate court will
not consider an issue on appeal that was not presented to or
passed upon by the trial court.12
The Bank may be technically correct regarding the effect of
Bill and Rebecca’s answer, but, for two reasons, it makes no
significant difference. First, they did allege that the Bank failed
to properly notify them of the loan. That allegation raised the
issue of whether the Bank was required to give them notice,
which in turn depends upon the enforceability of the waiver of
notice on page 2.
9
Builders Supply Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645 (2008).
10
Id.11
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
12
Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264(2014).
- 955 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943But more important, Robert argues in his first assignment
of error that there is a genuine issue of material fact regarding
whether he agreed to page 2. He explicitly raised this issue in
his amended answer below. Thus, Robert’s first assignment of
error squarely presents the issue.
(ii) Terms of Guaranty
Robert, Bill, and Rebecca argue that in order to agree to the
provisions on page 2, they had to “undersign” page 2. They
rely upon the term’s ordinary meaning but ignore the definition
of “Undersigned” on page 1. Their argument fails.
[7-9] A guaranty is a contract by which the guarantor prom-
ises to make payment if the principal debtor defaults.13 A guar-
anty is interpreted using the same general rules as are used for
other contracts.14 To determine the obligations of the guarantor,
an appellate court relies on general principles of contract and
guaranty law.15
[10] But when the meaning of a guaranty is ascertained, or
its terms are clearly defined, the liability of the guarantor is
controlled absolutely by such meaning and limited to the pre-
cise terms.16 And that is the situation here.
The district court correctly concluded that the provisions on
page 2 were part of the guaranty. Robert, Bill, and Rebecca do
not dispute that they signed page 1, which provided, in bold
type, that “[t]his guaranty includes the additional provisions
on page 2, all of which are made a part hereof.” This language
clearly and absolutely applied to make the terms on page 2 part
of the contract.
We have previously rejected similar arguments. In one case,
the front of the contract at issue had a place for a signature,
and immediately beneath the signature line, the following
13
Braunger Foods v. Sears, supra note 5.
14
Id.15
Id.16
Id.- 956 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943was printed: “‘NOTE: SEE REVERSE SIDE FOR TERMS
AND CONDITIONS OF LEASE. ALL WARRANTIES
DISCLAIMED.’”17 We concluded that the defendant was bound
by the provisions on the reverse side of the contract. In another
case, the defendant signed the front of the contract, which
provided that he “‘purchase[d], subject to the terms and condi-
tions set forth below and upon the reverse side hereof.’”18 The
defendant “ignor[ed] the import of the words ‘and upon the
reserve side hereof’” and argued that the terms on the front of
the contract controlled.19 We rejected the defendant’s approach
and stated that “[o]bviously, the provisions on the reverse side
of the contract, except as they may be unenforceable in this
state, are a part of the contract and must be so considered.”20
We reached the same conclusion in yet another case.21 There,
the plaintiff signed the front of the contract, which included “a
specific and conspicuous reference to the limitation of liability
clause on the reverse side of the document.”22 But because
of an error in transmission, the plaintiff did not receive the
reverse side of the contract that contained the limitation of
liability clause until 3 days after it signed the front. We con-
cluded that the plaintiff “was clearly placed on notice that the
clause was intended to be included in the contract” and that the
clause was therefore part of the agreement.23
Applying our prior decisions to the facts of this case, it
is clear that the statement on page 1 that “[t]his guaranty
17
Oddo v. Speedway Scaffold Co., 233 Neb. 1, 3, 443 N.W.2d 596, 599
(1989).
18
General Motors Acceptance Corp. v. Blanco, 181 Neb. 562, 564, 149
N.W.2d 516, 518 (1967) (emphasis omitted).
19
Id. at 566, 149 N.W.2d at 519.
20
Id.21
Ray Tucker & Sons v. GTE Directories Sales Corp., 253 Neb. 458, 571
N.W.2d 64 (1997).
22
Id. at 464, 571 N.W.2d at 69.
23
Id.- 957 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943includes the additional provisions on page 2, all of which
are made a part hereof” was sufficient to incorporate the
provisions on page 2 into the contract. Page 2 was part of
the guaranty, and Robert, Bill, and Rebecca are bound by
its provisions.
Robert, Bill, and Rebecca’s arguments regarding the gen-
eral meaning of the term “Undersigned” do not change the
outcome. They note that the provisions on page 2 refer to “the
Undersigned,” and they argue that because they did not “under-
sign” page 2, none of its provisions apply to them. They rely
upon general law defining “undersigned” as “[s]omeone whose
name is signed on a document, esp. at the end.”24
Their arguments fail, because the definition of
“Undersigned” on page 1 controls. Immediately below the
signature lines on page 1 appears the following definition:
“‘Undersigned’ shall refer to all persons who sign this guar-
anty, severally and jointly.” Four signature lines were printed.
The second line had the same width as the first and was placed
immediately below it. The third and fourth lines followed in
like manner. The definition was placed within the width of
the last signature line and immediately below it. To any ordi-
nary reader, this content and placement made it plain that by
signing on one of the lines on page 1, they were expressly
included within the definition of “Undersigned.” And on their
respective guaranties, that was exactly where Robert, Bill,
and Rebecca signed. Throughout pages 1 and 2, the word
“Undersigned” always appears in the same initially capital-
ized form as the definition. This also conveys to an ordinary
reader that the same meaning applies to the term throughout
the document. Clearly, the meaning of “Undersigned” on
both pages is controlled by the definition on page 1. Robert,
Bill, and Rebecca all signed the guaranty, and therefore, they
constitute “the Undersigned” despite having not signed or
initialed page 2.
24
Black’s Law Dictionary 1758 (10th ed. 2014).
- 958 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943Because page 2 was part of the guaranty, all of Bill and
Rebecca’s assignments of error lack merit. We turn to the addi-
tional issues raised in Robert’s appeal.
(iii) Defense of Fraud
In this assignment, Robert asserts that the court failed
to consider his affirmative defense that he was fraudulently
induced to sign the loan document regarding the Bank’s loan to
Reserve. And he argues that the court should have found that
the loan agreement was unenforceable because of the alleged
fraud. At oral argument, he reiterated that he was not asserting
any fraud with respect to the guaranty. The court did not spe-
cifically address this defense in its order, but it did state that
“no issues of material fact exist with reference to any of [the
Watsons’] defenses.”
Because Robert waived all defenses belonging to Reserve,
the court correctly concluded that there is no genuine issue
of material fact as to this defense. The guaranty provided, in
relevant part: “The Undersigned waives any and all defenses,
claims and discharges of [Reserve] . . . . Without limiting the
generality of the foregoing, the Undersigned will not assert,
plead or enforce against [the Bank] any defense of . . . fraud
. . . which may be available to [Reserve] . . . .” The terms of
the guaranty are clear, and Robert cannot assert a defense that
he expressly waived.25 This assignment is meritless.
(iv) Unclean Hands
Robert claims that the district court should have concluded
that the Bank has unclean hands, because it fraudulently
induced him to sign the loan agreement. This formulation also
lacks merit.
25
See, 38A C.J.S. Guaranty § 125 (2008); Gateway Companies, Inc. v.
Vitech America, Inc. 33 Fed. Appx. 578, 580 (2d Cir. 2002) (observing
that “[w]hen guarantors have specifically disclaimed all defenses to the
enforcement of their guaranty, they are not allowed thereafter to raise a
defense of fraud in the inducement”).
- 959 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943Under the doctrine of unclean hands, a person who comes
into a court of equity to obtain relief cannot do so if he or she
has acted inequitably, unfairly, or dishonestly as to the contro-
versy in issue.26 The doctrine is specifically predicated upon
equitable rights, and is enforceable against a party seeking
equitable relief.27
[11] But a suit on a contractual guaranty presents an action
at law, not in equity.28 The doctrine of unclean hands has no
application here. This assignment is meritless.
(v) Counterclaim
Robert claims that in granting the Bank’s motion for sum-
mary judgment as to his counterclaim for fraudulent induce-
ment, the district court erred in finding that he was not a real
party in interest. We disagree.
[12-14] Nebraska’s real party in interest statute provides
that “[e]very action shall be prosecuted in the name of the real
party in interest . . . . ”29 The purpose of that section is to pre-
vent the prosecution of actions by persons who have no right,
title, or interest in the cause.30 The focus of the real party in
interest inquiry is whether the 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.31
The purpose of the inquiry is to determine whether the party
has a legally protectable interest or right in the controversy
that would benefit by the relief to be granted.32
Robert is not a real party in interest to prosecute the fraudu-
lent inducement claim, because the claim belongs to Reserve.
26
Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).
27
Id.28
See Stauffer v. Benson, 288 Neb. 683, 850 N.W.2d 759 (2014).
29
Neb. Rev. Stat. § 25-301 (Reissue 2008).
30
Manon v. Orr, 289 Neb. 484, 856 N.W.2d 106 (2014).
31
Id.32
Id.- 960 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943He signed the loan agreement on behalf of Reserve, in his
capacity as manager of Reserve. Reserve, not Robert, was
obligated under the loan agreement. Robert was not a party to
the loan agreement, and he had no legally protectable interest
or right in the controversy that would benefit by the relief to
be granted.
And for several reasons, Robert cannot prosecute the claim
on behalf of Reserve. First, Reserve is not a party in this case.
Second, Reserve is a limited liability company, which is an
entity distinct from its members.33 Robert, who is not an attor-
ney, may not represent Reserve in courts of this state.34 Finally,
as we explained earlier, Robert’s personal guaranty expressly
waived any claim of fraud belonging to Reserve.
Because Robert is not the real party in interest in his
counterclaim, there is no genuine issue of material fact, and
the Bank was entitled to judgment as a matter of law as to
Robert’s counterclaim.
(vi) Declaratory Judgment
Robert filed a motion “for Declaratory Judgment on con-
tractual effect of Personal Guarantees,” together with a motion
for summary judgment as to the Bank’s complaint. He assigns
that the district court erred in overruling his motion for a
declaratory judgment and argues that the court should have
considered it to be part of his motion for summary judgment.
The district court declined to address the motion, because
Robert did not make the request for declaratory judgment in
his pleadings.
[15] The district court did not err in declining to address
Robert’s motion for declaratory judgment. In Nebraska, a party
may not simply move the court for a declaratory judgment.35
33
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816(2015).
34
See id.35
Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
- 961 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943No such summary proceeding is recognized in Nebraska.36 The
same case makes it clear that an action for declaratory judg-
ment is framed by a pleading,37 and Robert’s counterclaim did
not make any attempt to do so.
To the extent that Robert argues the matter was encompassed
in his motion for summary judgment, we find no merit to his
argument. The court considered and overruled his motion for
summary judgment. It therefore resolved Robert’s rights under
the contract, which was the issue he sought to have determined
in his “motion” for declaratory judgment.
The district court did not err in granting the Bank’s motion
for summary judgment as to its claims for breach of guaranty
and as to Robert’s counterclaim. It also did not err in overrul-
ing Robert’s motions for summary judgment and declaratory
judgment. Accordingly, we affirm the district court’s summary
judgment order.
(c) Failure to Vacate
Finally, Robert assigns that the district court erred in over-
ruling his motion to vacate the summary judgment order. He
argues that the district court should have vacated the order,
because Ҥ 25-1315(1) . . . requires a non-final order to be
written in such a way it can be modified. The . . . order was
not written to include or consider the effect of future rulings in
the matter and therefore must be vacated.”38
We digress to note that Robert’s motion to vacate addressed
only the summary judgment order. Thus, his motion did not
address the orders overruling objections to execution or gar-
nishments. Because Robert limited his motion in that way, the
district court was not asked to vacate these other orders. An
issue not presented to or passed on by the trial court is not
36
Id.
37
See id.
38
Brief for appellant in case No. S-15-872 at 39.
- 962 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943appropriate for consideration on appeal.39 Thus, in consider-
ing this assignment of error, we are limited by the scope of
Robert’s motion.
Robert relies on Murry Constr. Servs. v. Meco-Henne
Contracting40 to support his argument. In that case, the Nebraska
Court of Appeals stated: “It is our duty to dismiss appeals for
lack of jurisdiction and to direct the trial court to expunge from
its records actions or orders which are not valid.”41
Robert’s reliance on Murray Constr. Servs. is misplaced.
The rule in that case applies when an order is invalid under
§ 25-1301, which requires that a judgment be signed by the
court and file stamped and dated by the clerk of the court.
Here, the Court of Appeals did not conclude that the sum-
mary judgment order was invalid under § 25-1301. Rather,
it concluded that it lacked jurisdiction because the summary
judgment order did not adjudicate the cross-claim and, thus,
did not constitute a final judgment under § 25-1315(1). Murray
Constr. Servs. does not affect the validity of the summary judg-
ment order.
The summary judgment order was not invalid. Rather, as we
explained above, at the time of the first appeal, the summary
judgment order simply was not yet part of a judgment and,
thus, was not yet appealable. Therefore, we affirm the district
court’s order overruling Robert’s motion to vacate the sum-
mary judgment order.
2. Second A ppeal (No. S-15-512)
[16] Bill and Rebecca filed this appeal from the district
court’s orders overruling their objections to execution and
garnishments. Although they appeared with counsel before the
39
Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).
40
Murray Constr. Servs. v. Meco-Henne Contracting, 10 Neb. App. 316, 633
N.W.2d 915 (2001).
41
Id. at 318, 633 N.W.2d at 916.
- 963 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943district court, they are self-represented in this court. We have
frequently stated that a self-represented litigant will receive
the same consideration as if he or she had been represented by
an attorney, and, concurrently, that litigant is held to the same
standards as one who is represented by counsel.42
Bill and Rebecca argue that the district court erred in over-
ruling their objections, because “[a]ny order issued for enforce-
ment of a statutorily deficient non-appealable, non-final order
is invalid and void.”43 Their argument lacks some precision.
But as we understand it, they argue that because the summary
judgment order was not a “judgment” within the meaning of
§ 25-1315, the execution and garnishments were void. They
did not raise this argument below.
(a) General Law on Premature
Execution or Garnishment
[17] We have long held that a garnishment in aid of execu-
tion issued before judgment is without jurisdiction and void,
and not merely irregular.44 These cases arose under an earlier
version of what is now codified as Neb. Rev. Stat. § 25-1056(Reissue 2008), which governs garnishments after judgment.45
The garnishment proceeding must be supported by a “judg-
ment in esse,”46 that is, a judgment “[i]n actual existence” or,
literally, “in being.”47 Thus, the judgment must be in existence
before a garnishment in aid of execution. And even if there is
a judgment which is later reversed, the “garnishment becomes
42
See, e.g., Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015)
(referring to self-represented litigant as “pro se litigant”).
43
Brief for appellants in case No. S-15-512 at 2.
44
See, Whitcomb v. Atkins, 40 Neb. 549, 59 N.W. 86 (1894); Clough v. Buck,
6 Neb. 343 (1877).
45
See id.46
See Clough v. Buck, supra note 44, 6 Neb. at 347 (emphasis in original).
47
Black’s Law Dictionary 895 (10th ed. 2014).
- 964 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943wholly dissolved, for there is nothing left to support either the
one or the other.”48
[18] Although we have not found a Nebraska case directly
on point, it appears that the same rule applies to an execution
issued without a judgment. The general rule, in the absence
of a statutory provision to the contrary, is that an execution
issued without a judgment to support it is void.49 The Arizona
Supreme Court stated that “an execution issued without a
judgment to support it is void, no authority is conferred upon
the officer to whom it is directed, and even if a judgment is
subsequently obtained, it will not have a retroactive effect so
as to validate the execution.”50 And a Missouri court recited its
law that “‘[e]nforcement of a judgment by execution supposes
that the judgment is not merely interlocutory, but final.’”51
This rule seems consistent with our statutes.52 And we have
held that a proceeding in aid of a satisfied judgment was
a nullity.53
It seems clear that before enactment of § 25-1315, the
summary judgment order would have been considered a judg-
ment as between the Bank and the Watsons. Federal Land
Bank v. McElhose54 is instructive despite its reliance upon
48
Clough v. Buck, supra note 44, 6 Neb. at 347.
49
30 Am. Jur. 2d Executions § 55 (2005).
50
Jackson v. Sears, Roebuck and Co., 83 Ariz. 20, 21-22, 315 P.2d 871, 872
(1957).
51
State ex rel. Lumber Mut. Ins. Co. v. Ohmer, 131 S.W.3d 872, 874 (Mo.
App. 2004).
52
See, § 25-1056 (when judgment has been entered and creditor has filed
affidavit, garnishment summons shall issue); Neb. Rev. Stat. § 25-1501.01(Cum. Supp. 2014) (person having judgment rendered by district court
may request clerk of court to issue execution); Neb. Rev. Stat. § 25-1504(Reissue 2008) (land and tenements in county bound for satisfaction of
judgment when entered on judgment record, goods and chattels bound
from seizure in execution).
53
Yeiser v. Cathers, 73 Neb. 317, 102 N.W. 612 (1905).
54
Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986).
- 965 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943obsolete procedures for rendition and entry of judgment. A
first pronouncement, followed by a trial docket entry on the
same day, “finally determined the rights of the parties and
constituted the rendition of a [judgment].”55 We held that this
judgment was final and appealable despite the later entry of
another judgment that partially contradicted the first judg-
ment. We observed that the “confusion presented by this
case can be avoided if trial courts will, as they should, limit
themselves to entering but one final determination of the
rights of the parties in a case.”56 And to deal with another
aspect of the multiple judgments problem, we later stated that
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 determina-
tion on the merits as to the defendants not in default.57 And
in that case, we overruled two older cases permitting default
judgments to stand against one jointly liable defendant while
another defendant was adjudged not liable after a trial. The
Legislature adopted § 25-1315 at the next session after that
case was decided.
(b) Appellate Jurisdiction
[19] But before we can consider whether the adoption
of § 25-1315 leads to the conclusion that Bill and Rebecca
advance, we must consider whether we have jurisdiction over
the second appeal. Before reaching the legal issues presented
for review, it is the power and duty of an appellate court to
determine whether it has jurisdiction over the matter before it,
irrespective of whether the issue is raised by the parties.58 And
the question of our jurisdiction is not a simple matter.
55
Id. at 451, 384 N.W.2d at 297.
56
Id. at 452, 384 N.W.2d at 298.
57
State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113, 602
N.W.2d 432 (1999).
58
In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
- 966 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943[20] For an appellate court to acquire jurisdiction over an
appeal, there must be a final order or final judgment entered
by the court from which the appeal is taken.59 Our jurisdiction
depends upon the proper classification of the orders overruling
objections to execution and garnishment.
We are hampered somewhat by the state of the record. It
does not include any praecipes for execution or garnishment,
any writs of execution or garnishment, or any returns to any
such writs. Thus, all we can discern from the record is that
such writs were issued prior to the entry of judgment. At the
hearing on the objections, the parties’ arguments appear to
be premised upon a belief that the summary judgment order
was susceptible of execution or garnishment. But that hear-
ing took place before the Court of Appeals dismissed the
first appeal.
It is clear that the second appeal was not taken from a final
judgment. We have already determined that the district court’s
series of orders did not form a judgment until it dismissed
Shona’s cross-claim in August 2015, more than 2 months after
Bill and Rebecca filed their notice of appeal in the second
appeal. And their notice of appeal did not relate forward to the
August entry of judgment.60 We turn to the other possibility—a
final order.
[21] Our jurisdiction depends upon whether the June 8, 2015,
orders were “final orders.” Under Neb. Rev. Stat. § 25-1902(Reissue 2008), the three types of final orders which may be
reviewed on appeal are (1) an order which affects a substantial
right in an action and which in effect determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
59
State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015).
60
See In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33,
680 N.W.2d 142 (2004).
- 967 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943after a judgment is rendered.61 For convenience, we refer to
these as type “1,” “2,” or “3” orders. Each type requires that
the order affect a substantial right. The difference lies in the
type of proceeding or its effect upon the action.
We have not always used this terminology with precision.
For example, in one case, we said that an order overruling an
objection to a debtor’s examination was “made in a special
proceeding.”62 But we also said that the order was “made upon
a summary application in an action after judgment therein.”63
Thus, we intermingled terminology from types 2 and 3. We
perpetuated this confusion in a later case.64
One thing is clear—the orders overruling objections to exe-
cution and garnishments were not type 1 final orders. To be a
type 1 final order, it must dispose of the whole merits of the
case and leave nothing for the court’s further consideration.65
These orders did neither. They occurred prior to judgment. And
they did not prevent the judgment, which followed upon the
dismissal of the cross-claim.
We conclude that we must classify the proceedings before
the district court as summary applications in an action after
judgment is rendered. Thus, it would necessarily follow that
the district court’s orders would be type 3 final orders. The
anomaly, of course, is that no “judgment” had actually been
rendered. Nonetheless, the Bank was pursuing an execution
and a garnishment in aid of execution, both of which necessar-
ily follow a judgment.
61
State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015).
62
Clarke v. Nebraska Nat. Bank, 49 Neb. 800, 802, 69 N.W. 104, 104
(1896).
63
Id.64
Bourlier v. Keithley, 141 Neb. 862, 865, 5 N.W.2d 121, 123 (1942) (“[a]
proceeding in aid of execution is a special proceeding made upon a
summary application in an action after judgment”).
65
See Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
- 968 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943[22-24] And the orders affected substantial rights. A sub-
stantial right under § 25-1902 is an essential legal right.66
A substantial right is affected if an order affects the sub-
ject matter of the litigation, such as diminishing a claim
or defense that was available to an appellant before the
order from which an appeal is taken.67 The orders eliminated
the Watsons’ objections to the execution and garnishments.
Moreover, substantial rights under § 25-1902 include those
legal rights that a party is entitled to enforce or defend.68
The execution and garnishments authorized the seizure of
property or money that would otherwise have remained in the
Watsons’ ownership and control. Thus, the orders affected a
substantial right.69
Because the second appeal was timely filed after the entry
of the orders overruling objections to execution and garnish-
ments, we have jurisdiction of the second appeal.
(c) Validity of Orders on Execution
and Garnishments
Having concluded that we have jurisdiction of the second
appeal, we turn to the dispositive issue. The execution and gar-
nishments in aid of execution were issued prior to a final judg-
ment under §§ 25-1301 and 25-1315. We conclude that these
execution and garnishment proceedings were void.
The key is the second sentence of § 25-1315(1), which
states:
In the absence of such determination [that there is no
just reason for delay] and direction [for the entry of
66
Id.
67
Id.
68
Id.
69
See In re Estate of McKillip, 284 Neb. 367, 375, 820 N.W.2d 868, 876
(2012) (concluding that “the rights of the devisees to retain the real
estate in kind is a substantial right that is affected by the order to sell the
property”).
- 969 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943judgment], any order or other form of decision, however
designated, which adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject
to revision at any time before the entry of judgment adju-
dicating all the claims and the rights and liabilities of all
the parties.
(Emphasis supplied.) Most of our cases involving § 25-1315
have addressed attempts to invoke the authority granted by the
first sentence.70 Here, we confront a form of decision charac-
terized as a judgment but which failed to dispose of a defend­
ant’s cross-claim.
The pending cross-claim prevented the summary judgment
order from serving as a final judgment. We have previously
written in depth regarding the purpose of the statute with
regard to the “‘salutary goal of certainty with respect to juris-
diction of appeals.’”71
[25] It seems equally fundamental that an interlocutory
order granting summary judgment on fewer than all of the
claims in an action cannot serve as the judgment required for
an execution or garnishment in aid of execution. The plain
language of § 25-1315(1) makes it clear that the form of the
order cannot control. Here, the summary judgment order stated
that “[j]udgment is entered in favor of the [Bank and] against
the [Watsons] jointly and severally . . . .” The statute requires
explicit adjudication of all of the claims and of all of the rights
and liabilities of all of the parties. The summary judgment
order did not do so.
70
See, e.g., Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d
391 (2015); Cerny v. Todco Barricade Co., supra note 7; Keef v. State, 262
Neb. 622, 634 N.W.2d 751 (2001).
71
Malolepszy v. State, supra note 6, 270 Neb. at 106, 699 N.W.2d at 391
(quoting Federal Sav. & Loan Ins. Corp. v. Huff, 851 F.2d 316 (10th Cir.
1988)).
- 970 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943The same purpose of providing certainty applies to a judg-
ment which will be sufficient to support the issuance of final
process. A writ of execution is recognized as a final process of
a court for the enforcement of a judgment.72 If an interlocutory
order remains subject to change, it cannot support the court’s
final process. The officers required by law to execute a court’s
process need certainty that the process is supported by a final
judgment. And this clarity is equally important to the parties
and the general public.
[26] We have not found any federal cases suggesting oth-
erwise. Since § 25-1315(1) is substantially similar to Fed. R.
Civ. P. 54(b) (Rule 54(b)), we will look to federal cases con-
struing Rule 54(b) for guidance.73 In a case from the District
of Columbia Circuit, a party was “confronted by a judgment
non-final in terms of Rule 54(b) but ostensibly the predicate
for an execution.”74 The court observed that “[a]n execution
ordinarily may issue only upon a final judgment,”75 and it
said: “We think the role Rule 54(b) plays with reference to the
finality of a judgment for purposes of appeal has implications
as regards its finality for purposes of execution as well.”76 It
noted that the lower court had not made a Rule 54(b) deter-
mination, and it stated that “the more likely conclusion upon
the merits of the appeal is that unless and until [the Rule 54(b)
determination] is done [the appellee] has no judgment upon
which an execution may issue prior to adjudication of the case
in its entirety.”77 It therefore denied the appellee’s motion for
72
See State, ex rel. Warren, v. Raabe, 140 Neb. 16, 299 N.W. 338 (1941).
73
Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916(2003).
74
Redding & Company v. Russwine Construction Corporation, 417 F.2d 721,
724 (D.C. Cir. 1969).
75
Id. at 727.
76
Id.77
Id.- 971 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943a supersedeas bond as a condition of the stay of execution
issued during the pendency of the appeal.78 In another case,
a Second Circuit court noted that “the validity of [an] execu-
tion order . . . depends upon the finality of the earlier default
judgments which that execution order is intended to satisfy.”79
Because the order was susceptible of two interpretations, one
consistent with finality and the other not, the court remanded
the matter for entry of a new judgment.80
Although we have read the district court’s orders together
in order to determine the existence of a final judgment, this
should not be necessary. Where a series of orders, taken
together, would constitute a final judgment, we encourage the
trial courts to make the judgment explicit in the last order of
the series.
[27,28] Although Bill and Rebecca did not raise this precise
argument before the district court, we conclude that we can
consider it. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.81 But
it is a longstanding rule in Nebraska that a void order may
be attacked at any time in any proceeding.82 We have already
recited the case law making it clear that executions and gar-
nishments in aid of execution issued prior to judgment are
void. The district court’s orders overruling objections to the
void orders are likewise void. The summary judgment order
was then only an interlocutory order. At that time, it did not
78
See, also, Gerardi v. Pelullo, 16 F.3d 1363 n.13 (3d Cir. 1994) (noting that
“a judgment that is not otherwise final, i.e., usually meaning final as to all
issues and parties, is not subject to execution until the certification under
Rule 54(b) is entered”).
79
International Controls Corp. v. Vesco, 535 F.2d 742, 745 (2d Cir. 1976).
80
International Controls Corp. v. Vesco, supra note 79.
81
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
82
See, Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15 (1996);
Lammers Land & Cattle Co. v. Hans, 213 Neb. 243, 328 N.W.2d 759(1983).
- 972 -
Nebraska A dvance Sheets
293 Nebraska R eports
CATTLE NAT. BANK & TRUST CO. v. WATSON
Cite as 293 Neb. 943support the issuance of final process, and Bill and Rebecca
could raise this issue for the first time on appeal.
Based on the record before us in the second appeal, we
determine that the writs of execution and garnishment issued
before the entry of a final judgment, and the proceedings had
for their enforcement, were void. We therefore vacate the final
orders overruling the Watsons’ objections to execution and
garnishments.
But that is the full extent of the relief we can provide on this
record. In our decision regarding the Watsons’ third appeal, we
have affirmed a judgment sufficient for the issuance of final
process. As we have already explained, the later judgment does
not have a retroactive effect to validate the void writs of execu-
tion and garnishment. We express no opinion regarding any
action or process available to the Watsons regarding the void
execution and garnishments, or regarding the effect, if any, of
the Bank’s later judgment on such action or process.
VI. CONCLUSION
For the reasons discussed above, in case No. S-15-872, we
affirm the district court’s order granting the Bank’s motions
for summary judgment as to its claims for breach of guaranty
and as to Robert’s counterclaim. We also affirm the district
court’s order overruling Robert’s motion to vacate. In case No.
S-15-512, we vacate the district court’s orders overruling the
Watsons’ objections to execution and garnishments.
Final orders in No. S-15-512 vacated.
Judgment in No. S-15-872 affirmed.
Miller-Lerman and Stacy, JJ., not participating.