Western Ethanol Co. v. Midwest Renewable Energy

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/28/2020 09:06 AM CST
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
Western Ethanol Company, LLC,
appellee, v. Midwest Renewable
Energy, LLC, appellant.
___ N.W.2d ___
Filed February 14, 2020. No. S-18-1192.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, determination of a juris-
dictional issue is a matter of law which requires an appellate court to
reach a conclusion independent from the trial court’s; however, when
a determination rests on factual findings, a trial court’s decision on the
issue will be upheld unless the factual findings concerning jurisdiction
are clearly incorrect.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
4. Final Orders: Appeal and Error. The three types of final orders that
an appellate court may review are (1) an order that affects a substantial
right and that determines the action and prevents a judgment, (2) an
order that affects a substantial right made during a special proceeding,
and (3) an order that affects a substantial right made on summary appli-
cation in an action after a judgment is rendered.
5. ____: ____. 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 from which an appeal is taken.
6. Contracts: Assignments. An assignment is a contract between the
assignor and the assignee, and is interpreted or construed according to
the rules of contract construction.
7. Contracts: Parties. Only a party (actual or alleged) to a contract can
challenge its validity.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
8. ____: ____. Parties can recover as third-party beneficiaries of a contract
only if it appears that the rights and interest of the third parties were
contemplated and that provision was being made for them.
9. Assignments: Debtors and Creditors. If the assignment is effective to
pass legal title, the debtor cannot interpose defects or objections which
merely render the assignment voidable at the election of the assignor
or those standing in his or her shoes. However, a debtor may assert as
a defense any matter which renders the assignment absolutely invalid,
ineffective, or void.
10. Assignments: Actions. An assignee of a chose in action assigned for
the purpose of collection is the real party in interest and authorized to
maintain an action thereon.
11. Assignments: Actions: Parties: Standing: Jurisdiction: Proof. An
assignee can establish standing to bring an action in its own name, and
thus show the court had subject matter jurisdiction, if it proves by a pre-
ponderance of the evidence the existence of a written assignment under
Neb. Rev. Stat. § 25-304 (Reissue 2016).
12. Evidence: Records: Pleadings: Appeal and Error. An appellate record
typically contains the bill of exceptions, used to present factual evidence
to an appellate court, and the transcript, used to present pleadings and
orders of the case to the appellate court.
13. Evidence: Records: Appeal and Error. A bill of exceptions is the only
vehicle for bringing evidence before an appellate court; evidence which
is not made a part of the bill of exceptions may not be considered.
14. Actions: Judicial Notice: Appeal and Error. In interwoven and inter-
dependent cases, an appellate court may examine its own records and
take judicial notice of the proceedings and judgment in a former action
involving one of the parties.
15. Actions: Judicial Notice: Records: Appeal and Error. An appellate
court may take judicial notice of a document, including briefs filed in
an appeal, in a separate but related action concerning the same subject
matter in the same court.
16. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion is a formal act done in the course of judicial proceedings which is
a substitute for evidence, thereby waiving or dispensing with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by the opponent is true.
17. Jurisdiction. While parties cannot confer subject matter jurisdiction
upon a judicial tribunal by either acquiescence or consent, nor may
subject matter jurisdiction be created by waiver, estoppel, consent, or
conduct of the parties, such does not prevent a party from conclusively
admitting the truth of an underlying fact required to establish subject
matter jurisdiction by judicial admission.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
18. Estoppel. The doctrine of judicial estoppel protects the integrity of the
judicial process by preventing a party from taking a position inconsistent
with one successfully and unequivocally asserted by the same party in a
prior proceeding.
19. Estoppel: Intent. Fundamentally, the intent behind the doctrine of judi-
cial estoppel is to prevent parties from gaining an advantage by taking
one position in a proceeding and then switching to a different position
when convenient in a later proceeding.
20. Estoppel. Whether judicial estoppel is applicable turns on whether the
court has accepted inconsistent positions from the plaintiff.
21. ____. Judicial acceptance does not require that a party prevail on the
merits, but only that the first court adopted the position urged by the
party, either as a preliminary matter or as part of a final disposition.
22. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
Appeal from the District Court for Lincoln County: Richard
A. Birch, Judge. Affirmed.
Dean J. Jungers for appellant.
William J. Troshynski, of Brouillette, Dugan & Troshynski,
P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
The judgment debtor, Midwest Renewable Energy, LLC
(Midwest Renewable), appeals from the denial of its motion to
quash execution of a judgment. Midwest Renewable argued to
the district court that the original judgment creditor, Western
Ethanol Company, LLC (Western Ethanol), had not assigned
the judgment to Douglas B. Vind, the managing member
of Western Ethanol who requested execution after Western
Ethanol dissolved. The district court disagreed and found that
the judgment had been assigned to Vind. Finding no merit in
Midwest Renewable’s appeal, we affirm the decision of the
district court.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
I. BACKGROUND
A judgment against Midwest Renewable was transcribed
in Nebraska in 2010. This is the second appeal brought by
Midwest Renewable disputing the ownership of that judgment.
In its first appeal,1 Midwest Renewable argued that Western
Ethanol had no interest in the judgment because the judgment
had been assigned to Vind. Midwest Renewable argues in the
present appeal that there was no valid assignment to Vind. The
following background describes the two different cases, which
involve the same judgment, and the circumstances which led
Midwest Renewable to assert contradictory positions when it
filed appeals with this court.
Western Ethanol was a limited liability company formed
under Nevada law and registered in California. In September
2010, Western Ethanol obtained a judgment against Midwest
Renewable in California for attorney fees in the amount of
$30,066.59, plus interest. In November 2010, pursuant to the
Nebraska Uniform Enforcement of Foreign Judgments Act,
Neb. Rev. Stat. §§ 25-1587.01 to 25-1587.09 (Reissue 2016),
Western Ethanol filed an action in Nebraska and transcribed
the California judgment. Western Ethanol then filed a writ of
execution on the judgment and attempted to execute upon the
judgment multiple times to no avail. In 2013, Western Ethanol
dissolved and distributed its assets to its members.
In September 2014, Midwest Renewable filed a quiet title
action against Western Ethanol, and other entities, which
claimed an interest in Midwest Renewable’s ethanol manu-
facturing facility located in Lincoln County, Nebraska. When
Midwest Renewable moved for partial summary judgment
against Western Ethanol, an affidavit executed by Vind was
entered into evidence which alleged that Western Ethanol
had transferred the California judgment to him. There was no
assignment of judgment in the record, and Vind had not been
made a party to the litigation. The district court overruled the
1
See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73,
894 N.W.2d 221 (2017).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
motion for partial summary judgment. Midwest Renewable
settled with the other parties, and the matter proceeded to
trial against Western Ethanol as the only remaining defendant.
Following trial, the court found that Western Ethanol had trans-
ferred its interest to Vind and that the judgment lien was valid
and subsisting. Thus, the court dismissed the quiet title action
against Western Ethanol.
Midwest Renewable appealed to this court and argued that
the district court erred by failing to quiet Western Ethanol’s
claim. Midwest Renewable argued that “Western Ethanol has
no interest in the judgment because it transferred all of its
assets, including the judgment, to Vind and its other members
on or before December 31, 2013.”2
In our opinion disposing of that appeal, issued in March
2017, we concluded that the judgment against Midwest
Renewable was assignable and that “if Midwest Renewable
is correct in arguing that Western Ethanol’s judgment was
assigned, then . . . Vind would be the only party capable of
enforcing or defending the judgment and judgment lien against
Midwest Renewable.”3 We determined that Vind was an indis-
pensable party; that the court erred in failing to make Vind a
party to the action before rendering a decision; and that with-
out Vind’s presence, the court lacked subject matter jurisdiction
to make a determination as to the owner of the judgment and
the judgment lien. We vacated the district court’s decision with
direction to order Vind be named a party to the action.
Following remand in the quiet title action, Midwest
Renewable unsuccessfully attempted to personally serve Vind
with a summons. The court then permitted service by publi-
cation, which Midwest Renewable completed. Vind filed an
answer, and Midwest Renewable served Vind with discovery
requests. We have no further information in our record regard-
ing the status of the quiet title action.
2
Id. at 86, 894 N.W.2d at 234.
3
Id. at 88, 894 N.W.2d at 235.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
In June 2017, in the present registration and enforce-
ment of a foreign judgment case, Western Ethanol filed an
“Acknowledgment of Assignment of Foreign Judgment.” The
document was signed by Vind as managing member and trustee
on behalf of Western Ethanol. It stated, “PLEASE TAKE
NOTICE that [Western Ethanol] does hereby acknowledge
assignment of all interest, right and title to the foreign judg-
ment entered against [Midwest Renewable].” Western Ethanol
then filed an amended acknowledgment of assignment which
clarified that the judgment had been assigned to Vind.
Without filing a formal pleading or motion to enter the case,
Vind, as assignee, filed a praecipe for writ of execution. The
praecipe stated that based on the amount of the judgment plus
interest, Midwest Renewable owed Vind $51,156.64. Vind
requested execution on Midwest Renewable’s real estate. The
clerk of court issued a writ of execution in conformance with
the praecipe.
Midwest Renewable filed a motion to quash the execution.
The motion argued that (1) no assignment of the judgment to
Vind had been recorded with the court, (2) any assignment
of the judgment was improper because Western Ethanol had
dissolved, (3) Vind lacked authority to enforce the judgment,
and (4) the validity of the judgment was under litigation in the
quiet title action.
At the hearing on the motion to quash, Vind’s counsel
appeared, without objection from Midwest Renewable, and
argued against the motion. Vind’s counsel argued that the
acknowledgments of assignment provide notice of the assign-
ment to Midwest Renewable and the public.
After reviewing evidence and the parties’ briefs, the court
entered an order finding that the amended acknowledgment of
assignment was sufficient to establish that Vind was the suc-
cessor in interest to the foreign judgment. The court further
found that the judgment was not dormant, and it overruled the
motion to quash. Midwest Renewable filed a motion to alter
or amend which asserted that Vind lacked standing and is not
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
the real party in interest, requesting a hearing pursuant to our
holding in Jacobs Engr. Group v. ConAgra Foods.4 Following
a hearing, the court found that Vind is the real party in interest
and overruled the motion.
Midwest Renewable appealed, and Vind appeared as appel-
lee. We moved the appeal to our docket pursuant to our statu-
tory authority to regulate the caseloads of the appellate courts
of this State.5
II. ASSIGNMENTS OF ERROR
Midwest Renewable assigns, restated, that the district court
erred in (1) finding that Vind owns the judgment to be exe-
cuted, (2) finding that Vind had properly been made a party to
the case, and (3) overruling the motion to quash.
III. STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, determination of a jurisdictional issue is a matter of
law which requires an appellate court to reach a conclusion
independent from the trial court’s; however, when a determi-
nation rests on factual findings, a trial court’s decision on the
issue will be upheld unless the factual findings concerning
jurisdiction are clearly incorrect.6 Other standards of review are
articulated in our analysis of the issues below.
IV. ANALYSIS
1. Appellate Jurisdiction
[2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it.7 The threshold
4
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
5
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
6
Jacobs Engr. Group, supra note 4.
7
Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920
N.W.2d 268 (2018).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
issue is whether we have appellate jurisdiction over Midwest
Renewable’s appeal.
[3] In Nebraska, for an appellate court to acquire jurisdic-
tion of an appeal, the party must be appealing from a final
order or a judgment.8 Here, Western Ethanol transcribed the
California judgment and allegedly assigned the judgment to
Vind, who filed a praecipe for writ of execution. Midwest
Renewable filed a motion to quash the execution which was
denied by the district court. Midwest Renewable then timely
filed a motion to alter or amend, which was denied by the
district court. Midwest Renewable then timely appealed from
the district court’s order denying the motion to alter or amend.
The existence of appellate jurisdiction in this case therefore
depends on whether Midwest Renewable has appealed from a
final order.
A number of courts have held that an order refusing to quash
an execution is an appealable order.9 Nebraska appellate courts
have previously exercised jurisdiction over appeals from orders
overruling a motion to quash execution.10
[4,5] The three types of final orders that an appellate court
may review are (1) an order that affects a substantial right
and that determines the action and prevents a judgment, (2)
an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right
made on summary application in an action after a judgment is
rendered.11 A substantial right under § 25-1902 is an essential
legal right.12 A substantial right is affected if an order affects
8
Id.
9
In re Marriage of DeLotel, 73 Cal. App. 3d 21, 140 Cal. Rptr. 553 (1977);
C. E. McCune Co. v. Warndorf, 55 Ohio App. 279, 9 N.E.2d 709 (1936);
Farmers Bank of North Henderson v. Stenfeldt, 258 Ill. App. 428 (1930);
Opening of Parkway, 267 Pa. 219, 110 A. 144 (1920).
10
Chitwood Packing Co. v. Warner, 138 Neb. 800, 295 N.W. 882 (1941);
Lincoln Lumber Co. v. Elston, 1 Neb. Ct. App. 741, 511 N.W.2d 162 (1993).
11
See Neb. Rev. Stat. § 25-1902 (Reissue 2016).
12
Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
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305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
the subject 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.13 Substantial rights under
§ 25-1902 include those legal rights that a party is entitled to
enforce or defend.14
In Cattle Nat. Bank & Trust Co. v. Watson,15 we concluded
that an order overruling objections to execution is classified
within the third type of final order, a summary application
in an action after judgment is rendered. In that case, the trial
court issued orders overruling the debtor’s objections to execu-
tion and garnishments. We found that the orders affected the
debtor’s substantial rights, because they eliminated the debtor’s
objections to the execution and garnishments, and that the exe-
cution and garnishments authorized the seizure of property or
money which would otherwise have remained in the debtor’s
ownership and control. Thus, we concluded that the debtor had
appealed from final orders and that there was jurisdiction over
the appeal.
However, in another case in the context of garnishment
proceedings under Neb. Rev. Stat. § 25-1011 (Reissue 2016),
we determined that an order overruling a debtor’s objections
to garnishments was not a final order, because the order did
not include a determination that the creditor was entitled to
the funds.16 The order appealed from did not authorize execu-
tion of a garnishment, did not affect a substantial right, and
was not a final, appealable order.17 Therefore, the existence of
appellate jurisdiction turns on whether the order appealed from
here authorized seizure of Midwest Renewable’s property and
affected a substantial right of Midwest Renewable.
13
Id.
14
Id.
15
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906
(2016).
16
Shawn E. on behalf of Grace E. v. Diane S., 300 Neb. 289, 912 N.W.2d
920 (2018).
17
Id.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
In overruling Midwest Renewable’s motion to quash, the
district court concluded that the foreign judgment had been
validly registered in Nebraska and is a lien upon Midwest
Renewable’s real estate. In addition, the court found that
the judgment is not dormant and that Vind holds the interest
in the judgment. The court reaffirmed its ruling in denying
Midwest Renewable’s motion to alter or amend. Therefore,
consistent with our decision in Cattle Nat. Bank & Trust Co.,
the court’s orders declining to quash execution affected a sub-
stantial right because the execution authorized the seizure of
Midwest Renewable’s property.18 As a result, we have appellate
jurisdiction in this matter.
2. Merits
Midwest Renewable argues that the judgment has not been
assigned to Vind and that the district court lacked jurisdic-
tion over Vind’s attempt to execute on the judgment. Midwest
Renewable asserts that “[t]here is a substantial question as to
the ownership of the judgment and the judgment lien herein”19
and that there is “a conflict in the evidence presented [as to]
when and if there was a valid assignment made.”20 Midwest
Renewable contends that without an assignment, Vind is not the
real party in interest. In response, Vind contends that pursuant
to Marcuzzo v. Bank of the West,21 Midwest Renewable lacks
standing to challenge the assignment from Western Ethanol
to Vind.
We conclude that Midwest Renewable has standing to
challenge the assignment, that Vind is the real party in inter-
est, and that Midwest Renewable’s assignments of error lack
merit.
18
See Cattle Nat. Bank & Trust Co., supra note 15.
19
Brief for appellant at 12.
20
Id. at 14.
21
Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
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Nebraska Supreme Court Advance Sheets
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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
(a) Midwest Renewable Has Standing
Vind argues that Midwest Renewable lacks standing to chal-
lenge the validity of the assignment of the foreign judgment,
because Midwest Renewable is not a party to the assignment
and cannot articulate an injury caused by the assignment.
Before a party is entitled to invoke a court’s jurisdiction, that
party must have standing to sue.22 To have standing to sue, a
party must have some legal or equitable right, title, or interest
in the subject matter of the controversy.23 Standing requires
that a party show his or her claim is premised on his or her
own legal rights as opposed to rights of a third party.24
[6-8] An assignment is a contract between the assignor
and the assignee, and is interpreted or construed according to
the rules of contract construction.25 Nebraska law states that
only a party (actual or alleged) to a contract can challenge its
validity.26 Parties can recover as third-party beneficiaries of a
contract only if it appears that the rights and interest of the
third parties were contemplated and that provision was being
made for them.27
In Marcuzzo, the plaintiffs defaulted on their mortgage loan
and their home was foreclosed and sold.28 The plaintiffs filed
suit alleging that the assignment of their mortgage was defec-
tive because there were “discrepancies and irregularities in the
paperwork of the assignment.”29 In analyzing the plaintiffs’
22
Id.
23
See id.
24
See id.
25
Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 828 A.2d 64
(2003); 6 Am. Jur. 2d Assignments § 1 (2018).
26
Marcuzzo, supra note 21, citing Spanish Oaks v. Hy-Vee, 265 Neb. 133,
655 N.W.2d 390 (2003).
27
Id., citing Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 798 N.W.2d
845 (2011).
28
Marcuzzo, supra note 21.
29
Id. at 818, 862 N.W.2d at 289.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
claims on appeal, we applied the principle followed by a major-
ity of courts that borrowers do not have standing to challenge
an assignment of their mortgage, because they are not a party
to the assignment contract.30 We held that a borrower who is not
a party to a mortgage assignment or a third-party beneficiary
of the assignment lacks standing to challenge the assignment.
We explained that if the assignment were in fact irregular, that
would be an issue between the assignor and assignee.31
However, we recognized an exception to this rule. We indi-
cated that a borrower could have standing to challenge the
assignment of his or her mortgage where the borrower can
show actual prejudice by the improper assignment, an injury
that is directly traceable to the assignment, such as being at
risk for paying the same debt twice, or by otherwise showing
that the assignment is invalid, ineffective, or void.32
[9] We therefore limited the standing rule in Marcuzzo
based on the type of challenge raised to the assignment.33 The
plaintiffs had alleged the assignment was ineffective because
of deficiencies in the assignment paperwork. We explained
that the plaintiffs had failed to allege an injury directly trace-
able to the assignment, because even if the plaintiffs’ argument
were correct that would make the assignment merely voidable
at the election of a party to the assignment, but the assignment
would otherwise be effective to pass legal title. If the assign-
ment is effective to pass legal title, the debtor cannot interpose
defects or objections which merely render the assignment
voidable at the election of the assignor or those standing in his
or her shoes.34 However, a debtor may assert as a defense any
30
See id. (citing cases).
31
Id., citing Livonia Properties Holdings, LLC v. 12840-12976 Farmington
Road Holdings, LLC, 399 Fed. Appx. 97 (6th Cir. 2010).
32
Id., citing Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282 (1st
Cir. 2013).
33
See Marcuzzo, supra note 21.
34
6A C.J.S. Assignments § 133 (2016).
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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
matter which renders the assignment absolutely invalid, inef-
fective, or void.35
In the present matter, the assignment does not appear in
the record. Midwest Renewable has made various assertions
regarding the assignment and generally argues that no valid
assignment was made. As we will later illustrate, Midwest
Renewable has taken conflicting positions with regard to the
assignment and its effect. However, for purposes of stand-
ing, Midwest Renewable’s challenge to the assignment here is
distinct from the challenge at issue in Marcuzzo.36 If Midwest
Renewable were correct that there was no valid assignment,
then legal title would not have passed to Vind and Midwest
Renewable would be directly injured by becoming obligated to
pay a debt to a party without a legal right to collect the foreign
judgment. Midwest Renewable has standing to argue the lack
of a valid assignment to Vind.
(b) Vind Owns Judgment
and Judgment Lien
We must determine whether Vind is the real party in inter-
est for purposes of enforcing the judgment against Midwest
Renewable. Whether a party who commences an action has
standing and is therefore the real party in interest presents
a jurisdictional issue.37 The stage of the litigation in which
a party claims that its opponent lacks standing affects how
a court should dispose of the claim.38 If a motion challeng-
ing standing is made at the pleadings stage, it is considered
a “facial challenge” and a court will review the pleadings to
determine whether there are sufficient allegations to establish
the plaintiff’s standing.39 But if the challenge to standing, and
35
Id.
36
See Marcuzzo, supra note 21.
37
Jacobs Engr. Group, supra note 4.
38
Id.
39
See id.
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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
thus the court’s subject matter jurisdiction, is raised after the
pleadings stage and the court holds an evidentiary hearing
and reviews evidence outside the pleadings, it is considered a
“factual challenge” and the party opposing the challenge must
offer evidence to support its burden of establishing subject
matter jurisdiction.40
Where the trial court’s decision on a question of subject
matter jurisdiction is based on a factual challenge, the court’s
factual findings are reviewed under the clearly erroneous stan-
dard.41 But aside from any factual findings, the trial court’s rul-
ing on subject matter jurisdiction is reviewed de novo, because
it presents a question of law.42
Here, the district court received evidence on the issue of
Vind’s standing to execute the California judgment. We review
the court’s factual findings on this jurisdictional issue for
clear error, and we review de novo the ultimate question of
Vind’s standing.
[10] Vind claims to be the assignee of a judgment against
Midwest Renewable. An assignment is a transfer vesting in
the assignee all of the assignor’s rights in the property which
is the subject of the assignment.43 The assignee of a chose in
action acquires no greater rights than those of the assignor,
and takes it subject to all the defenses existent at the time.44
A judgment, as a chose in action, is assignable.45 A judgment
may be assigned to someone who was not a party to the ini-
tial action, and the assignee receives the right to enforce such
a judgment.46 A judgment creditor may assign his rights in a
40
See id.
41
See id.
42
See id.
43
Midwest Renewable Energy, supra note 1.
44
Id.
45
Id. See 46 Am. Jur. 2d Judgments § 410 (2017).
46
Gilroy v. Lowe, 626 P.2d 469 (Utah 1981).
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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY
Cite as 305 Neb. 1
judgment for attorney fees.47 An assignee of a chose in action
assigned for the purpose of collection is the real party in inter-
est and authorized to maintain an action thereon.48
[11] Nebraska’s real party in interest statute provides that
“[e]very action shall be prosecuted in the name of the real party
in interest . . . .”49 Neb. Rev. Stat. § 25-304 (Reissue 2016)
states in relevant part: “Assignees of choses in action assigned
for the purpose of collection may sue on any claim assigned in
writing.” Neb. Rev. Stat. § 25-302 (Reissue 2016) states: “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.” Recently, in Hawley v. Skradski,50 we held that an
assignee can establish standing to bring an action in its own
name, and thus show the court had subject matter jurisdiction,
if it proves by a preponderance of the evidence the existence
of a written assignment under § 25-304. Under this rule, Vind
can establish that he is the real party in interest and has stand-
ing to execute the judgment if he can prove by a preponderance
of the evidence the existence of a written assignment of the
California judgment.
Here, the bill of exceptions shows that the only exhibits
received into evidence are a copy of the California judgment
and copies of unanswered discovery requests and returns of
service from the quiet title action. The court took judicial
notice of its case file and the fact that no written assignment
appeared in the record. The court found that the amended
acknowledgment of assignment of the foreign judgment was
sufficient proof of Vind’s interest. However, the acknowledg-
ment and amended acknowledgment of assignment appear in
the transcript and not in the bill of exceptions.
47
See Boarman v. Boarman, 210 W. Va. 155, 556 S.E.2d 800 (2001).
48
See Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).
49
Neb. Rev. Stat. § 25-301 (Reissue 2016).
50
Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).
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[12,13] An appellate record typically contains the bill of
exceptions, used to present factual evidence to an appellate
court, and the transcript, used to present pleadings and orders
of the case to the appellate court.51 A bill of exceptions is the
only vehicle for bringing evidence before an appellate court;
evidence which is not made a part of the bill of exceptions may
not be considered.52
The only evidence recited in the court’s decision is the
amended acknowledgment of assignment, which states that all
interest, right, and title to the California judgment has been
assigned to Vind. Because the acknowledgments of assignment
do not appear in the bill of exceptions, we cannot consider
them as evidence. None of the evidence contained in the bill
of exceptions shows the existence of a written assignment.
However, the fact that the bill of exceptions lacks evidence
to support the court’s decision is not dispositive in this case.
Under the circumstances presented here, we must take judicial
notice of facts admitted by Midwest Renewable in the prior
appeal which obviate the need for evidence of a written assign-
ment to Vind.
[14,15] Neb. Rev. Stat. § 27-201(2)(b) (Reissue 2016) pro-
vides that judicial notice may be taken of any fact not subject
to reasonable dispute, when such fact is capable of accurate and
ready determination by resort to sources whose accuracy can-
not reasonably be questioned. The Midwest Renewable Energy
opinion53 is a source of which the accuracy cannot reasonably
be questioned.54 In interwoven and interdependent cases, we
may examine our own records and take judicial notice of the
proceedings and judgment in a former action involving one of
51
In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
52
Id.
53
See Midwest Renewable Energy, supra note 1.
54
See, e.g., Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 269 Neb.
401, 693 N.W.2d 539 (2005).
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the parties.55 We have further held that we may take judicial
notice of a document, including briefs filed in an appeal, in a
separate but related action concerning the same subject matter
in the same court.56
In our opinion in the previous appeal, we referred to the fact
that both Western Ethanol’s articles of dissolution in Nevada
and its certificate of cancellation in California attested that it
had distributed all of its assets to its members.57 In that appeal,
the statement of facts section of Midwest Renewable’s brief
of appellant referred to the affidavit filed by Vind which indi-
cated that, as the result of Western Ethanol’s dissolution, Vind
received the asset of the judgment against Midwest Renewable.
Midwest Renewable’s brief stated Vind’s affidavit established
that the judgment against Midwest Renewable had been trans-
ferred to Vind and that he was then the interested party.
Western Ethanol’s brief of appellee stated in its statement of
facts that Vind had received the judgment against Midwest
Renewable. In its reply brief, Midwest Renewable accepted
the statement of facts and explained that Vind had received
the judgment prior to December 31, 2013, the date of Western
Ethanol’s dissolution.
[16] A judicial admission is a formal act done in the
course of judicial proceedings which is a substitute for evi-
dence, thereby waiving or dispensing with the production of
evidence by conceding for the purpose of litigation that the
proposition of fact alleged by the opponent is true.58 Similar
to a stipulation, judicial admissions must be unequivocal,
deliberate, and clear, and not the product of mistake or
inadvertence.59 Additionally, an admission does not extend
55
Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
56
Id.
57
See Midwest Renewable Energy, supra note 1.
58
In re Estate of Radford, supra note 51.
59
Id.
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beyond the intendment of the admission as clearly disclosed
by its context.60
[17] Here, to support its argument that Western Ethanol’s
claim should be quieted, Midwest Renewable clearly, delib-
erately, and unequivocally declared that the judgment was
validly assigned to Vind. Midwest Renewable asserted that the
judgment was assigned solely to Vind and prior to Western
Ethanol’s dissolution. These admissions obviate the need for
evidence of a written assignment in the present matter and
defeat each of the arguments raised by Midwest Renewable in
its challenge to Vind’s standing. While parties cannot confer
subject matter jurisdiction upon a judicial tribunal by either
acquiescence or consent, nor may subject matter jurisdiction be
created by waiver, estoppel, consent, or conduct of the parties,
such does not prevent a party from conclusively admitting the
truth of an underlying fact required to establish subject matter
jurisdiction by judicial admission.61
For the sake of completeness, to the extent that Midwest
Renewable may contend that its admissions lack clarity or were
made unintentionally, Midwest Renewable is estopped from
asserting a position that is inconsistent from the position that it
previously advocated before this court.
[18,19] The doctrine of judicial estoppel protects the integ-
rity of the judicial process by preventing a party from taking
a position inconsistent with one successfully and unequivo-
cally asserted by the same party in a prior proceeding.62
Fundamentally, the intent behind the doctrine of judicial estop-
pel is to prevent parties from gaining an advantage by taking
one position in a proceeding and then switching to a different
position when convenient in a later proceeding.63 This doc-
trine, however, is to be applied with caution so as to avoid
60
Id.
61
Jacobs Engr. Group, supra note 4.
62
Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017).
63
Id.
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impinging on the truth-seeking function of the court, because
the doctrine precludes a contradictory position without exam-
ining the truth of either statement.64 We have held that bad
faith or an actual intent to mislead on the part of the party
asserting inconsistent positions must be demonstrated before
the judicial estoppel doctrine may be invoked.65
[20,21] Whether judicial estoppel is applicable turns on
whether the court has accepted inconsistent positions from the
plaintiff.66 Judicial acceptance does not require that a party
prevail on the merits, but only that the first court adopted
the position urged by the party, either as a preliminary mat-
ter or as part of a final disposition.67 In the prior appeal, we
accepted Midwest Renewable’s position to the extent that we
were persuaded that Vind qualified as an indispensable party.
We did not adopt Midwest Renewable’s position that Vind is
the real party in interest; we ordered the district court to make
that determination. But we credited Midwest Renewable’s
position on the factual issue of Vind’s ownership interest,
which was supported by Vind’s affidavit. We found that there
was a question in the case as to the owner of the judgment
and judgment lien and that the district court “could not make
a determination as to the owner of the judgment and the
judgment lien without affecting Vind’s ownership rights.”68
Midwest Renewable was advantaged by having this court
accept its factual position that the judgment had been assigned
to Vind, because we vacated a judgment that had been entered
against Midwest Renewable and remanded the cause for fur-
ther proceedings, which gave Midwest Renewable another
64
Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d
105 (2015).
65
Id.
66
Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009).
67
Id., citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595 (6th Cir. 1982).
68
Midwest Renewable Energy, supra note 1, 296 Neb. at 92, 894 N.W.2d at
237.
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opportunity to quiet Western Ethanol’s claim. As such, the
requirement of judicial acceptance of a prior inconsistent
position for purposes of the doctrine of judicial estoppel is
met here.
We find no evidence that Midwest Renewable acted in bad
faith. Midwest Renewable made efforts to obtain a copy of the
assignment and stated at oral argument before this court that
it did not know for sure who owned the judgment. However,
as demonstrated above, Midwest Renewable’s position in the
quiet title appeal went further than that by affirmatively declar-
ing that Vind owned the judgment.
Midwest Renewable’s self-contradictory approach is harmful
to the judicial process. In its two appeals, Midwest Renewable
has requested relief from this court while taking opposite sides
of the same factual issue. To permit Midwest Renewable to
argue the lack of evidence of a written assignment in this
case would be to allow Midwest Renewable to withdraw its
factual representations in the previous case, despite the fact
that we granted Midwest Renewable relief based on its prior
representations. For purposes of analyzing intent, we note that
Midwest Renewable’s previous position is more plausible than
its new position, because the previous position was consistent
with Western Ethanol’s position and was supported by Vind’s
affidavit, and there is no information in the record to corrobo-
rate the new position. These considerations, especially when
considered in light of the stark contrast between Midwest
Renewable’s factual positions in the two cases involving the
same judgment, lead us to conclude that there has been suf-
ficient demonstration of an intent to mislead in order to delay
execution on the judgment. Judicial estoppel is appropriate in
this instance.
Midwest Renewable’s judicial admissions establish that Vind
owns the judgment and judgment lien and is the real party in
interest. Midwest Renewable is estopped from asserting a con-
trary position. This assignment of error is without merit.
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(c) Vind Proper Party
Midwest Renewable’s final assignment of error is that Vind
should not have been permitted to enforce the judgment in his
own name, because he did not file a formal pleading or motion
to enter the case. Midwest Renewable argues that the court
never approved either a formal complaint for intervention or a
motion for substitution of parties.
We clarify that this argument comes to us in a different
context than the indispensable party issue we confronted in the
quiet title appeal. In that appeal, the district court found that
Vind held the sole interest in the judgment, yet Vind had never
appeared in the case. All persons whose rights will be directly
affected by a decree in equity must be joined as parties in order
that complete justice may be done and that there may be a
final determination of the rights of all parties interested in the
subject matter of the controversy.69 We held that the court erred
in not making Vind a party to the action sua sponte, vacated
the court’s judgment, and remanded the cause with direction to
make Vind a party.
[22] Here, Midwest Renewable raises a procedural objection
as to how Vind became a party in the case rather than a juris-
dictional objection about Vind’s lack of presence in the case.
We review this assignment of error for abuse of discretion.70 As
noted, Vind filed the praecipe for writ of execution in his own
name as assignee and personally appeared without objection
at the hearing on the motion to quash. The record shows that
the court accepted Vind’s appearance in the case. The court’s
decision is supported by legal authority. An action to enforce
a judgment may be prosecuted in the name of the assignee.71
As discussed above, § 25-302 states: “The assignee of a thing
69
Id. See Neb. Rev. Stat. § 25-323 (Reissue 2016).
70
See, Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d
792 (2005); John P. Lenich, Nebraska Civil Procedure § 7:6 (2019).
71
Exchange Elevator Company v. Marshall, 147 Neb. 48, 22 N.W.2d 403
(1946).
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in action may maintain an action thereon in the assignee’s
own name and behalf, without the name of the assignor.” Neb.
Rev. Stat. § 25-322 (Reissue 2016) provides that in the case
of a “transfer of interest, the action may be continued in the
name of the original party or the court may allow the person
to whom the transfer is made to be substituted in the action.”
Neb. Rev. Stat. § 25-705(5) (Reissue 2016) provides that
“[p]arties may be dropped or added by order of the court on
motion of any party or of its own initiative at any stage of the
action . . . .” Having determined that Vind is the real party in
interest and has the right to execute the judgment, and in con-
sideration of the court’s authority to add a party to a proceed-
ing at any time, we find no abuse of discretion by the court in
accepting Vind’s appearance in this case. Midwest Renewable
never moved for a substitution of parties and did not raise an
objection to Vind’s appearance until it filed its motion to alter
or amend. Failure to make a timely objection waives the right
to assert prejudicial error on appeal.72 This assignment of error
is without merit. The court did not err in overruling the motion
to quash.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
72
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).