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Cite as 27 Neb. App. 574

Ralston Investment Group, Inc., a Ne

corporation, et al., appellants

David Wenck, appel

___ N.W.2d ___

Filed September 17, 2019. No. A-18-718.

1 Trial: Witnesses. In a bench trial of an action at law, the trial court is 

the sole judge of the credibility of the witnesses and the weight to be 

given their testimony.

2. Judgments: Appeal and Error. In reviewing a judgment awarded 

in a bench trial of a law action, an appellate court does not reweigh 

evidence, but considers the evidence in the light most favorable to the 

successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible 

from the evidence.

3. ____: ____. In a bench trial of a law action, the trial court’s factual findings have the effect of a jury verdict and will not be disturbed on appeal 

unless clearly wrong.

4. ____: ____. An appellate court independently reviews questions of law 

decided by a lower court.

5. Contracts: Parties: Intent. A contract is not formed if the parties 

contemplate that something remains to be done to establish contractual 

arrangements or if elements are left for future arrangement.

6. Contracts. It is a fundamental rule that in order to be binding, an agreement must be definite and certain as to the terms and requirements.

7. Guaranty: Promissory Notes: Contribution. A guarantor of a promissory note who has made payment may seek contribution from a coguarantor for that party’s proportionate share of the obligation.

8. Tort-feasors: Liability: Contribution: Compromise and Settlement.

A tort-feasor who enters into a settlement with a claimant is not entitled 

to recover contribution from another tort-feasor whose liability for the 

injury or wrongful death is not extinguished by the settlement.

9. ____: ____: ____: ____. In order to recover on a claim for contribution among joint tort-feasors, the following elements must be shown: 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/17/2019 09:06 AM CDT
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(1) There must be a common liability among the party seeking contribution and the parties from whom contribution is sought; (2) the party 

seeking contribution must have paid more than its pro rata share of the 

common liability; (3) the party seeking contribution must have extinguished the liability of the parties from whom contribution is sought; 

and (4) if such liability was extinguished by settlement, the amount paid 

in settlement must be reasonable.

Appeal from the District Court for Douglas County: Gregor

M. Schatz, Judge. Affirm

Benjamin M. Belmont, Sean D. Cuddigan, Wm. Oliver 

Jenkins, and Jake Houlihan, Senior Certified Law Student, 

of Brodkey, Cuddigan, Peebles, Belmont & Line, L.L.P., 

for appellants.

Travis W. Tettenborn and Mark A. Grimes, of Cline, 

Williams, Wright, Johnson & Oldfather, L.L.P., for appellee.

Riedmann, Arterburn, and Welch, 

Welch, Judge

INTRODUCTION

Ralston Investment Group, Inc. (RIG), and three of its shareholders, James Linhart, Alan Bennett, and Kevin Hitzemann, 

sued shareholder David Wenck for breach of contract after 

he failed to contribute capital to RIG and for contribution to 

reimburse them for allegedly paying more than their proportional share of guaranteed debt to American National Bank 

(ANB). The court found for Wenck on both counts, and RIG, 

Linhart, Bennett, and Hitzemann (collectively Appellants) 

appeal.

STATEMENT OF FACTS

In January 2004, Linhart, Bennett, Hitzemann, Steve Strong, 

and Wenck formed RIG, a Nebraska corporation, to build and 

operate a gas station and convenience store. Linhart, Bennett, 

Strong, Hitzemann, and Wenck contributed capital to RIG and 

received stock ownership interests in the following amounts 

and proportions:
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 Ownership

Investor Contribution Interest

Linhart $120,000 30%

Bennett $120,000 30%

Strong $ 80,000 20%

Hitzemann $ 40,000 10%

Wenck $ 40,000 10%

The shareholders did not execute bylaws or a shareholder 

agreement.

After the construction of the gas station and convenience 

store was completed in early 2005, RIG borrowed $1,421,610 

from ANB to provide operating cash for the business. RIG also 

obtained a $50,000 line of credit from ANB. The parties testified that each shareholder guaranteed the operating loan and 

line of credit at the rate of 125 percent of their ownership interest percentage in RIG, which equates to the amounts shown in 

the table below. These amounts were reflected in the written 

guaranty agreements received into evidence with the exception 

of those of Strong, whose written guaranties were not offered 

nor received into evidence, and Wenck’s line of credit guaranty, which the parties testified could not be located:

Amount Amount 

Guaranteed on Guaranteed on Total Amount

Investor $1.4M Note Line of Credit Guaranteed

Linhart $533,103.75 $18,750 $551,853.75

Bennett $533,103.75 $18,750 $551,853.75

Strong $355,402.50 $12,500 $367,902.50

Hitzemann $177,701.25 $ 6,250 $183,951.25

Wenck $177,701.25 $ 6,250 $183,951.25

The written guaranty agreements specifically indicated that the 

respective shareholders unconditionally guaranteed to pay the 

indebtedness incurred by RIG owing to ANB up to the stated 

sum listed above, but do not reference a pro rata rate or basis 

upon which the guaranteed sums were determined.

In 2006, RIG experienced cash shortfalls. Linhart, Bennett, 

and Hitzemann testified that, in order to address RIG’s cash 
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needs, in 2006, the parties met and orally agreed that when 

RIG needed additional cash, the parties would be obligated 

to contribute necessary cash to RIG in proportion to their 

ownership interests in RIG. In contrast, Wenck testified that 

the parties’ oral agreement was to address RIG’s capital needs 

on an ongoing basis, but that he never agreed to make ongoing, obligatory cash contributions to RIG in connection with 

all future requests for capital calls, or “cash calls.” Instead, 

Wenck testified that, on a case-by-case basis, if RIG needed 

cash, he would attempt to contribute cash in proportion to his 

ownership interest if he could, but that he never agreed to be 

permanently obligated on all future cash calls. Wenck further 

testified that, in 2006, he separately met with his own counsel 

and was advised he was not legally obligated to make capital 

contributions on future cash calls but could do so on a voluntary basis.

The parties collectively agreed that they first agreed to contribute $100,000 to RIG in 2006 with each party, including 

Wenck, contributing proportionately to their ownership interests 

in RIG. The parties likewise agreed that all shareholders contributed, with the exception of Strong, who, in 2006, sold his ownership interest in RIG to Hitzemann and Wenck, with Hitzemann 

and Wenck each purchasing half of Strong’s 20-percent 

interest in RIG. In connection with the purchase price for 

Strong’s interest in RIG, instead of paying Strong, Hitzemann 

and Wenck each paid $10,000 of the purchase price to RIG 

to cover Strong’s unpaid share of the capital contribution. 

The purchase agreement governing Strong’s sale of his interest in RIG did not reference Strong’s personal guaranty with 

ANB, nor did the agreement reference Hitzemann’s or Wenck’s 

assuming any of Strong’s liabilities. The parties offered no 

evidence governing whether Strong’s personal guaranties with 

ANB were extinguished as a part of the transaction.

RIG was never profitable for any significant length of 

time. Between 2006 and 2014, the shareholders made several 

more capital calls and Wenck contributed to some of them; 
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however, over the life of RIG, he was $60,264.51 short of 

contributing his proportional ownership interest in relation to 

Linhart, Bennett, and Hitzemann, who made capital contributions in accordance with their ownership interests in RIG. In 

June 2014, RIG sold the gas station and convenience store and 

the proceeds of the sale were applied toward paying the debt 

RIG owed to ANB.

On August 14, 2014, ANB sent a letter to the four thencurrent shareholders stating that the unpaid balance of RIG’s 

two loans, after applying the net sale proceeds of the gas station 

and convenience store, was $828,479.47. Additionally, ANB 

advised that there was a prepayment penalty of $15,431.59 

which ANB offered to waive if one or more of the guarantors 

voluntarily paid the balance. ANB stated it would prefer to 

make arrangements to satisfy the debt with the group rather 

than pursuing the matter individually; however, ANB also 

reminded the current shareholders of their maximum guaranteed obligations on RIG’s then-current outstanding obligations 

to ANB and of ANB’s right to pursue each individual up to the 

amount of their full personal guaranteed sums.

On September 18, 2014, ANB sent the four current shareholders a demand letter stating that RIG was in default and 

owed $848,343.53. On October 31, Wenck individually settled 

his guaranteed obligation to ANB in the amount of $80,000 

by agreeing to make a $1,000 downpayment and by agreeing to make 79 monthly payments of $1,000 thereafter for 

the following 79 months. Under the terms of the settlement 

agreement, Wenck would not be fully released from his full 

guaranteed obligation to ANB until he made all 80 payments. 

The settlement agreement provided that should Wenck fail to 

make any required payment obligation, ANB reserved the right 

to terminate the agreement and pursue Wenck’s full guaranteed 

obligation to ANB. At the time of trial, Wenck believed he had 

made roughly half of his 80 payments. The relevant portions 

of the settlement agreement will be set forth in the analysis 

portion of this opinion.
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In November 2014, ANB brought an action against 

Appellants on the debt. The three shareholders made an initial 

tender payment of $773,788.09, which Hitzemann testified 

was made in order to stop interest from accruing. In December 

2015, Linhart, Bennett, and Hitzemann settled the remainder 

of the debt for $44,000. The relevant portions of the settlement agreement will be set forth in the analysis portion of 

this opinion. The following is the total settlement amount each 

shareholder paid, or in Wenck’s case, was to pay, to ANB:

Shareholder Amount Paid to ANB

Linhart $316,918.42

Bennett $316,918.42

Hitzemann $183,951.25

Wenck $ 80,000.00

The record is unclear regarding the exact amount RIG owed 

to ANB at the time of the settlement agreement between ANB 

and Appellants or how much debt was contingently forgiven 

by ANB as part of the final settlement.

In July 2016, Appellants filed a complaint against Wenck 

seeking contribution from Wenck for allegedly overpaying 

their allocable share of guaranteed debt to ANB. The complaint 

also alleged that by failing to make capital contributions in 

proportion to his ownership interest, Wenck had breached a 

contract with RIG, and that Wenck owed RIG for his remaining 

share of the capital contributions.

The court held a bench trial on May 10 and 11, 2018, and 

found for Wenck on both counts. Regarding contribution, the 

court found that no party had paid more than their pro rata share 

of the original debt and that Linhart, Bennett, and Hitzemann’s 

settlement with ANB had not extinguished Wenck’s liability to 

ANB. Regarding the breach of contract claim, the court found 

that the terms of the alleged oral contract to contribute capital 

to RIG were not sufficiently specific to show a meeting of the 

minds and, alternatively, the alleged oral contract was unenforceable because it violated the statute of frauds. Accordingly, 

the court entered judgment for Wenck.
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ASSIGNMENTS OF ERROR

Appellants’ assignments of error, combined and restated, are 

that the district court erred in denying their claims for breach 

of contract and for contribution.

STANDARD OF REVIEW

[1-3] In a bench trial of an action at law, the trial court is 

the sole judge of the credibility of the witnesses and the weight 

to be given their testimony. See Liljestrand v. Dell Enters., 

287 Neb. 242, 842 N.W.2d 575 (2014). In reviewing a judgment awarded in a bench trial of a law action, an appellate 

court does not reweigh evidence, but considers the evidence 

in the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party, who 

is entitled to every reasonable inference deducible from the 

evidence. Hooper v. Freedom Fin. Group, 280 Neb. 111, 784 

N.W.2d 437 (2010). See, also, Black v. Brooks, 285 Neb. 440, 

827 N.W.2d 256 (2013). In a bench trial of a law action, the 

trial court’s factual findings have the effect of a jury verdict 

and will not be disturbed on appeal unless clearly wrong. Black 

v. Brooks, supra.

[4] An appellate court independently reviews questions of 

law decided by a lower court. Jacobs Engr. Group v. ConAgra 

Foods, 301 Neb. 38, 917 N.W.2d 435 (2018).

ANALYSIS

Breach of Cont

Appellants contend that Wenck breached his contract by 

failing to make all capital contributions to RIG in proportion to his ownership interest in RIG when the other investors 

made capital contributions to RIG. Appellants’ contract claim 

is based upon a meeting allegedly held in 2006 in which the 

shareholders discussed RIG’s need for cash. Under Appellants’ 

version of the agreement, a contract was formed during that 

2006 meeting whereby the parties agreed to make future 

cash contributions in proportion to their respective ownership 

interests in RIG whenever the shareholders agreed RIG was 
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in need of cash. Appellants’ theory of the case is based upon 

a single agreement stemming from a 2006 meeting and is to 

be distinguished from a claim that, from time to time, Wenck 

agreed to make specific capital contributions but failed to do 

so. Conversely, Wenck claims he agreed to a contribution in 

2006, made that contribution, and agreed he would participate 

in future contributions if he was able, but never agreed to 

make all future cash contributions whenever cash was needed 

by RIG.

[5,6] To create a contract, there must be both an offer and 

an acceptance; there must also be a meeting of the minds or a 

binding mutual understanding between the parties to the contract. Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 

808 (2015). A contract is not formed if the parties contemplate 

that something remains to be done to establish contractual 

arrangements or if elements are left for future arrangement. Id. 

It is a fundamental rule that in order to be binding, an agreement must be definite and certain as to the terms and requirements. MBH, Inc. v. John Otte Oil & Propane, 15 Neb. App. 

341, 727 N.W.2d 238 (2007).

The trial court, in its role as fact finder, determined that 

there was insufficient evidence adduced to conclude that a 

contract which obligated the parties to contribute to all future 

cash calls was formed. As the trial court noted, Appellants did 

not provide any evidence of certain key terms of the alleged 

contract, including but not limited to, how the need for capital 

contributions was to be determined in the future. The question 

of whether a 2006 oral contract was formed by the parties was 

a question of fact. In a bench trial of a law action, the trial 

court’s factual findings have the effect of a jury verdict and 

will not be disturbed on appeal unless clearly wrong. Black v. 

Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).

Here, Wenck’s version of what took place during the 2006 

meeting among the parties was certainly reasonable. Wenck 

testified that in connection with the then-current cash situation involving RIG, he separately consulted with his counsel 
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and learned that he was not legally obligated to make future 

cash contributions to RIG and that future contributions were 

voluntary. Wenck testified he had to borrow the initial $40,000 

he invested in RIG and agreed that he would contribute in the 

future if he was financially able to do so, but that he did not, 

and could not, agree to make a blanket agreement to make all 

future cash contributions whenever RIG needed cash. There 

was likewise a sparse amount of evidence of what a cash call 

would look like, including but not limited to, whether cash 

calls were to be dictated by the board or the shareholders, 

what percentage vote was needed, or other important parameters that would typically be associated with raising cash for 

a business. The trial court was not clearly wrong in finding 

that Appellants failed to prove the terms or formula of an 

alleged 2006 oral contract to perpetually contribute funding to RIG. Thus, this assignment of error fails. Because we 

find Appellants failed to prove the formation of an alleged 

oral contract in 2006, we need not address the court’s alternate finding that the alleged oral contract was unenforceable 

because it violated the statute of frauds.

Contribu

Appellants next argue that the district court erred in finding 

that they could not recover under their contribution cause of 

action. In so finding, the court first found that neither Linhart, 

Bennett, nor Hitzemann paid more than the amount stated in 

his personal guaranty to ANB in connection with their settlement with ANB and none paid more than their “pro-rata share 

of the initial guaranteed corporate debt, based on his ownership interest in RIG.” The court held that “[b]ecause no individual shareholder paid more than his pro-rata share of the 

initial guaranteed corporate debt, none may seek contribution 

from any other.” Second, the court found:

[Appellants] have further failed to prove that [Wenck’s] 

liability to ANB has been extinguished by their payments to ANB. [Wenck] settled his guaranty obligation to 
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ANB, and [Wenck] has yet to pay the settlement in full, 

and should [Wenck] default in his settlement agreement 

with ANB, there is nothing to stop ANB from seeking 

[Wenck’s] total liability under his personal guaranty to 

ANB. None of [Wenck’s] liability to ANB has been extinguished by any of [Appellants].

The Court therefore finds that [Appellants] have 

failed to prove their [contribution] cause of action of 

their Complaint.

Appellants argue that both of the court’s findings are erroneous.

The concepts discussed by the court stem from pronouncements by the Nebraska Supreme Court in Exchange Elevator 

Company v. Marshall, 147 Neb. 48, 22 N.W.2d 403 (1946); 

Rodehorst v. Gartner, 266 Neb. 842, 669 N.W.2d 679 (2003); 

and Estate of Powell v. Montange, 277 Neb. 846, 765 N.W.2d 

496 (2009). In Exchange Elevator Company v. Marshall, 

supra, the Nebraska Supreme Court outlined the general 

rule of contribution involving joint debtors. The Supreme 

Court held:

The rule likewise is stated: “Unless otherwise agreed, 

a person who has discharged more than his proportionate 

share of a duty owed by himself and another as to which, 

between the two, neither had a prior duty of performance, is entitled to contribution from the other, except 

where the payor is barred by the wrongful nature of his 

conduct.” And “The rule applies where two or more persons sign a note as makers for their joint benefit . . . .” 

Restatement of the Law, Restitution, § 81, p. 360. See, 

also, 10 C. J. S., Bills and Notes, § 37, p. 466. “Every 

joint debtor who has been compelled to pay more than 

his share of the common debt has the right of contribution 

from each of his codebtors.” 18 C. J. S., Contribution, § 9, 

p. 12. See, 13 C. J., Contribution, § 13, p. 826. We have 

stated the rule as follows: “. . . in equity a surety paying 

a judgment against himself and his principal is entitled to 

be subrogated to the rights of the original creditor, and to 
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have the judgment assigned to him or to some one else 

for his benefit.” Kramer v. Bankers’ Surety Co., 90 Neb. 

301, 133 N.W. 427.

The rule as to the amount that can be recovered where 

contribution is sought has been stated by the authorities. 

“A person who has discharged more than his proportionate share of a duty owed by himself and another, as to 

which neither of the two had a prior duty of performance, and who is entitled to contribution from the other 

under the rules stated in sections 81-84, is entitled to 

reimbursement, limited (a) to the proportionate amount 

of his net outlay properly expended . . . . A surety or 

other co-obligor becoming such without the fault of a 

co-obligor is entitled to no more by way of contribution than will put him on an equality of loss with others 

in view of his share of the obligation undertaken. This 

is true even though he obtains an assignment from the 

creditor . . . . In the first case he may be entitled to 

proportionate reimbursement only to the extent that payment to the creditor diminishes the debt of the other . . 

. .” Restatement of the Law, Restitution, § 85, p. 375. “A 

party who has made a partial payment is not entitled to 

contribution, even though the others have paid nothing, 

until his own payment exceeds his proportionate share 

of the whole debt, and he is then entitled to collect a 

proportionate share only of the excess, from each party, 

the proportionate share in each case being determined 

by dividing the total sum in question among the number 

of solvent parties within the jurisdiction of the court.” 5 

Pomeroy, Equity Jurisprudence (2 ed.), § 2341, p. 5178. 

“This right of contribution is one which belongs to 

one of two or more joint obligors. It is a right which 

grows out of the relation of the parties to the contract. 

It is a right given to protect one of the joint obligors 

in the event he has been compelled to discharge the 

whole debt, or more than his proportionate part of the 
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whole debt. The right of contribution is an individual 

and personal right. It grows out of what the individual 

himself does. It is a right which accrues to one or more 

individuals (out of the whole number bound) who pay 

the debt for which they are all bound. Each one paying 

is entitled to recover from the others the amount which 

he has paid in excess of his own proportionate part. His 

right to recover is dependent upon the excess which he 

himself pays. In other words, the act is individual, and 

the right of contribution is individual. The right of contribution rests upon an implied contract to repay, which 

contract the law itself implies from the relationship of 

the parties.” 2 Story, Equity Jurisprudence (14 ed.), 

§ 648, p. 63.

Exchange Elevator Co. v. Marshall, 147 Neb. 48, 60-62, 22 

N.W.2d 403, 410-11 (1946).

[7] In Rodehorst v. Gartner, 266 Neb. 842, 848-50, 669 

N.W.2d 679, 685 (2003), the Nebraska Supreme Court 

explained:

A guaranty is a collateral undertaking by one person 

to answer for the payment of a debt or the performance 

of some contract or duty in case of the default of another 

person who is liable for such payment or performance in 

the first instance. Northern Bank v. Dowd, supra; Chiles, 

Heider & Co. v. Pawnee Meadows, 217 Neb. 315, 350 

N.W.2d 1 (1984). . . .

. . . In Mandolfo v. Chudy, supra, we held that under 

Exchange Elevator Company v. Marshall, 147 Neb. 48, 

22 N.W.2d 403 (1946), a guarantor of a promissory 

note who had made payment could seek contribution 

from a coguarantor for that party’s proportionate share of 

the obligation.

[8,9] In further defining the right of contribution, albeit in 

the context of joint tort-feasors, the Nebraska Supreme Court 

stated in Estate of Powell v. Montange, 277 Neb. 846, 851, 765 

N.W.2d 496, 500-01 (2009):
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Although this court has recognized a right of contribution among joint tort-feasors who share a common 

liability, we have not specifically addressed whether a 

tort-feasor who enters into a settlement with the claimant 

can recover contribution from another tort-feasor whose 

liability for the injury or wrongful death is not extinguished by the settlement.

Noting that the Nebraska Legislature had not established rules 

of contribution among joint tort-feasors, the court in Estate 

of Powell analyzed provisions from the Uniform Contribution 

Among Tortfeasors Act (UCATA), 12 U.L.A. § 1 et seq. (2008), 

or versions of the UCATA adopted in a number of states. In 

doing so, the court in Estate of Powell stated that in addition to 

the UCATA corresponding with the Nebraska Supreme Court’s 

general recognition of a right to contribution,

the UCATA also places limits on the right of contribution. Only a tort-feasor who has paid more than his or her 

pro rata share of the common liability may seek contribution, and recovery is limited to the amount paid in excess 

of his or her pro rata share. No tort-feasor is compelled to 

make contribution beyond his or her own pro rata share 

of the entire liability. UCATA § 1(b), 12 U.L.A. 201. 

This also corresponds with our requirement set forth in 

Royal Indemnity.

The right of contribution is not available in all instances 

or circumstances. The UCATA places restrictions on contribution if a settlement has been entered into. “A tortfeasor who enters into a settlement with a claimant is not 

entitled to recover contribution from another tortfeasor 

whose liability for the injury or wrongful death is not 

extinguished by the settlement nor in respect to any 

amount paid in a settlement which is in excess of what 

was reasonable.” UCATA § 1(d), 12 U.L.A. at 202.

277 Neb. at 851-52, 765 N.W.2d at 501. After reviewing this 

and other authorities, the court ultimately held:

We now hold that in order to recover on a claim 

for contribution among joint tort-feasors, the following 
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elements must be shown: (1) There must be a common 

liability among the party seeking contribution and the 

parties from whom contribution is sought; (2) the party 

seeking contribution must have paid more than its pro 

rata share of the common liability; (3) the party seeking 

contribution must have extinguished the liability of the 

parties from whom contribution is sought; and (4) if such 

liability was extinguished by settlement, the amount paid 

in settlement must be reasonable.

Id. at 855-56, 765 N.W.2d at 504.

Although the court in Estate of Powell defined these elements in connection with claims of contribution among joint 

tort-feasors, the principles apply equally to claims of contribution among codebtors. But applying those principles here has 

led to confusion among the litigants. Although both Wenck 

and Appellants recognize that a party cannot pursue contribution until he or she has paid more than his or her “pro rata 

share of the common liability,” there is disagreement on how 

that applies in the context of coguarantors. Where, as here, 

the coguarantors guaranteed a specific amount of the original 

underlying debt, the questions become: What is their pro rata 

share of the common liability? Is their pro rata share a percentage of their personally guaranteed amount in relation to 

the total personally guaranteed debt of all guarantors? Is their 

pro rata share their percentage ownership in the corporation? 

Is the “common liability” the original debt, the debt obligation remaining on the original debt, or the settlement amount 

when the common liability is extinguished by settlement? How 

are these issues to be resolved when the parties do not have 

a separate agreement allocating these rights and obligations 

among them? The parties spend a significant amount of time 

in their briefs arguing for different application of these principles; however, we need not address those arguments here, 

because we find that on this record, the parties seeking contribution failed to extinguish the liability of Wenck, the party 

from whom contribution was sought.
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The parties’ original guaranties were for the following 

amounts:

Original $50,000 Line 

$1,421,610 of Credit: Percent in

Debt: Amount Amount Percent in Relation to

Personally Personally Relation to Original

Guaranteed Guaranteed Guarantors Debt

Linhart $ 533,103.75 $18,750 30% 37.5%

Bennett 533,103.75 18,750 30% 37.5%

Strong 355,402.50 12,500 20% 25.0%

Hitzemann 177,701.25 6,250 10% 12.5%

Wenck 177,701.25 6,250 10% 12.5%

Amount

Guaranteed $1,777,012.50 $62,500 100% 125.0%

In formulating this summary, we first note that Strong’s 

personal guaranty was not made part of the record, and 

we list his personally guaranteed dollar amount based upon 

unrefuted oral testimony that he personally guaranteed 125 

percent of his 20-percent interest in relation to the original 

corporate debt of $1,421,610 and the line of credit of $50,000. 

Accordingly, although each original investor guaranteed a 

higher percentage interest in the original corporate debt and 

the line of credit than their ownership percentage interest in 

RIG, their personal guaranties in relation to each other were 

the same as their ownership interest in RIG. We next note 

that the record is devoid of what happened to Strong’s guaranty when he sold his ownership interest to Hitzemann and 

Wenck in 2006. Although Hitzemann and Wenck each purchased half of Strong’s 20-percent ownership interest in RIG, 

neither assumed Strong’s debt obligations, and the record is 

completely silent as to whether Strong remained a guarantor to ANB following the sale of his ownership interest to 

Hitzemann and Wenck.

Following the sale of Strong’s ownership interest, and after 

the business was sold and the proceeds applied to the outstanding corporate debt, there remained a deficiency on the 

corporate debt which ANB desired to pursue. In August 2014, 
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ANB sent a letter to Linhart, Bennett, Hitzemann, and Wenck, 

but not Strong, stating that the then-unpaid balance of RIG’s 

two loans, after application of the net sale proceeds of the collateral, was $828,479.47, which sum did not include a prepayment penalty of $15,431.59. In the letter, ANB stated it would 

prefer to make arrangements to satisfy the debt as a group 

rather than pursuing the matter individually, but the letter 

reminded the group of their maximum guaranteed individual 

amounts and ANB’s right to pursue each individual up to the 

amount of his full personal guaranty.

In September 2014, the group received a demand letter requesting the then-outstanding balance of $848,343.53. 

Subsequent to that letter, Wenck settled with ANB for the sum 

of $80,000 subject to a payment plan to be discussed below.

On November 14, 2014, ANB filed a lawsuit against 

Appellants for $871,334. Linhart, Bennett, and Hitzemann made 

a tender payment of $773,788.09 in order to reduce accruing 

interest. One year later, in December 2015, Appellants settled 

the lawsuit for another $44,000, for a total of $817,778.09. 

Between the two payments, Linhart and Bennett each contributed $316,918.42 and Hitzemann contributed $183,951.25 

toward the settlement. In July 2016, Linhart, Bennett, and 

Hitzemann filed a complaint against Wenck seeking contribution from Wenck in the amount of $99,557.61.

Critical to our analysis here are the terms of ANB’s settlements with Wenck and Appellants. Under the terms of ANB’s 

settlement with Wenck, Wenck was to pay $1,000 upon execution of the agreement and make 79 consecutive monthly 

payments of $1,000 each, commencing December 1, 2014. 

Wenck’s $80,000 settlement was less than his guaranteed 

sum to ANB of $183,951. Notably, the settlement agreement stated:

3. Release of Wenck. Upon receipt of the total sum of 

$80,000.00, Lender will fully and finally release, acquit 

and forever discharge Wenck from all claims, liabilities, 

damages, actions, causes of actions of any kind and of 
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every nature whatsoever which Wenck ever had, or may 

have, whether known or unknown, regarding any indebtedness now owing by Wenck to Lender.

4. Default procedures.

. . . .

b. Consequences of Default. In the event that Wenck 

defaults in payment of the monthly installments as provided herein and fails to timely cure after notice any 

such defaults, Lender may in its sole discretion terminate 

this Agreement without further notice to Wenck. Upon 

termination, the obligations of Wenck on his guarantees 

of the RIG loans shall be fully reinstated; and Lender 

shall be entitled to immediately pursue recovery from 

Wenck by all lawful means, including an action at law 

on his Commercial Guaranty(s) of the loans of RIG, for 

the entire remaining outstanding balances unpaid on the 

RIG Loans, limited however to the extent of Wenck’s 

aggregate guarantee liabilityof [sic] $183,951, as reduced 

by payments received by Lender under the terms of 

this Agreement.

As such, ANB reserved its right to pursue any deficiency in 

RIG’s loan obligation up to Wenck’s full guaranteed amount if 

he defaulted on any payment obligation.

In its December 2015 settlement agreement with Appellants, 

ANB further stated:

4. Upon timely receipt of payment of the Settlement 

Amount of $44,000.00 from the Majority Guarantors, the 

Bank, the Ralston Group, and Majority Guarantors shall 

execute a stipulated motion to dismiss the action filed 

in the District Court of Douglas County, Nebraska, and 

entitled, American National Bank vs. Ralston Investment 

Group, Inc., Alan D. Bennett, James B. Linhart, and 

Kevin J. Hitzemann (Case No. CI 14-8883), in the following manner:

a) All claims asserted by the Bank in its Second 

Amended Complaint against the Majority Guarantors, 
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together with all Counterclaims asserted by the Majority 

Guarantors shall be dismissed with prejudice; and

b) All claims asserted by the Bank in its Second 

Amended Complaint against the Ralston Group shall be 

dismissed without prejudice, and the Bank shall retain 

the original Promissory Notes of the Ralston Group. The 

Bank expressly reserves and preserves all claims that it 

has against shareholder David Wenck under the Wenck 

Agreement and Commercial Guaranty of the Ralston 

Group Loans executed and delivered to the Bank by 

David Wenck.

The settlement agreement does not expressly state how 

much of the outstanding indebtedness was being released as 

part of the $44,000 settlement between ANB and Appellants, 

and it is not possible to calculate the exact number from the 

record before this court. That said, whatever the number, ANB 

expressed its right in both settlement agreements to pursue 

that contingently forgiven sum against Wenck up to the full 

amount of his guaranty if he ever defaulted on any of his payment obligations. At the time of trial, Wenck had completed 

only about half of his payments under the terms of his settlement agreement. Taken together, it is clear that Appellants, the 

parties seeking contribution, failed to extinguish the liability 

of the party from whom contribution was sought. Thus, no 

matter how the parties’ pro rata share of the common liability 

is calculated, Appellants failed to establish a critical element 

to recover on their claim of contribution. Following their 

settlement with Appellants, ANB reserved the right to pursue 

a claim against Wenck up to the full amount of his personal 

guaranty, and Wenck was not obligated to contribute beyond 

his pro rata share of the entire liability which remained possible here with ANB reserving its rights against him. See Estate 

of Powell v. Montange, 277 Neb. 846, 765 N.W.2d 496 (2009).

Because Appellants failed to extinguish the liability of Wenck 

to ANB with their settlement, we hold the court did not err in 

denying Appellants their contribution claim.
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CONCLUSION

We hold that the district court was not clearly wrong in finding that there was no oral contract formed among the parties 

requiring them to fund all future capital contributions to RIG. 

We further hold that the district court did not err in finding 

that Appellants have no right of contribution against Wenck, 

because they did not extinguish Wenck’s liability to ANB in 

connection with their settlement. Both assignments of error 

fail, and we affirm the order of the district court.

Affirme