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LINDSAY INTERNAT. SALES & SERV. v. WEGENER

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Lindsay International Sales & Service, LLC

v. Michael J. Wegener, an individ

Jerome Pribil, an individual, app

___ N.W.2d ___

Filed September 7, 2018. No. S-16-1051.

1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

2. Directed Verdict: Evidence. A directed verdict is proper at the close 

of all the evidence only when reasonable minds cannot differ and can 

draw but one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law.

3. Jury Instructions. Whether a jury instruction is correct is a question 

of law.

4. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

6. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

7. Judges: Words and Phrases. A judicial abuse of discretion exists if 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

Nebraska Supreme Court Online Library

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

10/26/2018 09:13 AM CDT
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depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

8. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial for an abuse of discretion.

9. Contracts: Words and Phrases. A lack of consideration means no 

contract is ever formed because no consideration exists or none was 

intended to pass. A failure of consideration, on the other hand, means 

the contract is valid when formed but becomes unenforceable because 

the performance bargained for has not been given.

10. Directed Verdict: Appeal and Error. When it follows logically from 

a jury’s findings that a theory on which a directed verdict was granted 

could not have been successful, the directed verdict cannot be said to 

have affected the outcome and is, at most, harmless error.

11. Trial: Evidence. Evidence that is irrelevant is inadmissible.

12. Evidence. Evidence is relevant if it has any tendency to make the 

existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without 

the evidence.

13. ____. Relevancy requires only that the degree of probativeness be something more than nothing.

Appeal from the District Court for Platte County: Robert R

Steinke, Judge. Affirme

Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, 

Hurd, Luers & Ahl, L.L.P., and Barry D. Geweke, of Stowell & 

Geweke, P.C., L.L.O., for appellants.

John M. Lingelbach and John V. Matson, of Koley Jessen, 

P.C., L.L.O., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, and Papik, J

Schreiner, District Jud

Papik, J

Lindsay International Sales & Service, LLC (Lindsay), 

sued Michael J. Wegener and Jerome Pribil in the district 

court for Platte County to collect amounts Lindsay claimed 

were due on personal guaranties. The district court granted 

Lindsay’s motion for a directed verdict on certain affirmative 

defenses raised by Wegener and Pribil and instructed the jury 
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accordingly. The jury returned a verdict in favor of Lindsay 

for the full amount sought. Wegener and Pribil now appeal. 

They challenge the directed verdict, the jury instructions, the 

admission of evidence concerning their personal finances, and 

the denial of their motion for new trial. Finding no reversible 

error, we affirm.

BACKGROUND

Initial Discussions Between Wegener, 

Pribil, and Lindsay.

This case has its genesis in Wegener and Pribil’s participation in an agricultural business venture in Mexico. Wegener 

and Pribil and another individual, Isaak Wall, also known as 

Isaak Wall Vogt, formed a business entity in Mexico called 

Ko’ol Agricola S.P.R. de R.L. de C.V. (Ko’ol Ag). Wegener, 

Pribil, and Wall planned to have Ko’ol Ag purchase or lease 

land in Mexico and raise crops there.

Wegener, Pribil, and Wall planned to take advantage of 

their respective backgrounds to operate Ko’ol Ag. Because 

Wall had ownership interests in at least two agricultural equipment dealers and ties to Mexico, he would be responsible 

for obtaining and setting up irrigation pivots on behalf of 

Ko’ol Ag. Wegener and Pribil, both of whom conduct farming 

operations in Nebraska, would provide the finances and farming expertise.

Beginning in November 2012, Wegener and Pribil had discussions with agents of Lindsay about purchasing pivots for 

the farming operation in Mexico. Wegener and Pribil indicated 

their desired terms for the purchase of pivots. The global director of credit for Lindsay’s parent company told Wegener and 

Pribil that to obtain those terms from Lindsay, they would need 

to provide personal financial statements and provide personal 

guaranties for the amount owed for the pivots.

Wegener and Pribil also contend that Lindsay made representations to them about Wall and one of the equipment 

dealers in which he had an ownership interest, IJS Irrigation, 

LLC (IJS). The record contains varying accounts of those 
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representations. According to Wegener and Pribil, they were 

told that the pivots should be sold through IJS and that Wall 

and IJS were trustworthy and suitable partners for Wegener and 

Pribil in the pivot transaction.

Wegener and Pribil Agree to 

Personal Guaranties.

In December 2012, Wegener and Pribil provided personal 

guaranties to Lindsay. The agreements identified IJS as the 

principal debtor by describing the debt for which Wegener 

and Pribil were providing guaranties as follows: “For and 

in consideration of any existing indebtedness to [Lindsay] 

of IJS Irrigation, LLC invoices referencing customer KO’OL 

AGRICOLA S.P.R. de R.L. de C.V.”

In the guaranties, Wegener and Pribil agreed to guarantee the 

payment of any of the above-described debt in accordance with 

the terms of any agreement between the principal debtor and 

Lindsay. They also agreed that in the event of a default by the 

debtor, Lindsay would not be required to proceed first against 

the debtor, but could immediately proceed against them.

Pivots Are Ordered and Shipped.

After the parties executed the guaranty agreements, Lindsay 

received orders for 16 complete pivots. Neither Wegener nor 

Pribil placed the orders. Wegener believed that they were 

placed by Wall.

The resulting invoices issued by Lindsay indicated that the 

pivots were sold to IJS. The invoices referenced Ko’ol Ag in 

the item description. While the parties agree that the pivots 

were all shipped to the same shipping warehouse in Florida, 

they dispute whether all of the pivots were actually transferred to IJS. Pointing to some bills of lading that do not list 

the recipient of the pivot as IJS, Wegener and Pribil contend 

that some of the pivots were transferred to other entities. And 

while it is undisputed that at least some of the pivots made it to 

Mexico, Wegener and Pribil assert that none of the pivots were 

placed on Ko’ol Ag’s land.
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Dispute Arises Over Payment.

Months after the pivots were shipped, Wegener and Pribil 

sent letters to Lindsay attempting to cancel the guaranty agreements. Lindsay responded by demanding payment.

When Lindsay did not receive payment, it filed suit against 

Wegener and Pribil. Lindsay alleged that it sold IJS goods for 

the Ko’ol Ag account on credit, that IJS had defaulted in the 

amount of $1,019,795.38, and that Wegener and Pribil were 

obligated to cover the IJS debt.

Wegener and Pribil denied that they were obligated to pay 

and asserted a number of affirmative defenses including false 

representation, fraud in the inducement, failure of consideration, impairment of collateral, deprivation of the right to 

be subrogated to the benefit of all security, and violation of 

Nebraska’s Uniform Deceptive Trade Practices Act (UDTPA), 

Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014). The matter proceeded to a jury trial.

Trial.

At trial, the parties presented the evidence recounted above 

and the district court received Wegener’s and Pribil’s financial 

statements, over their relevance objections. After Wegener and 

Pribil rested their case, Lindsay moved for a directed verdict 

on Wegener and Pribil’s affirmative defenses. The district 

court granted a directed verdict to Lindsay on the affirmative defenses of failure of consideration, impairment of collateral, deprivation of the right to be subrogated to the benefit 

of all security, and the UDTPA. The district court overruled 

Lindsay’s request for a directed verdict on the defenses of false 

representation and fraud in the inducement.

As requested by Wegener and Pribil, the district court 

instructed the jury on the affirmative defense of material 

misrepresentation. Also at Wegener and Pribil’s request, it 

instructed the jury that Lindsay was entitled to recover only 

“the total amount you determine is owed and unpaid on the 

IJS indebtedness for the pivots.” But in accordance with the 

directed verdict, the district court declined to submit Wegener 
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and Pribil’s proposed instruction on the definition of fraud 

under the UDTPA.

In closing arguments, counsel for Wegener and Pribil 

argued, among other things, that the evidence showed IJS did 

not receive all of the pivots and that thus, Wegener and Pribil 

could not be liable for the full amount claimed by Lindsay. 

The jury, however, returned a unanimous verdict in favor 

of Lindsay for $1,019,795.38, the full amount owing on the 

invoices. The district court ultimately entered a judgment on 

the jury verdict.

Following the verdict, Wegener and Pribil moved for a new 

trial. They alleged irregularities in the proceedings that prevented a fair trial, excessive damages resulting from passion 

or prejudice, error in assessing the amount of recovery, insufficient evidence to support the verdict, and error of law at trial. 

The district court ultimately overruled the motion.

Wegener and Pribil now appeal. We have determined that 

Wegener and Pribil’s notice of appeal was timely filed. See 

Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 901 

N.W.2d 278 (2017).

ASSIGNMENTS OF ERROR

Wegener and Pribil assign the following errors, condensed, 

restated, and reordered: The district court erred (1) in directing 

a verdict for Lindsay on the affirmative defense of impairment of collateral, (2) in directing a verdict for Lindsay on the 

affirmative defense of failure of consideration, (3) in directing 

a verdict for Lindsay on the affirmative defense of violation of 

the UDTPA, (4) in failing to give their proposed jury instruction regarding the UDTPA, (5) in admitting evidence of their 

personal financial conditions, and (6) in failing to grant their 

motion for new trial.

STANDARD OF REVIEW

[1,2] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 

admission of the truth of all competent evidence submitted on 
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behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be deduced from the evidence. Armstrong v. Clarkson 

College, 297 Neb. 595, 901 N.W.2d 1 (2017). A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion 

from the evidence, that is, when an issue should be decided as 

a matter of law. Id.

[3,4] Whether a jury instruction is correct is a question of 

law. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 

247 (2018). When reviewing questions of law, an appellate 

court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court. Id.

[5,6] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such 

rules; judicial discretion is involved only when the rules 

make discretion a factor in determining admissibility. Id. A 

trial court has the discretion to determine the relevancy and 

admissibility of evidence, and such determinations will not 

be disturbed on appeal unless they constitute an abuse of that 

discretion. Id.

[7] A judicial abuse of discretion exists if the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition. Id.

[8] An appellate court reviews a denial of a motion for new 

trial for an abuse of discretion. Facilities Cost Mgmt. Group v. 

Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018).

ANALYSIS

Impairment of Collateral 

Affirmative Defense.

In the section of their operative answer listing affirmative defenses, Wegener and Pribil alleged that they should 

be released from liability under the “impairment of collateral 
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doctrine” and as a result of Lindsay’s acts that deprived them 

“of their right to be subrogated to the benefit of all security.” 

The district court granted Lindsay a directed verdict on these 

affirmative defenses. Wegener and Pribil contend it should not 

have done so.

As the following discussion will demonstrate, the concepts 

Wegener and Pribil asserted as separate affirmative defenses 

and argue separately on appeal are actually part and parcel 

of the same affirmative defense. For reasons we will explain, 

we find that this defense could not apply in these circumstances, and thus, the district court correctly granted Lindsay a 

directed verdict.

This court has previously recognized that a guarantor can 

be released from liability as a result of a creditor’s actions or 

omissions that impair collateral securing the principal debt at 

issue. See, e.g., Custom Leasing, Inc. v. Carlson Stapler & 

Shippers Supply, Inc., 195 Neb. 292, 237 N.W.2d 645 (1976). 

We have previously referred to the defense as “impairment of 

collateral.” Builders Supply Co. v. Czerwinski, 275 Neb. 622, 

635, 748 N.W.2d 645, 656 (2008).

The impairment of collateral defense has its roots in the 

guarantor’s subrogation right to collateral securing the underlying debt. See Custom Leasing, Inc., supra. That is, if the 

principal debtor fails to meet its obligation in such a transaction and the creditor enforces the guaranty, “a guarantor has 

the right to step into the shoes of the creditor and sue the 

debtor for collateral securing the debt.” See Century 21 Prods. 

v. Glacier Sales, 129 Wash. 2d 406, 412, 918 P.2d 168, 170 

(1996). Because acts or omissions of the creditor that result in 

the collateral’s unavailability deprive the guarantor of its right 

of subrogation, a guarantor is generally released by such acts 

or omissions. See Custom Leasing, Inc., 195 Neb. at 299, 237 

N.W.2d at 649 (“[w]hether the guarantor is entitled to a full 

discharge or only pro tanto, it is released from its liability to 

the extent of the injury caused by the willful or negligent acts 

of [the creditor]”).
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If its name were not enough, the preceding discussion 

should make clear that in order for the impairment of collateral defense to apply, the underlying debt must be secured 

by collateral. See, e.g., Myers v. Bank of Niobrara, 215 

Neb. 29, 31-32, 336 N.W.2d 608, 610 (1983) (“[i]t may be 

true that if a secured party . . . impairs a guarantor’s ability to satisfy any obligation arising under the agreement of 

guaranty by releasing the collateral securing that loan, said 

guarantor’s obligation is then released”) (emphasis supplied); 

Restatement (Third) of Suretyship and Guaranty § 42 at 190 

(1996) (recognizing that defense is available “[i]f the underlying obligation is secured by a security interest in collateral

and the obligee impairs the value of that interest”) (emphasis 

supplied). If the debt is not secured, there is no collateral 

to impair and no subrogation right to protect. See Estate 

of Muscato v. Northwest Nat’l Bk., 181 Ill. App. 3d 44, 48, 

536 N.E.2d 872, 875, 129 Ill. Dec. 822, 825 (1989) (“[i]t is 

axiomatic that because the loan was unsecured, no collateral 

could have been impaired”).

Wegener and Pribil could not successfully assert the impairment of collateral defense because it is available only when 

the guarantor has a subrogation right to collateral. There is 

no evidence that Lindsay had a security interest in the pivots, 

and Wegener and Pribil do not even attempt to argue that such 

evidence exists.

Because there is no evidence that collateral was to secure 

the underlying debt, the principal cases Wegener and Pribil 

rely upon in support of their argument that the district court 

erred by directing a verdict on their impairment of collateral 

defense are inapplicable. In those cases, a creditor either 

impaired or failed to acquire a security interest as required by 

a contract, to the ultimate detriment of the guarantor. See, e.g., 

National Bank of Commerce Trust & Sav. Assn. v. Katleman, 

201 Neb. 165, 266 N.W.2d 736 (1978); Custom Leasing, Inc., 

supra. In this case, however, the transaction did not involve 

a security interest. As a result, the impairment of collateral 
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defense could not apply and the district court correctly granted 

a directed verdict for Lindsay.

Failure of Consideration 

Affirmative Defense.

Wegener and Pribil also contend that the district court erred 

by granting Lindsay a directed verdict on their affirmative 

defense of failure of consideration. Again, we find no basis to 

reverse the district court’s decision.

Wegener and Pribil argue that there was a failure of consideration in that the pivots Lindsay agreed to sell were not transferred to the entity that purchased them. Specifically, Wegener 

and Pribil contend that because Lindsay failed to perform its 

obligations to the principal debtor, the consideration failed and 

Wegener and Pribil’s obligations under the guaranties were 

eliminated or at least diminished.

[9] Lindsay responds that there was sufficient consideration 

for the guaranties because Lindsay extended credit to IJS in 

reliance on Wegener’s and Pribil’s promises to pay if IJS did 

not. Lindsay’s response appears to confuse “failure of consideration” with the separate concept of “lack of consideration.” 

“A lack of consideration means no contract is ever formed 

because no consideration exists or none was intended to pass.” 

Federal Land Bank of Omaha v. Woods, 480 N.W.2d 61, 66 

(Iowa 1992). A failure of consideration, on the other hand, 

“means the contract is valid when formed but becomes unenforceable because the performance bargained for has not been 

given.” Id. See, also, 3 Richard A. Lord, A Treatise on the Law 

of Contracts by Samuel Williston § 7.11 (4th ed. 2008) (distinguishing these concepts).

Some courts have recognized that a guarantor can avoid 

liability on a guaranty through the affirmative defense of 

failure of consideration by showing that the creditor failed 

to render the performance for which the guarantor agreed to 

guarantee payment. See, e.g., Walcutt v. Clevite Corporation, 

13 N.Y.2d 48, 191 N.E.2d 894, 241 N.Y.S.2d 834 (1963). 
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Wegener and Pribil claim these circumstances are present 

here, and they make alternative arguments as to why that is 

the case.

First, they argue that there was a failure of consideration 

because Lindsay did not transfer the pivots to Ko’ol Ag. We 

reject this argument at the outset. Both the guaranties themselves and the invoices indicate that IJS was the debtor, not 

Ko’ol Ag. Lindsay did not have an obligation to transfer the 

pivots directly to Ko’ol Ag, and thus, Wegener and Pribil cannot premise a failure of consideration defense on any failure to 

effectuate such a transfer.

The alternative failure of consideration argument Wegener 

and Pribil assert is that the consideration failed because some 

pivots were not delivered to IJS. Because IJS was the principal 

debtor in the transaction, the claim that the consideration failed 

because IJS did not receive pivots on which Lindsay now 

seeks payment cannot be dismissed so quickly. Furthermore, 

there was some evidence introduced at trial—bills of lading 

for a few of the pivots that listed entities other than IJS as the 

recipient and testimony about at least one pivot’s having borne 

a stamp suggesting it was sold to another entity—that Wegener 

and Pribil can point to in support of their argument that IJS did 

not receive the pivots.

The evidence summarized above, coupled with the requirement that we draw all inferences in favor of Wegener and 

Pribil in reviewing the grant of a directed verdict, might 

suggest grounds for reversal if it were not for the fact that 

Wegener and Pribil already presented these very arguments 

to the jury and the jury rejected them. While the district court 

granted Lindsay a directed verdict on the failure of consideration affirmative defense, as noted above, Wegener and 

Pribil asked for and received a jury instruction that Lindsay 

was entitled to recover “the total amount you determine is 

owed and unpaid on the IJS indebtedness for the pivots.” 

Counsel for Wegener and Pribil contended that this instruction was justified by evidence suggesting some pivots were 
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not transferred to IJS and stated that the proposed instruction “goes back to [Wegener and Pribil’s] defense of failure 

of consideration.”

Not only did Wegener and Pribil convince the court that 

the jury should be instructed that they were liable only to the 

extent IJS was indebted to Lindsay; their counsel devoted 

extensive time in closing argument to the contention that some 

of the pivots were not transferred to IJS and asked the jury not 

to make Wegener and Pribil pay for pivots IJS did not even 

receive. The jury’s award of damages in favor of Lindsay for 

the full amount claimed demonstrates that it rejected this argument. Under these circumstances, we find that the award of a 

directed verdict on the failure of consideration defense was, at 

most, harmless error.

It does not appear that a Nebraska appellate court has 

previously found that the grant of a partial directed verdict 

could amount to harmless error. However, we have held that 

a summary judgment can be harmless error when viewed in 

light of a jury’s subsequent findings. In Smith v. Colorado 

Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005), 

a patient claimed, among other things, that an organ recovery 

service had acted negligently in not reviewing donor records 

and failing to inform the medical center that a certain preservative had been used. The district court granted summary 

judgment in favor of the recovery service. Upon the patient’s 

appeal, we reasoned that any error in granting summary judgment was harmless, because the jury specially found no proximate cause as to one defendant and the jury’s special finding 

on proximate cause was equally applicable to the organ recovery service.

[10] We find this reasoning in Smith instructive in the 

instant case and hold that when it follows logically from a 

jury’s findings that a theory on which a directed verdict was 

granted could not have been successful, the directed verdict 

cannot be said to have affected the outcome and is, at most, 

harmless error. A number of cases from other jurisdictions 
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have recognized and applied this principle. See, e.g., Goulet 

v. New Penn Motor Exp., Inc., 512 F.3d 34 (1st Cir. 2008); 

Earle v. Benoit, 850 F.2d 836 (1st Cir. 1988); Janich Bros., 

Inc. v. American Distilling Co., 570 F.2d 848 (9th Cir. 1977); 

St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me. 1988); 

Steffensen v. Smith’s Management Corp., 820 P.2d 482 (Utah 

App. 1991). See, also, Russell v. May, 306 Kan. 1058, 400 P.3d 

647 (2017) (employing same analysis as cases above but finding error not harmless in that case).

In this case, we find that the jury’s verdict would not have 

differed if a directed verdict had not been granted on the failure of consideration affirmative defense. By instructing the 

jury that Wegener and Pribil were liable only to the extent IJS 

was indebted to Lindsay, the district court required the jury 

to consider the very issue raised by the failure of consideration defense—whether IJS received the pivots and was thus 

indebted to Lindsay. If anything, the district court relieved 

Wegener and Pribil of the burden of proving their failure of 

consideration defense by embedding it within the amount 

Lindsay was owed, an issue on which Lindsay bore the burden 

of proof. Even after Wegener and Pribil argued that IJS did not 

receive all the pivots, however, the jury awarded Lindsay the 

full amount Lindsay claimed.

The jury clearly rejected the notion that IJS did not receive 

the pivots and was thus indebted to Lindsay for less than the 

full amount claimed. In doing so, the jury rejected the substance of the failure of consideration defense. The failure of 

consideration affirmative defense would not have succeeded 

even if the directed verdict had not been granted. The directed 

verdict is thus, at most, harmless rather than reversible error.

Uniform Deceptive Trade 

Practices Act.

We now turn to Wegener and Pribil’s claim that the district 

court erred by finding that a particular section of Nebraska’s 

UDTPA was not a valid defense to Lindsay’s claim. They 
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argue that Lindsay violated the UDTPA by fraudulently 

inducing them to sign the guaranty agreements through misleading representations about IJS. We find that the district 

court did not err by granting Lindsay a directed verdict on 

this issue.

Wegener and Pribil sought to implement the defense set 

forth in § 87-303.07:

If a buyer or lessee is induced by [a deceptive trade 

practice] to enter into a sale or lease, the agreement is 

unenforceable by the seller or lessor and the buyer or 

lessee, at his or her option, may rescind the agreement 

or retain the merchandise delivered and the benefit of 

any services performed without any obligation to pay 

for them.

As the district court pointed out, this section protects a 

“buyer” or a “lessee.” A familiar canon of statutory construction—expressio unius est exclusio alterius—suggests that 

§ 87-303.07 does not protect guarantors. The aforementioned 

canon recognizes that “an expressed object of a statute’s operation excludes the statute’s operation on all other objects 

unmentioned by the statute.” Jacobson v. Shresta, 288 Neb. 

615, 623, 849 N.W.2d 515, 521 (2014). Applying the principle 

here, the fact that § 87-303.07 specifically lists buyers and 

lessees as those protected leads us to conclude that other categories of individuals—such as guarantors like Wegener and 

Pribil—are not.

After determining that § 87-303.07 protected only buyers 

and lessees, the district court went on to discuss our opinion 

in Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829 

N.W.2d 676 (2013). In that case, we held that certain defenses 

are personal to the principal debtor and thus a guarantor cannot escape liability by proving that the principal debtor is not 

liable pursuant to such a personal defense. The district court 

concluded that § 87-303.07 is such a personal defense and that 

thus, Wegener and Pribil, as guarantors, could not use it to 

avoid liability.
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Whatever they may have been arguing before the district 

court, however, Wegener and Pribil do not make any argument to us that the buyer was deceived by Lindsay. Both the 

guaranties and the invoices make clear that the buyer of the 

pivots was IJS. But Wegener and Pribil argue that they—

guarantors—were deceived by Lindsay. For reasons set forth 

above, we have determined that § 87-303.07 offers no protection to guarantors who claim to have been deceived. And since 

Wegener and Pribil make no argument to us that the buyer 

was deceived, it is not necessary for us to review whether 

§ 87-303.07 is a personal defense that can be raised only by 

the principal debtor.

Wegener and Pribil contend that they should have been permitted to proceed under § 87-303.07 notwithstanding the limited language of the statute because a guarantor has a defense 

if fraudulently induced to enter into a guaranty. The only case 

they cite in support of this argument, however, is a case in 

which the guarantor asserted a general fraud in the inducement defense. See West v. Wegner, 172 Neb. 692, 111 N.W.2d 

449 (1961). Here, Wegener and Pribil’s allegations that they 

were induced into signing the guaranties by misrepresentations 

of Lindsay were submitted to the jury for consideration and 

rejected. In any event, the case Wegener and Pribil cite does 

not support the notion that they were also entitled to present an 

affirmative defense under § 87-303.07. We conclude that the 

district court did not err in determining that a defense pursuant 

to § 87-303.07 did not apply and in granting Lindsay’s motion 

for directed verdict on that defense.

Because the evidence did not support the application of 

§ 87-303.07, we also find that the district court did not err in 

rejecting the jury instructions tendered by Wegener and Pribil 

concerning the UDTPA. To establish reversible error from a 

court’s failure to give a requested jury instruction, an appellant 

has the burden to show, among other things, that the tendered 

instruction was warranted by the evidence. See Rodriguez v. 

Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).
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Admission of Financial Statements.

Over Wegener and Pribil’s objections based on relevance, 

the district court received financial statements showing their 

net worth. Wegener and Pribil claim that the district court committed reversible error by admitting this evidence, because it 

was not relevant to proving liability and was offered to prejudice the jury against them and produce a higher award.

In their brief, Wegener and Pribil argue that evidence of 

a defendant’s financial condition is not relevant. They also 

argue that admission of such evidence is prejudicial. At trial, 

however, Wegener and Pribil objected to the admission of their 

financial statements only on relevance grounds. Since a party 

may not assert a different ground for an objection to the admission of evidence than was offered to the trial court, see Werner 

v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012), our 

review is limited to determining whether the financial statements were relevant.

[11-13] Evidence that is irrelevant is inadmissible. Neb. 

Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016); 

Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 

235 (2010). Evidence is relevant if it has “any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable 

than it would be without the evidence.” Neb. Evid. R. 401, 

Neb. Rev. Stat. § 27-401 (Reissue 2016). The bar for establishing evidentiary relevance is not a high one. Relevancy requires 

only that the probative value be “something more than nothing.” State v. Lavalleur, 289 Neb. 102, 115, 853 N.W.2d 203, 

214 (2014).

Wegener and Pribil argue that it has long been the law 

in Nebraska that evidence of financial standing of the parties is inadmissible. However, our jurisprudence does not 

completely bar evidence of financial standing. Rather, the 

relevance of such evidence is generally assessed on a caseby-case basis. See, e.g., Vacek v. Ames, 221 Neb. 333, 377 

N.W.2d 86 (1985).
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As Lindsay points out, the fact that Lindsay received 

financial statements of Wegener and Pribil and relied upon 

them in deciding to extend credit to IJS would be helpful to 

educate the jury on the background of the transaction. But 

Wegener and Pribil’s real objection to the financial statements 

is not that the jury learned that they existed and that Lindsay 

received them; it is that the financial statements show their 

net worth.

Lindsay has relatively little to say about how Wegener’s 

and Pribil’s net worth was relevant to the issues in the case. 

That said, Wegener and Pribil did not ask that evidence of 

their net worth be redacted from the financial statements, and, 

furthermore, we can identify at least one way in which their 

net worth clears the relatively low relevance threshold. One of 

the issues the jury considered was whether Lindsay induced 

Wegener and Pribil to enter into the guaranties through misrepresentations. An element of this defense is that the representations of Lindsay’s agents substantially contributed to 

the decision to guarantee IJS. Evidence of Wegener’s and 

Pribil’s relatively significant net worth might tend to rebut 

any notion that they were unsophisticated individuals who 

were susceptible to being swayed by the representations of 

Lindsay’s agents.

Evidence of the guarantors’ net worth may not have been 

highly probative on this issue, and Wegener and Pribil may 

have had a colorable argument that the potential for prejudice 

exceeded the probative value. Even so, we cannot say that the 

evidence lacked any probative value. Consequently, we cannot 

find that the district court abused its discretion in admitting 

the financial statements.

Motion for New Trial.

Finally, Wegener and Pribil argue that the trial court erred 

in failing to grant their motion for new trial based on the 

directed verdict and the admission of financial statements. An 

appellate court reviews a denial of a motion for new trial for 
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an abuse of discretion. Facilities Cost Mgmt. Group v. Otoe 

Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018). Having 

concluded that the district court did not err in directing a 

verdict as to Wegener and Pribil’s affirmative defenses and 

in admitting evidence of their finances, we find no abuse of 

discretion in its denial of their motion for new trial.

CONCLUSION

For the foregoing reasons, we find no basis to reverse the 

district court’s decision and therefore affirm.

Affirm

Miller-Lerman, J., not participat