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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 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 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 application 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.

Nebraska Supreme Court Online Library

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

04/23/2020 09:09 AM CDT
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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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 preponderance 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 interdependent 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 admission is a formal act done in the course of judicial proceedings which is 

a substitute for evidence, 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.

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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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 judicial 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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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 manufacturing 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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 transferred 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 indispensable party; that the court erred in failing to make Vind a 

party to the action before rendering a decision; and that without 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 publication, which Midwest Renewable completed. Vind filed an 

answer, and Midwest Renewable served Vind with discovery 

requests. We have no further information in our record regarding 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

Cite as 305 Neb. 1

In June 2017, in the present registration and enforcement 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 judgment 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 assignment 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 successor 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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 appellee. We moved the appeal to our docket pursuant to our statutory 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 executed, (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 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.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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issue is whether we have appellate jurisdiction over Midwest 

Renewable’s appeal.

[3] In Nebraska, for an appellate court to acquire jurisdiction 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. 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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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 execution 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 execution 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 execution 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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 substantial 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 jurisdiction 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 interest, 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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(a) Midwest Renewable Has Standing

Vind argues that Midwest Renewable lacks standing to challenge 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 defective 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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claims on appeal, we applied the principle followed by a majority 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 indicated 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 traceable 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 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.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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matter which renders the assignment absolutely invalid, ineffective, 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 standing, 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 interest 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 challenging 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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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 standard.41 But aside from any factual findings, the trial court’s ruling 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 initial 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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judgment for attorney fees.47 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.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 standing 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 acknowledgment 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

Cite as 305 Neb. 1

[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 assignment to Vind.

[14,15] Neb. Rev. Stat. § 27-201(2)(b) (Reissue 2016) provides 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 cannot 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 indicated 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 transferred 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 evidence, 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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, deliberately, 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 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.62

Fundamentally, the intent behind the doctrine of judicial 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.63 This doctrine, 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

Cite as 305 Neb. 1

impinging on the truth-seeking function of the court, because 

the doctrine precludes a contradictory position without examining 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 matter 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 further 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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WESTERN ETHANOL CO. v. MIDWEST RENEWABLE ENERGY

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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 declaring 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 corroborate 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 sufficient 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 contrary 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 jurisdictional 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 consideration of the court’s authority to add a party to a proceeding 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).