Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
__: __. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
Contracts: Judgments: Appeal and Error. The meaning
of a contract is a question of law, in connection with which
an appellate court has an obligation to reach its conclusions
independently of the determinations made by the court below.
Actions: Parties: Judgments: Appeal and Error. Neb.
Rev. Stat. § 25-1315(1) (Reissue 2008) requires, in
cases with multiple claims or parties, an explicit
adjudication with respect to all claims or parties or,
failing such explicit adjudication of all claims or parties,
an express determination that there is no just reason for
delay of an appeal of an order disposing of less than all
claims or parties and an express direction for the entry of
judgment as to those adjudicated claims or parties.
Neb. 944] 5. Summary Judgment:
Proof. A party moving for summary judgment must make
a prima facie case by producing evidence to demonstrate that
the movant is entitled to judgment if the evidence were
uncontroverted at trial.
__: __. Once the moving party makes a prima facie case, the
burden to produce evidence showing the existence of a
material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion.
Contracts: Guaranty: Debtors and Creditors: Words and
Phrases. A guaranty is a contract by which the
guarantor promises to make payment if the principal debtor
Contracts: Guaranty. A guaranty is interpreted using
the same general rules as are used for other contracts.
Contracts: Guaranty: Appeal and Error. To determine
the obligations of the guarantor, an appellate court relies
on general principles of contract and guaranty law.
Guaranty: Liability. When the meaning of a guaranty
is ascertained, or its terms are clearly defined, the
liability of the guarantor is controlled absolutely by such
meaning and limited to the precise terms.
Actions: Contracts: Guaranty. A suit on a
contractual guaranty presents an action at law.
Actions: Parties. The purpose of Neb. Rev. Stat.
§ 25-301 (Reissue 2008) is to prevent the prosecution of
actions by persons who have no right, title, or interest in
Actions: Parties: Standing. The focus of the real
party in interest inquiry is whether the party has standing
to sue due to some real interest in the cause of action, or a
legal or equitable right, title, or interest in the subject
matter of the controversy.
__: __: __. The purpose of the real party in interest inquiry
is to determine whether the party has a legally protectable
interest or right in the controversy that would benefit by
the relief to be granted.
Declaratory Judgments. In Nebraska, a party may not
simply move the court for a declaratory judgment.
Right to Counsel: Effectiveness of Counsel. A
self-represented litigant will receive the same consideration
as if he or she had been represented by an attorney, and,
concurrently, that litigant is held to the same standards as
one who is represented by counsel.
Judgments: Garnishment: Jurisdiction. A garnishment
in aid of execution issued before judgment is without
jurisdiction and void, and not merely irregular.
Judgments: Debtors and Creditors. An execution
issued without a judgment to support it is void.
Neb. 945] 19. Jurisdiction: Appeal
and Error. Before reaching the legal issues
presented for review, it is the power and duty of an
appellate court to determine whether it has jurisdiction over
the matter before it, irrespective of whether the issue is
raised by the parties.
Jurisdiction: Final Orders: Appeal and Error. For an
appellate court to acquire jurisdiction over an appeal, there
must be a final order or final judgment entered by the court
from which the appeal is taken.
Final Orders: Appeal and Error. There are three
types of final orders that may be reviewed on appeal under
the provisions of Neb. Rev. Stat. § 25-1902 (Reissue
2008): (1) an order which affects a substantial right in an
action and which in effect determines the action and prevents
a judgment, (2) an order affecting a substantial right made
during a special proceeding, and (3) an order affecting a
substantial right made on summary application in an action
after judgment is rendered.
Final Orders: Words and Phrases. A substantial right
under Neb. Rev. Stat. § 25-1902 (Reissue 2008) is an
essential legal right.
Final Orders: Appeal and Error. A substantial right
is affected if an order affects the subject matter of the
litigation, such as diminishing a claim or defense that was
available to an appellant before the order form which an
appeal is taken.
Final Orders. Substantial rights under Neb. Rev.
Stat. § 25-1902 (Reissue 2008) include those legal
rights that a party is entitled to enforce or defend.
Summary Judgment: Claims: Garnishment. An
interlocutory order granting summary judgment on fewer than
all of the claims in an action cannot serve as the judgment
required for an execution or garnishment in aid of execution.
Final Orders. Since Neb. Rev. Stat. 25-1315(1)
(Reissue 2008) is substantially similar to Fed.R.Civ.P.
54(b), federal cases construing rule 54(b) may be used for
guidance in determining when a decision is a "final
judgment" for purposes of § 25-1315(1).
Appeal and Error. Appellate courts do not generally
consider arguments and theories raised for the first time on
Judgments: Collateral Attack. A void order may be
attacked at any time in any proceeding.
from the District Court for Lancaster County: Andrew R.
Watson and Rebecca Watson, pro se, in Nos. S-15-512 and
Neb. 946] John M. Guthery, of Perry, Guthery, Haase &
Gessford, PC, L.L.O., for appellee The Cattle National Bank
& Trust Co., in Nos. S-15-512 and S-15-872.
Watson, pro se, in No. S-15-872.
J. Knight, of Perry, Guthery, Haase & Gessford, PC,
L.L.O., and Michael C. Cox, of Koley Jessen, PC, L.L.O., for
appellee The Cattle National Bank & Trust Co., in No.
Heavican, C.J., Wright, Connolly, Cassel, and Kelch, JJ.
bank's action against four guarantors on their respective
personal guaranties of an entity's debts has generated
three appeals by various guarantors. The first appeal was
taken after the district court granted the bank's motions
for summary judgment but failed to adjudicate a cross-claim.
The second appeal was taken from execution and garnishment
proceedings that occurred while the first appeal was pending.
Because of the undisposed cross-claim, the Nebraska Court of
Appeals dismissed the first appeal. One guarantor then moved
to vacate the summary judgment order. The district court
denied the motion and simultaneously dismissed the pending
cross-claim. The third appeal followed. We consider it first.
third appeal raises three issues. First, were the guarantors
bound by the second page of the document? They were, because
the first page incorporated the second page and defined
"Undersigned" to include them. Second, can a
guarantor assert defenses arising from the entity's
underlying debt? For various reasons, he cannot. Finally, did
the district court err in failing to vacate the summary
judgment order? Because the guarantor conflated the
order's initial lack of finality with its validity, the
court correctly overruled the motion. In the third appeal, we
affirm the district court's judgment.
Neb. 947] In the second appeal, the guarantors now argue a
new ground-that the execution and garnishment proceedings
were void because they were commenced prior to judgment.
Although the interlocutory order granting summary judgment
motions was not void, it was not a "judgment"
sufficient to support execution or garnishment in aid of
execution. The interlocutory order ultimately became part of
a judgment. But this did not validate the void process. We
therefore vacate the void execution and garnishments.
action proceeded against four members of the Watson
family-Robert Watson, Shona Watson, Bill Watson, and Rebecca
Watson (collectively the Watsons). Robert, Shona, and Rebecca
were members of Reserve Design, LLC (Reserve), a construction
business. In 2007, the Watsons signed identical personal
guaranties for the debts that Reserve owed to The Cattle
National Bank & Trust Co. (Bank). The guaranties
expressly included Reserve's future indebtedness.
the guaranties consisted of a single sheet of paper with
print on both sides. The pages were labeled "page 1 of
2" and "page 2 of 2." The Watsons'
signatures appear at the bottom of page 1, and there is no
dispute that they signed page 1. Although page 2 included
what appear to be lines for initials, none of the Watsons
initialed or otherwise signed page 2.
provisions on page 1 are relevant. First, a definition
stated: "'Undersigned' shall refer to all
persons who sign this guaranty, severally and jointly."
This definition appeared immediately below the last signature
line and within its width. The term "Undersigned, "
appearing in the same initially capitalized form, was used
throughout the document. Second, a provision on the first
[T]he Undersigned guarantees to [the Bank] the payment and
performance of each and every debt, liability and obligation
of every type and description which [Reserve] [293 Neb. 948]
may now or at any time hereafter owe to [the Bank] (whether
such debt, liability or obligation now exists or is hereafter
created or incurred[)].
the first page provided that the liability of "the
Undersigned" was "UNLIMITED." Finally, page 1
stated, in bold type: "This guaranty includes the
additional provisions on page 2, all of which are made a part
consisted of eight additional provisions. One pertained to
the waiver of defenses. It stated, in relevant part:
The Undersigned waives any and all defenses, claims and
discharges of [Reserve], or any other obligor, pertaining to
Indebtedness, except the defense of discharge by payment in
full. Without limiting the generality of the foregoing, the
Undersigned will not assert, plead or enforce against [the
Bank] any defense of . . . fraud . . . which may be available
to [Reserve] or any other person liable in respect of any
provided that the Bank could "enter into transactions
resulting in the creation or continuance of Indebtedness,
without any consent or approval by the Undersigned and
without any notice to the Undersigned."
2010, 3 years after the guaranties had been given to the
Bank, the Bank loaned Reserve $40, 000 (loan). Robert signed
a loan agreement on behalf of Reserve as "Rob Watson,
Manager." And he extended the loan's maturity date
on three later occasions, signing each extension as "Rob
Watson, Manager." Robert claims that the Bank's loan
officer promised him that if he signed the loan on behalf of
Reserve, the officer would later rewrite it as a third
mortgage for Robert's personal residence. The loan was
never rewritten as Robert's personal obligation.
2012, Reserve failed to make a required payment on the loan,
and the Bank declared default and demanded payment from the
Watsons on the guaranties. The Watsons refused to [293 Neb.
949] pay. The Bank filed a complaint for breach of guaranty,
naming the Watsons as defendants.
amended answer included a counterclaim for fraud in the
inducement. He claimed that he was fraudulently induced to
sign the loan in his capacity as manager of Reserve. He also
claimed that he was not bound by the terms on page 2 of the
guaranty, because he did not "undersign" it. Bill
and Rebecca's answer asserted numerous defenses, but it
did not assert the absence of signatures or initials on page
2. Shona's answer included a cross-claim against Robert.
and the Bank each filed motions for summary judgment as to
the breach of guaranty claims and Robert's counterclaim.
One of Robert's motions included a motion "for
Declaratory Judgment on contractual effect of Personal
district court sustained the Bank's motions and overruled
Robert's motions in an October 17, 2014, order
(hereinafter summary judgment order). Regarding the
Bank's claims for breach of guaranty, it observed that
there was no dispute that the Watsons all signed the
guaranties for the debt of Reserve. And it noted that the
guaranties provided that the Bank could enter transactions
resulting in the creation or continuance of indebtedness
without the Watsons' notice or approval.
Robert's counterclaim for fraud in the inducement, the
court first concluded that Robert was not a real party in
interest, because Reserve and the Bank were the only two
parties to the loan agreement. Therefore, because Reserve was
not a party to the action, Robert could not raise a claim for
fraud on its behalf. Second, it concluded that even if
Reserve was a party to the action, the defense of fraud in
the inducement was not available to the Watsons, because it
was waived under the terms on page 2. Finally, the court
concluded that Robert's motion for a declaratory judgment
was improper, because the request was not made in the
Neb. 950] The court entered "judgment" for the Bank
"against the [Watsons] jointly and severally in the
amount of $30, 000 plus interest of $1, 839.45." The
summary judgment order did not address Shona's
cross-claim against Robert, and it did not direct the entry
of final judgment pursuant to Neb. Rev. Stat. § 25-1315
Bill, and Rebecca filed the first appeal. It was docketed in
the Court of Appeals as case No. A-14-1028.
Execution and Garnishment
the first appeal was pending, the Bank apparently filed
requests for writs of execution and garnishment, but its
requests are not in our record. The district court appears to
have issued the requested writs, but they, too, are not in
our record. In response, Robert and Bill filed objections to
garnishment and Bill and Rebecca filed an objection to
execution. These filings are also not in our record.
court overruled the objections in two June 8, 2015, orders,
which are in our record. One concluded that the Bank could
proceed with the garnishments, because Robert and Bill failed
to show that they did not owe the debts in question. And the
other concluded that the Bank could proceed with the
execution, because Bill and Rebecca made no showing that
their property was exempt. According to the bill of
exceptions, there was no discussion at the hearing regarding
whether the summary judgment order was appealable or whether
it was a "judgment" sufficient to support a writ of
execution or garnishment.
and Rebecca quickly filed the second appeal. It is docketed
in this court as case No. S-15-512. Although the parties
argue that an execution sale of a vehicle owned by Bill and
Rebecca took place after June 8, 2015, neither the writ of
execution nor any return of the writ is included in our
extent shown in our record, the events that followed are
[293 Neb. 951] • July 8, 2015: Court of Appeals
dismissed the first appeal, concluding that the summary
judgment order was not final and appealable, because
Shona's cross-claim against Robert was still pending.
• July 17, 2015: Robert filed motion in district court
to vacate the summary judgment order.
•August 25, 2015: District court dismissed Shona's
cross-claim and overruled Robert's motion to vacate.
• September 17, 2015: Robert filed notice of the third
appeal, which was taken from the summary judgment order and
the order overruling his motion to vacate. The third appeal
is docketed in this court as case No. S-15-872.
• September 18, 2015: Bill and Rebecca filed a notice of
appeal from the summary judgment order. Our clerk treated
this as a second notice of appeal in the third appeal.
moved the second and third appeals to our docket,
we consolidated them for argument and disposition.
ASSIGNMENTS OF ERROR
Second Appeal (No. S-15-512)
and Rebecca assign that the district court erred by
"[i]ssuing an order to execute and garnish on the
statutorily deficient" summary judgment order.
Third Appeal (No. S-15-872)
assigns, restated and consolidated, that the district court
erred in (1) finding that there was no genuine issue of
material fact regarding whether he is bound by the terms on
page 2, (2) failing to consider his defense of fraud, (3)
failing to find that the Bank has unclean hands, (4) finding
that he was not a real party in interest in his counterclaim,
(5) failing to consider his request for a declaratory
judgment, and (6) failing to vacate the summary judgment
order after ...