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First National Bank North Platte v. Cardenas

Supreme Court of Nebraska

March 30, 2018

First National Bank North Platte, a national banking association, appellee,
v.
jose a. cardenas and Christina Cardenas, husband and wife, and Joya de Andalucia Farms, LLC, a Nebraska LIMITED LIABILITY COMPANY, APPELLANTS.

         1. Verdicts: Juries: Appeal and Error. An appellate court will set aside a jury verdict because of insufficient evidence only if the verdict is clearly wrong.

         2. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence.

         3. ___: ___. A jury verdict will be upheld if there is competent evidence presented to the jury upon which it could reasonably find for the successful party. 4. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, which an appellate court independently decides.

         5. Motions for New Trial: Damages: Appeal and Error. Pursuant to Neb. Rev. Stat. § 25-1912.02(2) (Reissue 2016), when an action has been tried before a jury, a motion for a new trial shall be a prerequisite to obtaining appellate review of the issue of inadequate or excessive damages.

         6. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have the jury instructed upon only those theories of the case which are presented by the pleadings and which are supported by competent evidence.

         7. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's failure to give a requested jury instruction, an [299 Neb. 498] appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction.

         8. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse a requested instruction if the substance of the proposed instruction is contained in those instructions actually given.

         9. ___: ___. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

         10. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context.

         11. ___: ___.A court ascertains the meaning of a statute by reading it in pari materia, in light of the broader structure of the relevant act and related statutes.

         12. Juries: Verdicts: Presumptions. Because a general verdict does not specify the basis for an award, Nebraska law presumes that the winning party prevailed on all issues presented to the jury.

          Appeal from the District Court for Lincoln County: Donald E. Rowlands, Judge.

          Luke T. Deaver and Taylor A. L'Heureux, of DeWald Deaver, PC, L.L.O., for appellants.

          David W. Pederson and Matthew D. Pederson, of Pederson & Troshynski, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.

          Cassel, J.

         I. INTRODUCTION

         After a bank lender exercised powers of sale under deeds of trust, it sought to recover a deficiency owed by the borrowers. The borrowers appeal from a jury verdict in favor of the bank. Because the borrowers failed to move for a new trial, we cannot review their assertion that excessive damages were awarded, but we examine and reject their argument that the [299 Neb. 499] evidence was insufficient to support the jury's verdict. We also find no error in the trial court's refusal to give the borrowers' requested jury instructions. Accordingly, we affirm.

         II. BACKGROUND

         1. Move to North Platte

         In 2006, Jose A. Cardenas and Christina Cardenas moved to North Platte, Nebraska, where Jose began working as a neurologist. Jose and Christina purchased 127 acres of land on which to build a house. They obtained a loan from First National Bank North Platte (FNBNP) for the purchase of the land. The 127 acres were ultimately divided into three parcels: a 57-acre tract (the pasture tract), a 20-acre tract (the house tract), and a 50-acre tract (the barn tract). After purchasing the land, Jose and Christina obtained a loan from FNBNP for the construction of their house.

         Christina purchased two Andalusian horses. She planned to provide horse riding and polo lessons and to operate a horse breeding business. Jose and Christina formed a Nebraska limited liability company to conduct their horse business (the LLC). Christina was the sole member of the LLC. Jose, Christina, and the LLC (collectively the Cardenases) constructed on their property a barn, indoor stable, and horse breeding area, financed by FNBNP. The Cardenases also financed the purchase of Andalusian breeding stallions and a horse trailer.

         The Cardenases obtained multiple loans from FNBNP, which were refinanced multiple times. These promissory notes were secured by a variety of collateral, including their real property through several deeds of trust.[1] The details of these notes and deeds of trust will be expanded later in this opinion.

         2. Move to Kentucky

         The LLC never became profitable. The Cardenases' tax returns showed a loss from the LLC of over $100, 000 most [299 Neb. 500] years. Jose's annual income as a neurologist increased to over $400, 000.

         In 2012, Jose and Christina moved from Nebraska to Kentucky. They decided that the climate in Nebraska was not conducive to the Andalusian breed of horses and that the LLC was unlikely to be successful in Nebraska. Jose was able to obtain employment as a neurologist in Kentucky.

         The Cardenases listed for sale all of their real property- the house tract, the barn tract, and the pasture tract-for $855, 000. After receiving no written offers, they relisted the house tract and the barn tract (not including the pasture tract) for $774, 000. The Cardenases received only one offer for the property at $300, 000, which they did not accept.

         3. FNBNP Trustee's Sales

         In February 2013, the president of FNBNP demanded that the Cardenases pay their loans in full within 10 days due to their failure to make installment payments. As a statutory prerequisite to exercising its power of sale under the trust deeds that secured the Cardenases' real property, FNBNP sent them a notice of default in March. This first notice of default pertained to the trust deeds securing the house tract. It provided the Cardenases 1 month to cure the default by repaying their debt in full. In May, FNBNP sent a second notice of default to the Cardenases with regard to the trust deeds securing the barn tract and the pasture tract, giving them 2 months to cure the default.

         In May 2013, FNBNP exercised its power of sale as trustee under the trust deed and sold the house tract at auction. The bank bid $380, 000 and was the only bidder. The bank issued itself a trustee's deed from the sale.

         In September 2013, FNBNP sold the barn tract and the pasture tract. The bank purchased the property at auction for $100, 000.

         4. Litigation Ensues

         In April 2013, FNBNP filed a replevin action in Kentucky to recover horses and other personal property collateral that [299 Neb. 501] had been moved to Kentucky. In August, the Kentucky court granted FNBNP's motion for summary judgment, based on three of the loans from FNBNP to the Cardenases, in the amount of $476, 612.02.

         In July 2013, following the trustee's sale of the house tract, FNBNP filed a deficiency action against the Cardenases in the district court for Lincoln County, Nebraska. In September, after the remaining property was sold separately by trustee's sale, FNBNP filed a second deficiency action. The two cases were consolidated prior to trial.

         The consolidated cases were tried to a jury. The jury returned a verdict for FNBNP in the amount of $171, 162.66-the amount it had requested. The district court entered judgment in accordance with the jury verdict. The Cardenases did not file a motion for new trial, but they filed a timely appeal from the judgment.

         III. ASSIGNMENTS OF ERROR

         The Cardenases assign that the district court erred by (1) "awarding an excessive verdict for [FNBNP] that was unsupported by the evidence" and (2) refusing their requested jury instructions on (a) FNBNP's duty to comply with the Farm Mediation Act, [2] (b) FNBNP's failure to comply with § 76-1012 and the terms under the deed of trust by denying the Cardenases their right to cure the defaults, and (c) whether FNBNP "bid the fair market value of each of the properties at both of the foreclosure sales as required under ... § 76-1013."

         IV. STANDARD OF REVIEW

         An appellate court will set aside a jury verdict because of insufficient evidence only if the verdict is clearly wrong.[3]In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence [299 Neb. 502] most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence.[4] A jury verdict will be upheld if there is competent evidence presented to the jury upon which it could reasonably find for the successful party.[5]

         Whether a jury instruction is correct is a question of law. which an appellate court independently decides.[6]

         V. ANALYSIS

         1. Sufficiency of Evidence to

         Support Amount of Damages The Cardenases assign that the district court "erred in awarding an excessive verdict for [FNBNP] that was unsupported by the evidence." They argue that FNBNP's calculation of the amount they still owed was inaccurate because it failed to offset the second trustee's sale in the amount of $100, 000. However, the Cardenases' failure to file a motion for new trial precludes review for excessive damages and limits our examination to the sufficiency of the evidence. As we explain below, the evidence was sufficient.

         (a) Additional Facts

         At trial, FNBNP introduced into evidence the five different notes signed by the Cardenases on which it based its claims. It presented multiple bank records showing amounts still owing. Jose admitted that they could not keep up with payments and did not make any payments after February 2013. FNBNP presented the testimony of multiple bank employees who stated that the amount due and owing after the trustee's sales, calculated with interest as of the time of trial, was $171, 162.66.

         [299 Neb. 503] After the jury returned a verdict in favor of FNBNP, the court entered judgment accordingly. The Cardenases did not move for a new trial.

         (b) Application

Neb. Rev. Stat. § 25-1912.01(2) (Reissue 2016) provides: When an action has been tried before a jury a motion for a new trial shall not be a prerequisite to obtaining appellate review of the sufficiency of the evidence, but a motion for a new trial shall be a prerequisite to obtaining appellate review of the issue of inadequate or excessive damages.

(Emphasis supplied.) The Cardenases' first assignment of error melds a claim of insufficient evidence with one that damages were excessive. Because "a motion for a new trial [is] a prerequisite to obtaining appellate review of the issue of . . . excessive damages, "[7] that issue is not properly before us. Thus, we review only the sufficiency ...


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