First National Bank North Platte, a national banking association, appellee,
jose a. cardenas and Christina Cardenas, husband and wife, and Joya de Andalucia Farms, LLC, a Nebraska LIMITED LIABILITY COMPANY, APPELLANTS.
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.
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.
___. 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
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.
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.
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.
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.
___. 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.
Statutes: Intent. When interpreting a
statute, the starting point and focus of the inquiry is the
meaning of the statutory language, understood in context.
___: ___.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.
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.
from the District Court for Lincoln County: Donald E.
T. Deaver and Taylor A. L'Heureux, of DeWald Deaver, PC,
L.L.O., for appellants.
W. Pederson and Matthew D. Pederson, of Pederson &
Troshynski, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.
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.
to North Platte
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.
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
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. The details of
these notes and deeds of trust will be expanded later in this
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.
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.
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.
FNBNP Trustee's Sales
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.
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.
September 2013, FNBNP sold the barn tract and the pasture
tract. The bank purchased the property at auction for $100,
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.
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.
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
ASSIGNMENTS OF ERROR
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,  (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."
STANDARD OF REVIEW
appellate court will set aside a jury verdict because of
insufficient evidence only if the verdict is clearly
wrong.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. A jury verdict
will be upheld if there is competent evidence presented to
the jury upon which it could reasonably find for the
a jury instruction is correct is a question of law. which an
appellate court independently decides.
Sufficiency of Evidence to
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.
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
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.
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
(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, " that issue is not
properly before us. Thus, we review only the sufficiency ...