Foundation One Bank, a banking corporation. APPELLANT,
JASON SVOBODA, AN INDIVIDUAL, ET AL., APPELLEES, AND LEHR, INC., INTERVENOR-APPELLEE.
Judgments: Pleadings. A motion for judgment
on the pleadings is properly granted when it appears from the
pleadings that only questions of law are presented.
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's failure to
give a requested jury instruction, an 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
Jury Instructions: Appeal and Error. Where
jury instructions are claimed deficient on appeal and such
issue was not raised at trial, an appellate court reviews for
Appeal and Error: Words and Phrases. Plain
error exists where there is an error, plainly evident from
the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and
is of such a nature that to leave it uncorrected would cause
a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
Directed Verdict: Appeal and Error. 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.
Rules of the Supreme Court: Pleadings: Moot
Question. A denial of a motion for judgment on the
pleadings under Neb. Ct. R. Pldg. § 6-1112(c) is
generally moot on appeal after the case has been tried on the
Neb. 625] 7. Fraud: Proof. A proper
fraudulent misrepresentation claim requires a party to prove
that (1) a representation was made; (2) the representation
was false; (3) when made, the representation was known to be
false or made recklessly without knowledge of its truth and
as a positive assertion; (4) the representation was made with
the intention that the plaintiff should rely on it; (5) the
plaintiff did so rely on it; and (6) the plaintiff suffered
damage as a result.
Directed Verdict. In a motion for directed
verdict, the moving party admits the truth of all
well-pleaded facts, together with all reasonable inferences
to be drawn therefrom.
Replevin: Damages. In a replevin case, when
a defendant or intervener is found to have ownership and
right of possession of property, the replevin statutes
necessarily place the issue of damages at issue.
from the District Court for Platte County: Robert R. Steinke,
F. Smeall and Jacob A. Acers, of Smith, Slusky, Pohren &
Rogers, L.L.P., for appellant.
J. Brislen, Eric W. Tiritilli, and Karson S. Kampfe, of
Lamson, Dugan & Murray, L.L.P, for intervenor-appellee.
appearance for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
plaintiff, Foundation One Bank (Foundation One), appeals from
the judgment entered by the district court for Platte County
upon the verdict of the jury in favor of
defendant-intervenor, Lehr, Inc. Foundation One sought
replevin of two motor vehicles pledged by Jason Svoboda as
collateral to secure payment of a loan. Lehr intervened in
the case and sought possession of the motor vehicles. The
jury determined that Lehr was entitled to possession of two
disputed motor vehicles, and because Foundation One had [303
Neb. 626] sold one of the vehicles for $95, 000, the jury
awarded Lehr $95, 000. Foundation One claims that the
district court erred in several respects in connection with
its jury instructions and when it denied Foundation One's
motions for judgment on the pleadings and for a directed
verdict. We affirm and, in so doing, reiterate that in a
replevin case, a defendant or intervener's general denial
and assertion of ownership necessarily place the questions of
possession, ownership, and damages before the jury under Neb.
Rev. Stat. § 25-1093 et seq. (Reissue 2016).
STATEMENT OF FACTS
2016, Svoboda sought a commercial loan from Foundation One
for his struggling automobile business. Svoboda had been in
the automobile business before, operating as RPM Motors,
Inc., an entity which had become an inactive Nebraska
corporation. Svoboda claimed he needed a loan to consolidate
debt from that business. On March 25, 2016, Svoboda and
Foundation One executed a promissory note and commercial
security agreement for a $200, 000 loan. Svoboda offered
various motor vehicles as collateral to secure the loan, and
purported to grant Foundation One a security interest in that
property, including a 2005 Mack CV 713 Truck (2005 Mack) and
a 2014 Mack GU 800 Conventional Cab (2014 Mack). The present
dispute between the parties concerns only the 2005 Mack and
the 2014 Mack.
provided Foundation One with a manufacturer's certificate
of origin (MCO) for the 2005 Mack and a certificate of title
for the 2014 Mack. The MCO for the 2005 Mack showed the
original transfer from Dallas Mack Sales, L.R, to Lehr on
February 24, 2005, followed by an undated transfer from RPM
Motors to "RPM Motors/Iason Svoboda." Notably, the
MCO contained a gap; the assignments on the MCO did not
include a transfer from Lehr to RPM Motors. The title for the
2014 Mack indicated it had been purchased by Svoboda from RPM
Motors on December 30, 2013.
Neb. 627] In an attempt to protect its priority to a lien on
the vehicles, and as part of the $200, 000 loan between
Foundation One and Svoboda individually, Foundation One paid
off other liens on the disputed motor vehicles totaling $85,
soon defaulted on the promissory note. After receiving
numerous reports of fraudulent behavior, the Nebraska Motor
Vehicle Industry Licensing Board closed RPM Motors in March
2016. Svoboda was ultimately convicted of title fraud for
obtaining a second MCO on a ...