Western Ethanol Co. v. Midwest Renewable Energy
305 Neb. 1
| Neb. | 2020Background
- In 2010 Western Ethanol obtained a California judgment against Midwest Renewable and transcribed it in Nebraska; multiple execution attempts failed.
- Western Ethanol dissolved in 2013 and distributed assets to members; an affidavit by Douglas B. Vind (managing member) in a separate quiet title suit asserted that the judgment had been transferred to him.
- Nebraska Supreme Court in a prior appeal held Vind was an indispensable party and remanded for Vind to be made a party before ownership of the judgment could be decided.
- In 2017 Western Ethanol (through filings) acknowledged assignment of the California judgment to Vind; Vind filed a praecipe for writ of execution and the clerk issued a writ.
- Midwest Renewable moved to quash execution, arguing no valid assignment to Vind, Vind lacked authority, and the quiet title litigation was ongoing; the district court denied the motion and subsequent motion to alter or amend, and Midwest appealed.
Issues
| Issue | Plaintiff's Argument (Midwest) | Defendant's Argument (Vind/Western Ethanol) | Held |
|---|---|---|---|
| Appellate jurisdiction — final order | Denial of quash/motion to alter not a final, appealable order | Orders denying quash are final when they authorize seizure and affect substantial rights | Affirmed jurisdiction: denial affected substantial right (execution authorized seizure) |
| Standing to challenge assignment | Midwest: has standing because an invalid assignment would directly injure it (risk of paying wrong party) | Vind: Midwest lacks standing because it is not a party to the assignment (Marcuzzo rule) | Midwest has standing under exception to Marcuzzo where debtor shows direct injury or assignment invalidity |
| Real party in interest / ownership of judgment | Midwest: no valid written assignment to Vind, so Vind is not real party in interest | Vind: assignment/acknowledgments and prior proceedings show Vind owns judgment and may enforce it | Vind is the real party in interest; Midwest judicially admitted in prior appeal that Vind received the judgment, and is estopped from denying it |
| Procedural challenge to Vind enforcing in his name | Vind improperly enforced without formal substitution or complaint | An assignee may sue in his own name; Vind appeared without objection and court may add parties at any time | No abuse of discretion; Vind properly appeared and Midwest waived untimely objection |
Key Cases Cited
- Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73 (2017) (prior Nebraska decision holding Vind an indispensable party and vacating judgment pending Vind's joinder)
- Marcuzzo v. Bank of the West, 290 Neb. 809 (2015) (borrower generally lacks standing to challenge mortgage assignment absent direct injury or assignment being void)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (2016) (order overruling objections to execution/garnishment can be a final appealable order when it affects substantial rights)
- Hawley v. Skradski, 304 Neb. 488 (2019) (assignee can establish standing by proving a written assignment by preponderance under Neb. Rev. Stat. § 25-304)
- Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38 (2018) (distinguishes facial vs. factual jurisdictional challenges and applicable standards of review)
- In re Estate of Radford, 297 Neb. 748 (2017) (bill of exceptions is the proper vehicle for presenting evidentiary matters to an appellate court)