Haynes v. Dover

V. CONCLUSION
We find the evidence insufficient to support the county
court’s conviction of Smith for caretaker neglect. We reverse
the conviction and sentence for caretaker neglect. We find
no abuse of discretion concerning the sentence imposed for
providing false information to law enforcement, and Smith
has not challenged her conviction for providing false infor-
mation. We affirm the conviction and sentence for providing
false information.
A ffirmed in pArt, And in pArt reversed.
L indA HAynes , personAL representAtive of tHe estAte of
L ouis e. L ucAs , deceAsed, AppeLLee , v. mArc dover
And L ori dover , AppeLLAnts.
768 N.W.2d 140
Filed May 26, 2009. 	No. A-08-1209.
1. Rules of Evidence: Hearsay. According to Neb. Rev. Stat. § 27-804 (Reissue
2008), a statement made by an unavailable witness is not excluded by the hear-
say rule if such statement was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest that a reasonable man in his position
would not have made the statement unless he believed it to be true.
2. Words and Phrases. A pecuniary interest is also termed a financial interest.
3. Uniform Commercial Code: Negotiable Instruments: Promissory Notes.
Discharge of a negotiable instrument such as a promissory note is governed by
the Uniform Commercial Code.
4. ____: ____: ____. According to Neb. U.C.C. § 3-604(a) (Reissue 2001), a person
entitled to enforce an instrument, with or without consideration, may discharge
the obligation of a party to pay the instrument (i) by an intentional voluntary act,
such as surrender of the instrument to the party, destruction, mutilation, or can-
cellation of the instrument, cancellation or striking out of the party’s signature, or
the addition of words to the instrument indicating discharge, or (ii) by agreeing
not to sue or otherwise renouncing rights against the party by a signed writing.
5. Judgments: Appeal and Error. A proper result will not be reversed merely
because it was reached for the wrong reason.
Appeal from the District Court for Sarpy County: WiLLiAm
B. ZAsterA, Judge. Affirmed.
Justin W. High, of Sodoro, Daly & Sodoro, for appellants.
640 	17 NebRASkA AppeLLAte RepORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

thomas k. Harmon, of Law Offices of thomas k. Harmon,
for appellee.
inBody, Chief Judge, and sievers and cAsseL, Judges.
sievers, Judge.
Marc Dover and Lori Dover appeal the decision of the
district court for Sarpy County finding that the Dovers were
in breach of contract on a promissory note in the amount of
$20,600 to Louis e. Lucas, deceased, that his personal repre-
sentative sought to collect in this lawsuit.
FACtUAL AND pROCeDURAL bACkGROUND
Lucas died on September 3, 2002. Linda Haynes, Lucas’
daughter, was appointed the personal representative of Lucas’
estate. In June 2005, Haynes, on behalf of the estate, brought an
action against the Dovers relating to two separate promissory
notes that were past due and still owed to the estate. Haynes’
complaint alleged three causes of action against the Dovers:
two for breach of contract and one for fraud. One cause of
action for breach of contract and the fraud cause of action were
ultimately dismissed. thus, only one cause of action for breach
of contract remains relevant in this appeal.
On March 6, 2001, the Dovers borrowed $20,600 from
Lucas, Lori’s grandfather, in exchange for a promissory note.
At the time of trial in September 2008, the Dovers had made
no payments on the promissory note, alleging that Lucas ver-
bally canceled the $20,600 debt the Dovers owed Lucas. At
trial, the district court sustained Haynes’ hearsay objection
and excluded Marc’s testimony that Lucas verbally canceled
the $20,600 debt the Dovers owed Lucas. the Dovers were
allowed to make an offer of proof regarding the same. In its
order, the district court found that Haynes sustained her burden
of proof on the breach of contract claim and entered judgment
against the Dovers in the amount of $20,600 plus interest. the
Dovers now appeal.
ASSIGNMeNtS OF eRROR
the Dovers allege that the trial court improperly sustained
Haynes’ hearsay objection and excluded Marc’s testimony that
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Lucas verbally canceled and forgave the $20,600 debt the
Dovers owed Lucas.
StANDARD OF ReVIeW
Apart from rulings under the residual hearsay exception, we
review for clear error the factual findings underpinning a trial
court’s hearsay ruling and review de novo the court’s ultimate
determination to admit evidence over a hearsay objection. State
v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
ANALySIS
During the bench trial, both Lori and Marc testified that they
had previously borrowed money from Lucas, but had always
paid him back. When questioned about their nonpayment of
the promissory note at issue, the following colloquy took place
between Marc, counsel for both parties, and the court:
[Defense counsel:] And was there some reason for the
change in — to in not making the payments?
[plaintiff’s counsel]: Objection: Relevancy.
tHe COURt: No, overruled. you may answer.
[Marc]: Okay. thank you.
Honestly, when things were busy with [the Lucases],
and Lori was taking care of [Lucas], it never really got
taken care of. And the day that [Lucas’ wife] was buried,
I went to his bedroom where he was laying down, he was
going to have surgery the next day, and I —
[plaintiff’s counsel]: I think we’re coming into a hear-
say here, so I’m going to object as to hearsay.
tHe COURt: Sustained.
[Defense counsel]: Can I make an offer of proof with
respect to an exception?
tHe COURt: Well, what’s the exception?
[Defense counsel]: It would be under 27-804, Subsection
2, Subsection C.
tHe COURt: Is that the dead man statute? twenty-
seven what?
[Defense counsel]: 27-804, Subparagraph 2, Subpara-
graph C.
tHe COURt: I’ll let you make your offer of proof.
642 	17 NebRASkA AppeLLAte RepORtS

[Defense counsel]: I’d offer — under that provision
of the statute, Judge, that would be an exception to the
hearsay rule, and the witness should be allowed to answer
the question.
tHe COURt: Well, it says intended to subject him
— that’s the declarant — to civil or criminal liability. I
don’t see it. It — the objection’s sustained. If you want to
make your offer of proof, you can.
[Defense counsel]: Well, for the record, I’d like the
[sic] make the offer of proof that the — the statement
— if this witness was allowed to answer that question,
it would be that . . . Lucas forgave the note at the — at
this time and place that he’s testified to up to the point
of objection.
tHe COURt: All right.
[Defense counsel]: And that that statement ought to be
allowed because the statement is made, which is contrary
to . . . Lucas’s pecuniary interest in that he’s owed this
money and he’s making the statement that it’s being for-
given. that would be my offer of proof.
tHe COURt: the offer of proof will be made a part of
the record. you may proceed.
[Marc]: that evening after we got back, I went to his
room because he was laying down, he was going to have
surgery the next day —
[plaintiff’s counsel]: Well, I’m going to object —
[Defense counsel]: Counsel’s objecting to it, [Marc], so
I have to go on to another question.
[Marc]: that’s fine. I didn’t understand. I’m sorry.
tHe COURt: that’s fine.
thus, while the court did not allow the evidence after finding
that such was hearsay, the offer of proof was that Lucas had
verbally canceled the $20,600 debt the Dovers owed Lucas.
[1] Neb. Rev. Stat. § 27-804 (Reissue 2008) states in rele-
vant part:
(2) Subject to the provisions of section 27-403, the fol-
lowing are not excluded by the hearsay rule if the declar-
ant is unavailable as a witness:
. . . .
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(c) A statement which was at the time of its making
so far contrary to the declarant’s pecuniary or proprie-
tary interest, or so far tended to subject him to civil or
criminal liability or to render invalid a claim by him
against another, that a reasonable man in his position
would not have made the statement unless he believed it
to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is
not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
In the instant case, Lucas was certainly an unavailable witness,
as he was deceased at the time of trial.
[2,3] the next question is whether Lucas’ alleged ver-
bal cancellation of the Dovers’ debt was contrary to Lucas’
pecuniary interest. See black’s Law Dictionary 829 (8th ed.
2004) (pecuniary interest is also termed financial interest). We
find that the alleged verbal cancellation or discharge of the
promissory note cannot be said to be against Lucas’ pecuni-
ary interest, because there was no writing offered or received
into evidence which purported to discharge the Dovers’ debt
to Lucas. Discharge of a negotiable instrument such as a
promissory note is governed by the Uniform Commercial
Code. FirsTier Bank v. Triplett, 242 Neb. 614, 497 N.W.2d
339 (1993).
[4] Neb. U.C.C. § 3-604(a) (Reissue 2001) states:
A person entitled to enforce an instrument, with or with-
out consideration, may discharge the obligation of a party
to pay the instrument (i) by an intentional voluntary act,
such as surrender of the instrument to the party, destruc-
tion, mutilation, or cancellation of the instrument, cancel-
lation or striking out of the party’s signature, or the addi-
tion of words to the instrument indicating discharge, or
(ii) by agreeing not to sue or otherwise renouncing rights
against the party by a signed writing.
there was no evidence of discharge by one of the physi-
cal acts detailed in § 3-604(a)(i). therefore, any discharge or
cancellation could only be proved by a signed writing, and
thus, the alleged statement attributable to Lucas regarding
the Dovers’ debt would not be against his pecuniary interest
644 	17 NebRASkA AppeLLAte RepORtS

because such would not affect the validity of the note. thus,
the evidence of the alleged verbal forgiveness of the debt was
not admissible as an exception to the hearsay rule, and such
was properly excluded by the trial court.
[5] Although our reasons for concluding that the testimony
was not admissible are somewhat different than the district
court’s, there was no error when the trial court sustained
Haynes’ hearsay objection. A proper result will not be reversed
merely because it was reached for the wrong reason. See
Thornton v. Grand Island Contract Carriers, 262 Neb. 740,
634 N.W.2d 794 (2001). We affirm the decision of the dis-
trict court.
A ffirmed.
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Cite as 17 Neb. App. 640