Christian v. Smith

§§ 77‑132 and 77‑1359 and that these statutes do not violate
Neb. Const. art. VIII, § 1. With respect to Large’s cross‑appeal,
we conclude that Large was not prejudiced by any error in the
admission of the testimony of Stevens.
We 	therefore 	affirm 	the 	decisions 	of 	TERC 	in 	these
appeals.
A ffirmed.
C hris W. C hristiAn And tAbithA C hristiAn, husbAnd And
Wife , Appellees And Cross -AppellAnts , v. bert smith iv,
Appellee And Cross -Appellee , And b4 CAttle
C ompAny, inC., AppellAnt And Cross -Appellee .
759 N.W.2d 447
Filed December 12, 2008. 	No. S‑07‑215.
1. Jurisdiction. Whether a suit should be entertained or dismissed under the rule of
forum non conveniens depends largely upon the facts of the particular case and
rests in the discretion of the trial court.
2. Jurisdiction: States. When there are no factual disputes regarding state contacts,
conflict‑of‑law issues present questions of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
4. Corporations: Equity: Liability. Proceedings seeking disregard of corporate
entity, that is, piercing the corporate veil to impose liability on a shareholder for
a corporation’s debt or other obligation, are equitable actions.
5. Equity: Appeal and Error. In an appeal of an equity action, an appellate court
tries factual questions de novo on the record, reaching a conclusion independent
of the findings of the trial court.
6. Directed Verdict: Evidence: Appeal and Error. Concerning the overruling of
a motion for a directed verdict made at the close of all the evidence, appellate
review is controlled by the rule that a directed verdict is proper only when reason‑
able minds can draw but one conclusion from the evidence, where an issue should
be decided as a matter of law.
7. Verdicts: Appeal and Error. A civil jury verdict will not be disturbed on appeal
unless clearly wrong.
8. Damages: Verdicts: Juries: Appeal and Error. Where the amount of damages
allowed by a jury is clearly inadequate under the evidence, it is error for the trial
court to refuse to set the verdict aside.
9. Jurisdiction. A forum is seriously inconvenient only if one party would be effec‑
tively deprived of a meaningful day in court.
10. Jurisdiction: States. The first step in a conflict‑of‑law analysis is to determine
whether there is an actual conflict between the legal rules of different states.
ChRISTIAN v. SmITh 	867
Cite as 276 Neb. 867
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

11. Jury Instructions. While instructions withdrawing consideration of material
issues of fact presented by the pleadings and evidence are erroneous, the trial
court must eliminate all matters not in dispute and submit only the controverted
questions of fact on which the verdict must depend.
12. Trial: Evidence: Juries. A motion in limine is only a procedural step to prevent
prejudicial evidence from reaching the jury. It is not the office of such a motion
to obtain a final ruling upon the ultimate admissibility of the evidence.
13. Trial: Appeal and Error. A litigant must specify the grounds for an objection at
trial to preserve the issue for appeal.
14. Appeal and Error. An objection, based on a specific ground and properly over‑
ruled, does not preserve a question for appellate review on any other ground.
15. Corporations: Liability: Appeal and Error. Generally, a corporation is viewed
as a complete and separate entity from its shareholders and officers, who are not,
as a rule, liable for the debts and obligations of the corporation.
16. Corporations: Fraud. A court will disregard a corporation’s identity only where
the corporation has been used to commit fraud, violate a legal duty, or perpetrate
a dishonest or unjust act in contravention of the rights of another.
17. Corporations. A corporation’s identity as a separate legal entity will be pre‑
served, as a general rule, until sufficient reason to the contrary appears.
18. Corporations: Proof: Fraud. A plaintiff seeking to pierce the corporate veil
must allege and prove that the corporation was under the actual control of the
shareholder and that the shareholder exercised such control to commit a fraud or
other wrong in contravention of the plaintiff’s rights.
19. Corporations: Liability: Proof: Fraud: Debtors and Creditors. A plaintiff
seeking to impose liability for a corporate debt on a shareholder has the burden
to show by a preponderance of the evidence that the corporate identity must be
disregarded to prevent fraud or injustice to the plaintiff.
Appeal from the District Court for Cuming County: robert
b. ensz, Judge. Affirmed as modified.
John 	C. 	hahn 	and 	Brett 	T. 	Daee, 	of 	Jeffrey, 	hahn,
hemmerling & Zimmerman, P.C., for appellant and for appel‑
lee Bert Smith IV.
Edward F. Fogarty, of Fogarty, Lund & Gross, for appellees
Chris W. Christian and Tabitha Christian.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
mCC ormACk , J.
I. NATURE OF CASE
This case involves an oral contract. The dispute involves
the terms of the oral contract and whether the oral con‑
tract was between Chris W. Christian and Bert Smith IV
868 	276 NEBRASkA REPORTS

or between Christian and B4 Cattle Company, Inc. (B4),
Smith’s corporation. Smith claims that the oral agreement
was between Christian and B4. Under the terms of the oral
agreement, Christian would borrow money from the Citizens
National Bank of Wisner, Nebraska (CNBW), to purchase
and feed cattle on behalf of Smith or B4. In exchange for the
use of Christian’s credit line, Smith or B4 promised to pay
Christian a fee for each lot of cattle purchased. Christian’s
line of credit was also used to purchase feed for the cattle,
and the debt incurred from the purchase of feed was to be
paid using the money from the eventual sale of the cattle. The
parties disagree whether Smith or B4 promised to pay the
line of credit should the proceeds from the sale of the cattle
be insufficient for Christian to do so. The cattle sales were
insufficient to pay the lines of credit, Christian defaulted on
the loan, and CNBW obtained a judgment against him. Smith
and B4 refused to indemnify Christian, and Christian filed
this breach of contract claim. Christian contends that B4 was
the alter ego of Smith and that the corporate existence of B4
should be disregarded.
II. BACkGROUND
Christian and Smith were longtime friends who grew up
together in Tennessee. Christian is a full‑time physical therapist
who occasionally hauls hay or cattle. Smith has been in the
cattle business all of his life. Smith claims that in entering into
the oral agreement with Christian, he was acting on behalf of
B4. Smith incorporated B4 in 2001 in Virginia. he is the presi‑
dent and sole stockholder of B4. Smith testified that he is the
sole member of the board of directors of B4 and holds “[a]ll
positions” of B4. Smith divides his time between Tennessee
and Virginia. Christian lives in Tennessee.
1. orAl Agreement
It is undisputed that in the spring of 2003, Christian and
Smith had a telephone conversation about a possible arrange‑
ment in which Smith or B4 would use Christian’s line of credit
to purchase, feed, and care for cattle. Christian testified that
Smith or B4 wanted to use Christian to borrow money because
ChRISTIAN v. SmITh 	869
Cite as 276 Neb. 867

Smith or B4 could not get any more credit. Smith proposed
that in exchange for the use of Christian’s credit line, Smith
or B4 would pay Christian a fee, that the parties call a “com‑
mission,” for each lot of cattle purchased. The exact amount
of the fee is disputed. Smith claims the fee was $250, while
Christian claims it was $500. The debt on Christian’s line of
credit was to be paid off using the money from the eventual
sale of the cattle.
Under their agreement, Christian would borrow the money
from CNBW. The loans for the purchase of the cattle would
be in Christian’s name, and the cattle would also be titled
in Christian’s name. The cattle would be kept and cared for
at feedlots owned and operated by max kant in Norfolk,
Nebraska. Smith would make all management decisions con‑
cerning the purchasing and feeding of the cattle.
According to Christian, he “just wanted the commission off
of it” and Smith would take “all profit and all loss.” Smith, on
the other hand, testified that there was never a meeting of the
minds on profits and losses. Smith testified that they agreed to
talk about profits and losses later. In his deposition, however,
portions of which were read into the record at trial, Smith
stated that Christian “‘assumed that if I was getting the profit
that I would take the loss.’”
Pursuant to their oral agreement for the Nebraska‑fed cattle,
Christian established three lines of credit with CNBW as fol‑
lows: (1) August 2003, $925,000 accruing interest immediately
at 6.25 percent; (2) August 2003, $178,000 accruing interest
immediately at 6.25 percent; and (3) October 2003, $112,850
accruing interest immediately at 6.5 percent. All three lines
accrued interest at maturity of 16 percent per annum.
Once the first line of credit was established, Smith, or Smith
on behalf of B4, began using it to fund the location and pur‑
chase of cattle. Under the usual procedure, Smith would locate,
select, and sort cattle. Once the cattle were chosen, Smith
would fax a handwritten invoice to Christian, who would write
a check for the purchase price. Smith’s father would usually
pick up Christian’s check and send it to the seller. Christian
would then be reimbursed plus the “commission.” Christian
testified that his account was often overdrawn because Smith
870 	276 NEBRASkA REPORTS

was slow in sending the reimbursement checks. After about 3
months, Smith or B4 stopped buying cattle.
Christian’s line of credit continued to be used to pay for
the ongoing care of the cattle on kant’s feedlot. kant had the
authority to draw on Christian’s credit line to pay for feed. If
any of the fattened cattle were sold, kant would apply the pro‑
ceeds to pay down Christian’s credit line.
If there was excess money remaining after the credit line
was paid, the arrangement was that kant would send the
profits “back to Tennessee.” kant testified that on only one
occasion were there excess profits after paying the credit
line. kant testified that he sent those profits, around $28,000,
to Smith. Christian testified that he was never informed of
nor received any portion of those profits. he thought this
was proper because, under their agreement, the profits were
Smith’s. Christian stated that “it was defined to me that [Smith]
got all profits and all losses and all I got was the commission
per load.” Smith acknowledged at trial that he had testified in
his deposition that he was to receive the profits, if any, from
the arrangement with Christian.
The cattle were titled in Christian’s name, and the signed
CNBW loan documents stated that Christian was not acting
as a straw man for anyone. Nevertheless, Christian testified
that the agreement was that Smith owned the cattle. Smith
likewise admitted at trial that the cattle were actually owned
by him. In his testimony, Smith would not refer to B4 as
owning the cattle, but would always say that they were owned
by him.
kant, the feedlot owner, also testified that Smith was the
owner of the cattle purchased with Christian’s line of credit. To
ensure that the feedlot record of ownership was correct, Smith
had sent a fax to kant requesting the feedlot to change all
cattle titled in Christian’s name to Smith’s name. After receiv‑
ing the written request, kant updated his records to reflect that
Smith was the owner of the cattle.
Eventually, all the cattle that had been financed using
Christian’s line of credit were sold. The sales were insufficient
to pay the lines of credit, and Christian defaulted. Christian
testified that after CNBW called to inform him that he owed
ChRISTIAN v. SmITh 	871
Cite as 276 Neb. 867

$168,000, 	Christian 	alerted 	Smith. 	Christian 	testified 	that
Smith said, “Don’t worry about it, they’ll probably just role
[sic] it over into my debt.” Christian had no further discussions
with Smith until CNBW sued Christian on June 7, 2004. Upon
receiving the complaint, Christian faxed it to Smith. Although
Smith was not a party to the action, he told Christian he would
help Christian find an attorney in Nebraska and assist Christian
“with some money.” Christian and CNBW settled the case, and
on January 5, 2006, CNBW took judgment of $168,000 with
16‑percent interest.
After the judgment was entered, CNBW began to execute on
the judgment by levying Christian’s bank accounts and garnish‑
ing his wages. At the time of trial, $20,060.29 had been taken
from Christian. Because Christian did not have enough money
to pay the judgment, CNBW pursued kant, who was a signed
guarantor on Christian’s line of credit. Eventually, kant paid
CNBW $130,000 and was assigned the $169,379 judgment
against Christian. kant also received the ongoing garnishment
against Christian’s checking account.
2. triAl
Christian brought a claim against Smith and B4 in the dis‑
trict court for Cuming County, Nebraska, for breach of the
alleged agreement to hold him harmless for any losses result‑
ing from the cattle transactions. Christian styled his complaint
as against “Bert Smith IV and B4 Cattle Company.” In the
body of the complaint, it alleges that Smith and B4 “wanted
to increase the number of cattle they had on feed in Nebraska”
and that Smith, “in his personal capacity, asked his life long
friend, Chris Christian, to enable him to do this.”
On the day before the trial, B4 moved to dismiss, argu‑
ing that the suit was not brought under the correct choice of
law. B4 argued that Tennessee law, not Nebraska law, was the
appropriate law to govern this action, because Tennessee had a
more significant relationship to the transaction and the parties.
Christian responded that most of the contacts surrounding the
case were in Nebraska and that therefore Nebraska law was the
correct choice of law. Christian also argued that regardless of
the choice of the law, the statutes of frauds in Nebraska and
872 	276 NEBRASkA REPORTS

Tennessee are essentially the same. The district court overruled
B4’s motion regarding choice of law and applied Nebraska law
to the claim.
B4 also filed a motion to dismiss under the doctrine of
forum non conveniens on the day before trial. The court over‑
ruled the motion, because the parties and witnesses were
already in Nebraska ready for trial. The court noted that the
motion might have had more weight if it had been raised ear‑
lier in the case.
B4 had previously filed a motion in limine to exclude
evidence showing that Smith offered to pay the legal fees of
Christian in the CNBW suit or evidence of indemnification
of Christian by Smith. That motion was overruled. At trial,
however, the judge sustained B4’s objection that evidence of
a settlement offer by Smith had no probative value. The court
still allowed the jury to consider, over B4’s objection, evidence
that Smith had offered to help Christian with legal fees in rela‑
tion to CNBW’s suit against him.
At the close of the evidence, Christian filed three motions:
(1) a motion for directed verdict against both Smith and B4 for
$168,000 plus interest, (2) a partial directed verdict that B4 and
Smith were jointly liable because B4 was merely the alter ego
of Smith, and (3) a motion to advise the jury that the agreement
between Smith and Christian did not need to be in writing. The
court overruled the motion for directed verdict, because the
existence of a contract was “clearly a jury question . . . . So as
to what the amount would be is certainly premature.” The court
granted a motion made by Smith for a directed verdict, stat‑
ing: “I’m going to sustain the motion for directed verdict filed
by the defendant Bert Smith IV so that the party remaining as
defendant in this action that will go to the jury is B4 Cattle
Company, Inc.” As a result, B4 was the only defendant whose
liability was submitted to the jury. Finally, the court deter‑
mined that the alleged oral agreement was outside the statute of
frauds as a matter of law. Therefore, the court did not instruct
the jury on the defense.
The jury returned a verdict in favor of Christian in the
amount of $130,000. Christian made a motion to amend the
judgment to award $168,000 instead of $130,000. The court
ChRISTIAN v. SmITh 	873
Cite as 276 Neb. 867

overruled the motion, stating that there was “no reason to go
in and affect the jury’s verdict,” because the $130,000 amount
was “within the evidence that was offered.” B4’s motion for a
new trial was overruled.
B4 appealed the judgment, and Christian cross‑appealed.
III. ASSIGNmENTS OF ERROR
B4 assigns, consolidated and restated, that the district court
erred in (1) overruling its motion to dismiss and a motion for
directed verdict under the doctrine of forum non conveniens,
(2) applying Nebraska law rather than Tennessee law, (3) find‑
ing that the statute of frauds did not bar the breach of contract
action, (4) failing to submit to the jury an instruction regarding
the statute of frauds, and (5) overruling its motion in limine
concerning Smith’s payment of Christian’s attorney fees in
Christian’s litigation with CNBW.
On cross‑appeal, Christian assigns that the district court
erred in (1) not ruling as a matter of law that the damages
in this case were set by the $168,000‑plus‑interest judgment
against Christian in prior litigation with CNBW and (2) not
finding Smith, individually, jointly liable with B4 for the
breach of contract.
IV. STANDARD OF REVIEW
[1] Whether a suit should be entertained or dismissed under
the rule of forum non conveniens depends largely upon the
facts of the particular case and rests in the discretion of the
trial court.1
[2,3] When there are no factual disputes regarding state con‑
tacts, conflict‑of‑law issues present questions of law.2 When
reviewing questions of law, an appellate court resolves the
questions independently of the lower court’s conclusion.3
[4,5] Proceedings seeking disregard of corporate entity,
that is, piercing the corporate veil to impose liability on a
1 Woodmen of the World Life Ins. Soc. v. Kight, 246 Neb. 619, 522 N.W.2d
155 (1994).
2 Heinze v. Heinze, 274 Neb. 595, 742 N.W.2d 465 (2007).
3 Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
874 	276 NEBRASkA REPORTS

shareholder for a corporation’s debt or other obligation, are
equitable actions.4 In an appeal of an equity action, an appellate
court tries factual questions de novo on the record, reaching a
conclusion independent of the findings of the trial court.5
[6] Concerning the overruling of a motion for a directed
verdict made at the close of all the evidence, appellate review
is controlled by the rule that a directed verdict is proper only
when reasonable minds can draw but one conclusion from
the evidence, where an issue should be decided as a matter
of law.6
[7,8] A civil jury verdict will not be disturbed on appeal
unless clearly wrong.7 Where the amount of damages allowed
by a jury is clearly inadequate under the evidence, it is error for
the trial court to refuse to set the verdict aside.8
V. ANALYSIS
1. forum non C onveniens
B4 first argues that the district court erred when it overruled
B4’s pretrial motion to dismiss and motion for directed verdict
under the doctrine of forum non conveniens. B4 contends that
Tennessee provided a better and more appropriate forum for
the action to be heard.
The doctrine of forum non conveniens refers to the dis‑
cretionary power of a court to decline jurisdiction when the
convenience of the parties and the ends of justice would be
better served if the action were brought and tried in another
forum.9 Whether a suit should be entertained or dismissed
under the rule of forum non conveniens depends largely upon
the facts of the particular case.10 Unless the balance is strongly
4 J. L. Brock Bldrs., Inc. v. Dahlbeck, 223 Neb. 493, 391 N.W.2d 110
(1986).
5 Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008).
6 Frank v. Lockwood, 275 Neb. 735, 749 N.W.2d 443 (2008).
7 Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001).
8 Springer v. Bohling, 263 Neb. 802, 643 N.W.2d 386 (2002).
9 Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191
(2005).
10 Woodmen of the World Life Ins. Soc. v. Kight, supra note 1.
ChRISTIAN v. SmITh 	875
Cite as 276 Neb. 867

in favor of the defendant, however, the plaintiff’s choice of
forum should rarely be disturbed.11 The doctrine of forum non
conveniens provides that a state will not exercise jurisdic‑
tion if it is a seriously inconvenient forum for the trial of the
action, provided that a more appropriate forum is provided to
the plaintiff.12
[9] In this case, Christian chose to file this action in Cuming
County, Nebraska. B4 failed to challenge the purportedly
inconvenient forum until the day before trial. We have held
that a forum is seriously inconvenient only if one party would
be effectively deprived of a meaningful day in court.13 And the
trial court should consider practical factors that make trial of
the case easy, expeditious, and inexpensive, such as the rela‑
tive ease of access to sources of proof, the cost of obtaining
attendance of witnesses, and the ability to secure attendance
of witnesses through compulsory process.14 here, B4 was not
effectively deprived of a meaningful day in court because, as
the district court noted, on the day of the trial, all the parties
and a number of witnesses were already present and prepared
for trial in Nebraska. Stated another way, by the time B4 made
its objection, Nebraska was the only convenient forum in
which to proceed. We determine that the district court did not
abuse its discretion in denying B4’s motion to dismiss under
the doctrine of forum non conveniens.
2. C hoiCe of lAW
We next consider which state’s law governs the issues at
hand: Nebraska’s or Tennessee’s. B4 argues that the district
court erred in overruling a pretrial motion to dismiss regard‑
ing choice of law and asserts that Tennessee law rather than
Nebraska law should have applied. Specifically, B4 contends
that the district court should have decided the case under the
Tennessee statute of frauds. We disagree. We first note that
11 Ameritas Invest. Corp. v. McKinney, supra note 9.
12 Id.
13 Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 273 Neb. 1026, 734
N.W.2d 750 (2007).
14 Ameritas Invest. Corp. v. McKinney, supra note 9.
876 	276 NEBRASkA REPORTS

because choice‑of‑law principles are not a bar to jurisdiction,15
the applicability of Tennessee law would not support B4’s
motion to dismiss in any event. But because B4 also argues that
Tennessee law should have been applied by the Nebraska court,
we consider its choice‑of‑law argument.
[10] The first step in a conflict‑of‑law analysis is to deter‑
mine whether there is an actual conflict between the legal rules
of different states.16 Before entangling itself in messy issues of
conflict of laws, a court ought to satisfy itself that there actu‑
ally is a difference between the relevant laws of the different
states.17 In this case, we find no difference in the relevant law
of the two states, and we therefore conclude that the district
court did not err by applying Nebraska law.
First, the two statutes of frauds are virtually identical.
Nebraska’s statute of frauds provides in pertinent part as fol‑
lows: “In the following cases every agreement shall be void,
unless such agreement, or some note or memorandum thereof,
be in writing, and subscribed by the party to be charged there‑
with: . . . (2) every special promise to answer for the debt,
default, or misdoings of another person.”18 Tennessee’s statute
of frauds provides in pertinent part, “No action shall be brought
. . . [t]o charge the defendant upon any special promise to
answer for the debt, default, or miscarriage of another person
. . . unless the promise or agreement . . . or some memorandum
or note thereof, shall be in writing, and signed by the party to
be charged therewith.”19
But, more important, both Tennessee20 and Nebraska21 rec‑
ognize the common‑law “leading object rule” exception to the
15 See Johnson v. Johnson, 272 Neb. 263, 720 N.W.2d 20 (2006).
16 Heinze v. Heinze, supra note 2.
17 Malena v. Marriott International, 264 Neb. 759, 651 N.W.2d 850 (2002).
18 Neb. Rev. Stat. § 36‑202 (Reissue 2004).
19 Tenn. Code Ann. § 29‑2‑101 (Supp. 2008).
20 See Wolff Ardis, P.C. v. Kimball Products, Inc., 289 F. Supp. 2d 937 (W.D.
Tenn. 2003).
21 See, In re Estate of Dueck, 274 Neb. 89, 736 N.W.2d 720 (2007);
Fitzgerald v. Morrissey, 14 Neb. 198, 15 N.W. 233 (1883).
ChRISTIAN v. SmITh 	877
Cite as 276 Neb. 867

statute of frauds. As will be discussed further below, it is this
exception that determines the statute of frauds issue alleged
by B4. And we can find no meaningful difference between
the leading object rule in the two states. Because there is
no meaningful conflict between the relevant principles of
Nebraska and Tennessee law, we find no merit to B4’s assign‑
ment of error.
3. stAtute of frAuds
B4 argues that the district court erred in finding that the
statute of frauds did not bar the breach of contract claim and
in failing to submit any statute of frauds instruction to the
jury. B4 specifically claims that even assuming the alleged oral
contract was an agreement by B4 to pay for Christian’s debt,
it would be unenforceable because it was not in writing. Under
the undisputed facts of this case, we determine, for the rea‑
sons set forth below, that the statute of frauds would not apply
and that, as a result, the district court did not err in failing to
instruct the jury on the issue.
[11] While instructions withdrawing consideration of mate‑
rial issues of fact presented by the pleadings and evidence
are erroneous, the trial court must eliminate all matters not
in dispute and submit only the controverted questions of fact
on which the verdict must depend.22 here, the district court
properly found that the benefit to B4 was so plainly apparent
from the evidence adduced at trial that the alleged oral promise
would be outside the statute of frauds under the leading object
rule. As a result, the district court correctly withheld a statute
of frauds instruction.
As mentioned above, Nebraska’s statute of frauds provides
that “every special promise to answer for the debt, default,
or misdoings of another person” “shall be void, unless such
agreement, or some note or memorandum thereof, be in writ‑
ing, and subscribed by the party to be charged therewith.”23
Nevertheless, under the leading object rule, a promise to
answer for the debt of another will be valid, although not
22 Palmtag v. Gartner Constr. Co., 245 Neb. 405, 513 N.W.2d 495 (1994).
23 § 36‑202.
878 	276 NEBRASkA REPORTS

in writing, when the principal object of the party promising
to pay the debt is to promote his own interests—and not to
become a guarantor or surety—and when the promise is made
on sufficient consideration.24 Under this “leading object excep‑
tion” to the statute of frauds, the consideration to support an
oral promise to pay the debt of another must operate to the
advantage of the promisor. It also must place him under a
pecuniary obligation to the promisee independent of the origi‑
nal debt, which obligation is to be discharged by the payment
of that debt.25
The Restatement (Second) of Contracts26 explains that when
the leading object of the promise is to promote the promisor’s
own interests, then the promisor does not need the protection
against his own generous impulses afforded by the statute of
frauds. Where the promisor’s main objective is to serve his own
pecuniary or business advantage, the gratuitous element of the
suretyship is eliminated, the likelihood of disproportion in the
values exchanged is reduced, and the context of commercial
dealings provides its own evidentiary safeguards.27
For the “leading object” of the promise to be the promisor’s
own interests, the promisor need not receive cash in hand from
the promise. Nevertheless, the path of benefits flowing to the
promisor must not be so circuitous or uncertain that obtain‑
ing those benefits cannot be said to have been his main pur‑
pose in making the promise.28 As a matter of practicality, the
promisor’s advantage must be served in a straightforward way
in order for the main purpose rule to apply.29 We treat the terms
“leading object” and “main purpose” synonymously.
24 In re Estate of Dueck, supra note 21; Fitzgerald v. Morrissey, supra note
21; 4 Caroline N. Brown, Corbin on Contracts § 16.1 (Joseph m. Perillo
ed., rev. ed. 1997).
25 Heese Produce Co. v. Lueders, 233 Neb. 12, 443 N.W.2d 278 (1989). See,
also, VSC, Inc. v. Lilja, 203 Neb. 844, 280 N.W.2d 901 (1979).
26 Restatement (Second) of Contracts § 116 (1981).
27 Id.
28 Graybar Elec. Co. v. Sawyer, 485 A.2d 1384 (me. 1985) (citing
Restatement, supra note 26).
29 Id.
ChRISTIAN v. SmITh 	879
Cite as 276 Neb. 867

here, the evidence establishes that Smith, or Smith on behalf
of B4, intended by his agreement with Christian to procure an
immediate and substantial benefit flowing directly to himself
or B4. The immediate and substantial benefit Smith intended
was the ownership of the cattle and the potential profits from
the sale of the cattle. Smith admitted at trial that it was he, and
not Christian, who actually owned the cattle purchased with
the line of credit. And in his deposition, Smith admitted, albeit
reluctantly, that he was to receive any profits from the sale of
the cattle that were purchased with the CNBW funds. This was
consistent with the other testimony presented at trial and was
not contradicted by any of the evidence presented. Christian
testified that under the oral agreement, “it was defined to me
that [Smith] got all profits and all losses and all I got was the
commission per load.” And kant, the feedlot owner, testified
that he understood that the cattle belonged to Smith, and kant
actually sent Smith all profits from the sale of cattle.
Thus, the evidence establishes that the main purpose of
any oral promise by Smith, or Smith on behalf of B4, to pay
Christian’s debt was to serve his own interests. Smith’s princi‑
pal object in agreeing to the deal was to garner profits from the
sale of fattened cattle—and not to become Christian’s guaran‑
tor. The oral agreement, therefore, falls within the ambit of the
leading object rule, and the agreement need not be in writing
to be enforceable. Because the benefit to Smith or B4 was
so plainly apparent from the record and therefore outside the
statute of frauds, the district court correctly withheld a statute
of frauds instruction. Because the evidence was insufficient as
a matter of law to support a finding that Christian’s claim was
barred by the statute of frauds, we find no merit to B4’s third
or fourth assignments of error.
4. motion in limine
Finally, B4 argues that the district court erred in admitting
evidence of Smith’s offer to pay the attorney fees Christian
incurred in the CNBW litigation. At trial, Smith testified that
he offered to help Christian fight the CNBW suit and find
him an attorney. Christian testified, over the objection of B4’s
counsel, that Smith told him he would help get Christian an
880 	276 NEBRASkA REPORTS

attorney and would help pay for the litigation. B4 asserts
that the evidence regarding the attorney fees was irrelevant
and prejudicial.
[12] But the only objection B4 made at trial was based on
foundation and the form of the question. A motion in limine
is only a procedural step to prevent prejudicial evidence from
reaching the jury. It is not the office of such a motion to obtain
a final ruling upon the ultimate admissibility of the evidence.30
And because overruling a motion in limine is not a final rul‑
ing on the admissibility of evidence and does not present a
question for appellate review, a question concerning the admis‑
sibility of evidence which is the subject of a motion in limine
is raised and preserved for appellate review by an appropriate
objection or offer of proof during trial.31
[13,14] B4’s brief does not direct us to any objection made
to the disputed testimony at trial that was based on relevance,
nor can we find such in the record. It is well established that
a litigant must specify the grounds for an objection at trial
to preserve the issue for appeal.32 An objection, based on a
specific ground and properly overruled, does not preserve a
question for appellate review on any other ground.33 Because
B4 did not preserve its arguments with respect to relevance or
unfair prejudice by objecting on those grounds at trial, we do
not consider its assignment of error to that effect.
5. C ross -A ppeAl
(a) Smith’s Individual Liability
On cross‑appeal, Christian contends that the district court
erred when it ruled as a matter of law that only B4 was liable.
Christian pled his case as a claim against Smith and B4. The
complaint alleges that
Bert Smith IV and B4 Cattle Company wanted to increase
the number of cattle they had on feed in Nebraska. Bert
30 See State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
31 See id.
32 Blue Valley Co-op v. National Farmers Org., 257 Neb. 751, 600 N.W.2d
786 (1999).
33 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
ChRISTIAN v. SmITh 	881
Cite as 276 Neb. 867

Smith IV, in his personal capacity, asked his life long
friend, Chris Christian, to enable him to do this by way of
the following oral agreement:
. . . .
(d) The equity in the cattle would be owned by Bert
Smith IV and B4 Cattle Company. All profits would go to
Bert Smith IV and B4 Cattle Company.
(e) Bert Smith IV and B4 Cattle Company would hold
[Christian] harmless on any loss.
(f) Bert Smith IV and B4 Cattle Company would pay
[Christian] a commission . . . .
In their answer, Smith and B4 “[a]ffirmatively alleges [sic]
that the Defendant, Bert Smith IV, is not a proper party to this
action as said Defendant B4 Cattle Company, Inc. is a sepa‑
rate and distinct entity free of the Defendant, BERT SmITh
IV, which followed corporate formalities and had no dealings
with [Christian].”
Christian had only one oral agreement, and it was with either
Smith or B4. The only way both Smith and B4 could be liable
would be if B4 was found to be liable and the corporate veil
was pierced to make Smith also liable. The pleadings and the
evidence adduced do not indicate in any way that Smith and B4
could be jointly liable without piercing the corporate veil. It is
obvious from the record that the only issue before the district
court as to Smith’s individual liability was whether Christian
had proved a piercing of the corporate veil of B4.
In granting Christian’s motion for a directed verdict as to
Smith, the district court reasoned that because Christian failed
to present sufficient evidence to pierce the corporate veil, only
B4 should be submitted to the jury as a defendant. Proceedings
seeking disregard of corporate entity, that is, piercing the corpo‑
rate veil to impose liability on a shareholder for a corporation’s
debt or other obligation, are equitable actions.34 In an appeal
of an equity action, an appellate court tries factual questions
de novo on the record, reaching a conclusion independent of
the findings of the trial court.35 We agree with the district court
34 J. L. Brock Bldrs., Inc. v. Dahlbeck, supra note 4.
35 Reed v. Reed, supra note 5.
882 	276 NEBRASkA REPORTS

that Christian failed to present sufficient evidence to pierce the
corporate veil.
[15‑17] Generally, a corporation is viewed as a complete
and separate entity from its shareholders and officers, who are
not, as a rule, liable for the debts and obligations of the cor‑
poration.36 A court will disregard a corporation’s identity only
where the corporation has been used to commit fraud, violate
a legal duty, or perpetrate a dishonest or unjust act in contra‑
vention of the rights of another.37 A corporation’s identity as a
separate legal entity will be preserved, as a general rule, until
sufficient reason to the contrary appears.38
[18,19] A plaintiff seeking to pierce the corporate veil must
allege and prove that the corporation was under the actual
control of the shareholder and that the shareholder exercised
such control to commit a fraud or other wrong in contraven‑
tion of the plaintiff’s rights.39 A plaintiff seeking to impose
liability for a corporate debt on a shareholder has the burden
to show by a preponderance of the evidence that the corporate
identity must be disregarded to prevent fraud or injustice to
the plaintiff.40
Some of the relevant factors in determining whether to dis‑
regard the corporate entity on the basis of fraud are (1) grossly
inadequate capitalization, (2) insolvency of the debtor corpora‑
tion at the time the debt is incurred, (3) diversion by the share‑
holder or shareholders of corporate funds or assets to their own
or other improper uses, and (4) the fact that the corporation
is a mere facade for the personal dealings of the shareholder
and that the operations of the corporation are carried on by the
shareholder in disregard of the corporate entity.41
36 Baye v. Airlite Plastics Co., 260 Neb. 385, 618 N.W.2d 145 (2000).
37 Global Credit Servs. v. AMISUB, 244 Neb. 681, 508 N.W.2d 836 (1993).
38 Southern Lumber & Coal v. M. P. Olson Real Est., 229 Neb. 249, 426
N.W.2d 504 (1988).
39 Baye v. Airlite Plastics Co., supra note 36; Wolf v. Walt, 247 Neb. 858, 530
N.W.2d 890 (1995).
40 Southern Lumber & Coal v. M. P. Olson Real Est., supra note 38.
41 Wolf v. Walt, supra note 39.
ChRISTIAN v. SmITh 	883
Cite as 276 Neb. 867

The first element of the test, inadequate capitalization,
means capitalization very small in relation to the nature
of the business of the corporation and the risks entailed.42
Inadequate capitalization is measured at the time of incor‑
poration.43 A corporation which was adequately capitalized
when formed but which has suffered losses is not necessarily
undercapitalized.44 Undercapitalization presents a question of
fact that turns on the nature of the business of the particular
corporation.45 In the case at hand, the record does not estab‑
lish any evidence regarding undercapitalization at the time
of incorporation.
The second factor used to determine whether a corporation’s
identity should be disregarded is whether the corporation was
insolvent at the time the debt was incurred.46 A corporation is
insolvent if it is unable to pay its debts as they become due
in the usual course of its business, or if it has an excess of
liabilities of the corporation over its assets at a fair valuation.47
Whether a corporation is insolvent is usually a question of
fact.48 In this case, the record does not contain any evidence
indicating that B4 was insolvent.
The third factor of the test to determine whether the cor‑
porate veil should be pierced is evidence of a diversion by
the shareholder or shareholders of corporate funds or assets
to their own or other improper uses. When a principal share‑
holder appropriates and uses corporate funds and property for
his personal purposes and thereby defrauds and causes dam‑
ages to creditors, the shareholder can be held individually
liable for corporate debt.49 There was no evidence adduced at
42 Id.
43 Id.
44 Southern Lumber & Coal v. M. P. Olson Real Est., supra note 38.
45 Id.
46 Wolf v. Walt, supra note 39.
47 Id.
48 J. L. Brock Bldrs., Inc. v. Dahlbeck, supra note 4.
49 See Scribner Grain & Lumber Co. v. Wortman, 204 Neb. 92, 281 N.W.2d
394 (1979).
884 	276 NEBRASkA REPORTS

trial to show that Smith diverted funds from B4 for his per‑
sonal purposes.
We turn now to the fourth prong of the test. If the corpora‑
tion is a facade for the personal dealings of the shareholder
and the operations of the corporation are carried on by the
shareholder in disregard of the corporate entity, the shareholder
may be individually liable for corporate debt.50 The separate
entity concept of the corporation may be disregarded where
the corporation is a mere shell, serving no legitimate business
purpose, and is used as an intermediary to perpetuate fraud on
the creditors.51 In this case, Smith testified that he is the sole
shareholder, officer, and member of the board of directors of
B4. But this, in itself, is insufficient to show that B4 was a
mere shell to perpetrate fraud.
We conclude that Christian presented insufficient evidence
at trial to show that B4’s corporate entity should be disre‑
garded. Therefore, we find no merit to Christian’s assignment
of error.
(b) Damages
We next turn to the issue of damages. Christian claims that
the district court erred in not ruling as a matter of law that
the damages were set by the $168,000‑plus‑interest judgment
against Christian in prior litigation with CNBW. We agree.
Where the amount of damages allowed by a jury is clearly
inadequate under the evidence, it is error for the trial court
to refuse to set the verdict aside.52 In this case, the uncon‑
troverted evidence established that the damages Christian
suffered as a result of the breach of the oral agreement were
equal to the CNBW judgment of $168,000 plus interest at 16
percent. Evidence on damages was not in dispute. The jury,
however, awarded only $130,000 to Christian. As a result,
we conclude as a matter of law that the verdict should be in
50 Wolf v. Walt, supra note 39. See J. L. Brock Bldrs., Inc. v. Dahlbeck, supra
note 4.
51 Carpenter Paper Co. v. Lakin Meat Processors, 231 Neb. 93, 435 N.W.2d
179 (1989).
52 Springer v. Bohling, supra note 8.
ChRISTIAN v. SmITh 	885
Cite as 276 Neb. 867

the sum of $168,000 plus interest at 16 percent from January
5, 2006.
VI. CONCLUSION
For each of the above reasons, we affirm as modified.
A ffirmed As modified.
JeremiAh C. Johnson, Appellee , v. beverly neth ,
direCtor , depArtment of motor vehiCles
of the stAte of nebrAskA, AppellAnt.
758 N.W.2d 395
Filed December 12, 2008. 	No. S‑07‑530.
1. Administrative Law: Motor Vehicles: Jurisdiction: Proof: Appeal and Error.
Whether the sworn report of a law enforcement officer is sufficient to confer
jurisdiction on the Department of motor Vehicles is a question of law, and
an appellate court reaches a conclusion independent of that reached by the
lower court.
2. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs. In an administrative license revocation proceeding,
the sworn report of the arresting officer must, at a minimum, contain the informa‑
tion specified in the applicable statute, in order to confer jurisdiction.
3. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Affidavits: Words and Phrases. Sworn reports in administrative license revoca‑
tion proceedings are, by definition, affidavits.
4. Affidavits: Words and Phrases. An affidavit is a written or printed declaration
or statement of facts, made voluntarily, and confirmed by the oath or affirmation
of the party making it.
5. Affidavits: Proof: Public Officers and Employees. An affidavit must bear on its
face, by the certificate of the officer before whom it is taken, evidence that it was
duly sworn to by the party making the same.
6. Public Officers and Employees: Evidence. The certification of a notary public’s
official duties, over his or her signature and official seal, is received by the courts
as presumptive evidence of the facts certified.
7. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Jurisdiction. A sworn report that fails to fully comply with the requirements of
the administrative license revocation statutes does not confer jurisdiction upon the
director of the Department of motor Vehicles to revoke a motorist’s license.
Appeal from the District Court for Buffalo County: John p.
iCenogle, Judge. Affirmed.
886 	276 NEBRASkA REPORTS