Henderson State Co. v. Garrelts

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
Henderson State Company, a Nebraska banking
corporation, plaintiff, appellee, v. Todd W.
Garrelts and Nancy J. Garrelts, defendants
and third-party plaintiffs, appellants, and
Kevin D. Postier, et al., third-party
defendants, appellees.
___ N.W.3d ___
Filed July 18, 2025. 	No. S-24-839.
1. Appeal and Error. Errors assigned but not argued will not be addressed
by an appellate court.
2. Standing: Appeal and Error. An appellate court reviews the lower
court’s factual findings on standing for clear error and reviews de novo
the ultimate question whether the plaintiff has standing.
3. Contracts: Guaranty. A guaranty is interpreted using the same general
rules as are used for other contracts.
4. Contracts: Judgments: Appeal and Error. The meaning of a contract
is a question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations
made by the court below.
5. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
6. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
7. Actions: Parties: Standing: Jurisdiction. Whether a party who com-
mences an action has standing and is therefore the real party in interest
presents a jurisdictional issue.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:55 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
8. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
9. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
10. Summary Judgment: Proof. The party moving for summary judg-
ment must make a prima facie case by producing enough evidence to
show the movant would be entitled to judgment if the evidence were
uncontroverted at trial. If the burden of proof at trial would be on the
nonmoving party, then the party moving for summary judgment may sat-
isfy its prima facie burden either by citing to materials in the record that
affirmatively negate an essential element of the nonmoving party’s claim
or by citing to materials in the record demonstrating that the nonmoving
party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim. If the moving party makes a prima facie case,
the burden shifts to the nonmovant to produce evidence showing the
existence of a material issue of fact that prevents judgment as a matter
of law.
11. Assignments: Actions: Parties: Standing: Jurisdiction: Proof. An
assignee can establish standing to bring an action in its own name, and
thus show the court had subject matter jurisdiction, if it proves by the
greater weight of the evidence the existence of a written assignment
under Neb. Rev. Stat. § 25-304 (Reissue 2016).
12. Contracts: Guaranty: Debtors and Creditors: Words and Phrases. A
guaranty is a contract by which the guarantor promises to make payment
if the principal debtor defaults.
13. Contracts: Guaranty: Appeal and Error. To determine the obligations
of the guarantor, an appellate court relies on general principles of con-
tract and guaranty law.
14. Contracts: Guaranty: Intent. Because a guaranty is a contract, it must
be understood in light of the parties’ intentions and the circumstances
under which the guaranty was given.
15. Guaranty: Liability. When the meaning of a guaranty is ascertained, or
its terms are clearly defined, the liability of the guarantor is controlled
absolutely by such meaning and limited to the precise terms.
16. Contracts: Guaranty: Words and Phrases. A guaranty is a collateral
undertaking to answer for the payment of debt or the performance of a
contract or duty, and when a guaranty is unambiguous, a court does not
vary its terms by construing it with another instrument.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
17. Guaranty. The undertaking of a guaranty is independent of the promise
of the principal obligation.
18. Fraud: Proof. To prove fraudulent concealment, a plaintiff must prove
these elements: (1) The defendant had a duty to disclose a material fact;
(2) the defendant, with knowledge of the material fact, concealed the
fact; (3) the material fact was not within the plaintiff’s reasonably dili-
gent attention, observation, and judgment; (4) the defendant concealed
the fact with the intention that the plaintiff act or refrain from acting in
response to the concealment or suppression; (5) the plaintiff, reasonably
relying on the fact or facts as the plaintiff believed them to be as the
result of the concealment, acted or withheld action; and (6) the plaintiff
was damaged by the plaintiff’s action or inaction in response to the
concealment.
19. Contracts: Principal and Surety: Debtors and Creditors. Where the
surety makes no inquiry on the subject, the duty of disclosure as to
facts increasing the risks of the undertaking depends upon the circum-
stances of the case. Generally, the creditor may assume that the surety
has obtained information from other sources or has chosen to assume
whatever risks may be involved. A duty of disclosure may arise when
the creditor knows or has good grounds for believing (1) the surety is
being deceived or misled or (2) the surety has been induced to enter the
contract in ignorance of facts materially increasing his or her risks, of
which the creditor has knowledge and which the creditor has the oppor-
tunity to disclose prior to the surety’s acceptance of the undertaking.
20. ____: ____: ____. Deception or ignorance of the facts is not presumed;
there must be some evidence that would put the lender on notice that the
surety was being deceived or was ignorant of the facts.
21. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
22. Fraud: Proof. A fraudulent misrepresentation claim requires a plaintiff
to establish the following elements: (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 inten-
tion that the plaintiff should rely on it; (5) the plaintiff did so rely on it;
and (6) the plaintiff suffered damage as a result.
23. Conspiracy: Words and Phrases. A civil conspiracy is a combination
of two or more persons to accomplish by concerted action an unlaw-
ful or oppressive object, or a lawful object by unlawful or oppressive
means.
24. Actions: Conspiracy: Torts: Words and Phrases. A “conspiracy” is
not itself a separate and independent tort, but, rather, depends upon the

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Nebraska Supreme Court Advance Sheets
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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
existence of an underlying tort. Without such underlying tort, there can
be no cause of action for conspiracy to commit the tort.
25. Contracts: Parties. The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties do anything
which will injure the right of another party to receive the benefit of
the contract.
26. ____: ____. The nature and extent of an implied covenant of good faith
and fair dealing are measured in a particular contract by the justifiable
expectations of the parties. Where one party acts arbitrarily, capriciously,
or unreasonably, that conduct exceeds the justifiable expectations of the
second party.
27. Contracts. The question of a party’s good faith in the performance of a
contract is a question of fact.
28. Summary Judgment. The mere existence of some alleged factual dis-
pute between the parties will not defeat an otherwise properly supported
motion for summary judgment; only disputes over facts that under the
governing law might affect the outcome of the suit will properly pre-
clude the entry of summary judgment.
29. Decedents’ Estates. Generally, termination of appointment of a personal
representative ends the right and power pertaining to the office of per-
sonal representative.
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed.
Keith A. Harvat, of Houghton Bradford Whitted, P.C.,
L.L.O., for appellants.
Lindsay K. Lundholm and James T. Schmidt, of Baird Holm,
L.L.P., for appellees.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ.
Cassel, J.
I. INTRODUCTION
This appeal arises from a bank holding company’s action
against two guarantors on their respective personal guaranties
of an entity’s debts. The district court entered summary judg-
ment against the guarantors. It rejected their argument that

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
the bank holding company lacked standing and determined
that the plain language of the guaranties controlled. It also
refused an attempt to shift liability to an estate. The guaran-
tors appeal. Because we find no error or abuse of discretion,
we affirm.
II. BACKGROUND
1. Guaranties
The action proceeded against a husband and wife, Todd W.
Garrelts and Nancy J. Garrelts. The Garrelts were members of
Midwest Auger Distributing, L.L.C. (Midwest Auger). David
F. Lynn, who is now deceased, asked the Garrelts to join him
in forming Midwest Auger in the spring of 2015. Based on
their conversations with Lynn, the Garrelts understood that
Midwest Auger would purchase the accounts receivable of
Peck Manufacturing, Inc. (Peck), another entity owned by
Lynn, and that the Garrelts would receive a portion of Midwest
Auger’s profit.
On May 21, 2015, the Garrelts signed identical personal
guaranties for the debts that Midwest Auger owed to Henderson
State Bank (HSB). The guaranties expressly included Midwest
Auger’s future indebtedness and specifically referred to a
“promissory note . . . from Midwest Auger . . . in the amount of
$1,500,000.00.” We will discuss the loan in more detail below.
Each guaranty consisted of four pages, and the Garrelts’
signatures appear at the bottom of the third page. The record
indicates that Lynn and his wife also signed identical personal
guaranties, but theirs are not at issue here.
Several 	provisions 	in 	the 	guaranties 	are 	relevant. 	The
Garrelts represented that they were “unconditionally liable
under this [g]uaranty, regardless of whether or not [HSB]
pursue[d] any of [its] remedies against [Midwest Auger],
against any other . . . guarantor . . . or against any [p]roperty.”
They said that HSB “may sue [them] alone, or anyone else
who is obligated on this [g]uaranty, or any [or all of them]
together, to collect the [d]ebt.” They also represented that their

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
“liability is not conditioned on the signing of this [g]uaranty
by any other person and further is not subject to any condition
not expressly set forth in this [g]uaranty or any instrument
executed in connection with the [d]ebt.” They “consent[ed] to
all renewals, extensions, modifications and substitutions of the
[d]ebt” made by HSB, in its discretion, “without further notice
to [them].”
Additionally, the Garrelts “agree[d] that this is an absolute
and unconditional [g]uaranty,” which “will remain binding
on [them], whether or not there are any [d]ebts outstanding,
until [HSB] ha[s] actually received written notice of [their]
revocation.” They agreed that “if any other person signing this
[g]uaranty provides a notice of revocation to [HSB], [they]
will still be obligated under this [g]uaranty until [they] provide
such a notice of revocation to [HSB].” And, “If any other per-
son signing this [g]uaranty dies . . . , such fact will not affect
[their] obligations under this [g]uaranty.”
The Garrelts further agreed that
any [p]roperty may be assigned, exchanged, released in
whole or in part or substituted without notice to [them]
and without defeating, discharging or diminishing [their]
liability. [Their] obligation is absolute and [HSB’s] fail-
ure to perfect any security interest or any act or omission
by [HSB] which impairs the [p]roperty will not relieve
[them] or [their] liability under this [g]uaranty. [HSB is]
under no duty to preserve or protect any [p]roperty until
[HSB is] in actual or constructive possession.
The guaranties contemplated that HSB may take certain actions,
including “releas[ing], substitut[ing] or impair[ing] any [p]rop-
erty,” and that the Garrelts “generally waive[d] defenses that
may be available based on [HSB’s] actions or based on the
status of a party to the [d]ebt or this [g]uaranty.” They waived
“all claims for loss or damage caused by [HSB’s] acts or omis-
sions where [it] acted reasonably and in good faith.”
Also 	relevant 	here, 	the 	Garrelts 	represented 	and 	war-
ranted that the guaranties were “entered into at the request

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
of [Midwest Auger]” and that the Garrelts were “satisfied
regarding [Midwest Auger’s] financial condition and existing
indebtedness, authority to borrow and the use and intended use
of all [d]ebt proceeds.” They further represented and warranted
that they “ha[d] not relied on any representations or omissions
from [HSB] or any information provided by [HSB] respecting
[Midwest Auger], [its] financial condition and existing indebt-
edness, [its] authority to borrow or [its] use and intended use
of all [d]ebt proceeds.”
The Garrelts expressly acknowledged that HSB was relying
on the guaranties in extending credit to Midwest Auger and
that they signed the guaranties “to induce [HSB] to extend such
credit.” The guaranties stated that HSB “may rely conclusively
on a continuing warranty” that the Garrelts “continue[d] to be
benefited by this [g]uaranty and [HSB] will have no duty to
inquire into or confirm the receipt of any such benefits, and this
[g]uaranty will be effective and enforceable by [HSB] without
regard to the receipt, nature or value of any such benefits.”
Finally, the guaranties reiterated that if HSB “assign[ed] any
of the [d]ebts, [it] may assign all or any part of this [g]uaranty
without notice to [them] or [their] consent, and this [g]uaranty
will inure to the benefit of [HSB’s] assignee to the extent of
such assignment.”
2. Loan
HSB loaned Midwest Auger $1.5 million as a “2015 Business
Operating Line of Credit.” On May 21, 2015, Lynn signed a
promissory note for that amount that listed HSB as the lender
and Midwest Auger as the borrower. The note stated that a final
payment of the entire unpaid outstanding balance of principal
and interest would be due in May 2016. By July 31, 2015, the
line of credit was fully extended, and it became necessary that
Midwest Auger repay HSB for the amounts advanced to it.
Midwest Auger failed to do so.
Beginning in 2016, Midwest Auger extended the maturity
date four separate times. A renewal note and three subsequent

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
agreements to that effect were signed by Kevin D. Postier,
who was the president of HSB, and Lynn, on behalf of
Midwest Auger.
Following the final extension agreement, HSB assigned its
rights under the loan documents, including the personal guar-
anties, to HSB’s parent company, Henderson State Company
(HSC). HSC is a bank holding company that is a separate and
distinct legal entity from HSB. As part of the exchange, HSC
paid to HSB the principal amount of the loan plus interest due
and owing. The assignment was memorialized in writing.
In 2018, Midwest Auger failed to make the required pay-
ment on the renewal note, and HSC sent the Garrelts a letter
demanding payment. The Garrelts did not make payments.
3. Lynn’s Death and Probate Proceedings
The record indicates that Lynn died in March 2020 and that
a probate case was filed in the county court in May. That court
appointed Eric B. Schnurer, a creditor of the estate, as the per-
sonal representative.
The estate was closed, and the court found “good cause to
terminate jurisdiction of the [p]ersonal [r]epresentative,” on
August 21, 2023—after the instant litigation commenced but
well before the entry of summary judgment.
4. HSC Sues Garrelts
In May 2021, HSC sued the Garrelts for breach of guaranty.
HSC did not attempt to file a claim in the probate case and did
not sue Lynn’s wife.
The Garrelts’ answer to the operative amended complaint
set forth counterclaims, styled as “[c]ause[s] of [a]ction,” for
(1) fraudulent concealment, (2) fraudulent misrepresentation,
(3) civil conspiracy, and (4) breach of the implied covenant
of good faith and fair dealing. The Garrelts brought the same
claims against four additional parties, whom they named as
third-party defendants—HSB, Postier, Schnurer, and Lynn’s
wife. For convenience, we will refer to all causes of action

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
asserted by the Garrelts against HSC, HSB, and Postier (col-
lectively the Bank) as the “counterclaims” from here on.
The Garrelts’ general theory of the case was that HSB,
Postier, and Lynn conspired to fraudulently conceal and mis-
represent the “tenuous financial situation” of Lynn and various
entities he owned, including Peck. The Garrelts asserted that
unbeknownst to them, Midwest Auger was created because
HSB was “unwilling to loan any further money” to Lynn’s
other entities. They claimed that they “did not know and could
not have known the extent of the financial dealings” between
Lynn, his entities, and HSB. They alleged that HSB and
Postier failed to “professionally perform their obligations and
duties” owed to the Garrelts and that, as a result, the Garrelts
were denied their “justified expectations contained within the
Midwest Auger [g]uaranty.”
As part of their respective answers to the counterclaims,
the Bank alleged that neither HSB nor Postier had a legal
duty to disclose the financial situation of Lynn’s entities to the
Garrelts or to advise the Garrelts regarding their and Midwest
Auger’s financial decisions. The Bank further alleged that a
Nebraska banking statute 1 “prohibited [HSB] and . . . Postier
from disclosing customer information” in these circumstances.
5. Summary Judgment
Following discovery, the Garrelts and the Bank filed motions
for summary judgment. The court held a hearing, during which
it received evidence from both parties. We will discuss the
parties’ motions and evidence, as necessary, in the analy-
sis section.
The district court entered a written order overruling the
Garrelts’ motion and sustaining the Bank’s motion, finding
the 	Garrelts 	were 	“unconditionally 	and 	absolutely 	liable”
for Midwest Auger’s debt under the guaranties. It entered
1 See Neb. Rev. Stat. § 8-1401(1) (Reissue 2022) (addressing disclosure of
confidential records or information).

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
judgment in favor of HSC and against the Garrelts in the
amount of $1.5 million plus accrued and unpaid interest.
6. Subsequent Filing “Confessing”
Judgment Against Estate
After the entry of the adverse summary judgment, the
Garrelts’ counsel filed a document in which Schnurer, pur-
portedly in his capacity as personal representative of Lynn’s
estate, “confesse[d] and consent[ed]” to the entry of judgment
against the estate in the amount of $1.5 million plus accrued
and unpaid interest. The filing was styled as a “Confession of
Judgment and Consent to Entry of Judgment by Confession.”
It was both dated and filed on July 26, 2024.
In a subsequent order, the court concluded that this filing was
a “nullity” and had “no legal force and effect.” It “reaffirm[ed]
in full” its summary judgment order and dismissed all remain-
ing causes of action.
The Garrelts filed a timely appeal, which we moved to our
docket. 2 No briefs were filed by Schnurer or Lynn’s wife, and
those parties are not otherwise participating in the appeal.
III. ASSIGNMENTS OF ERROR
The Garrelts assign 12 errors. They allege, consolidated and
restated, that the district court erred in entering an adverse
summary judgment upon concluding that (1) HSC had stand-
ing, (2) the Garrelts were liable for Midwest Auger’s debts
pursuant to the personal guaranties, (3) the Garrelts failed
to produce evidence showing a genuine issue of material
fact regarding the counterclaims, and (4) the “Confession of
Judgment and Consent to Entry of Judgment by Confession”
filing was a legal nullity.
[1] The Garrelts further assign that the district court erred in
adopting, “virtually verbatim,” a proposed order prepared and
submitted by the Bank’s counsel; relying on the parol evidence
2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
rule “when it is the banking practices, administration and mon-
itoring of [the Bank] which are at issue”; and overruling the
Garrelts’ “Motion for New Trial.” Because their brief contains
no corresponding argument concerning these alleged errors,
we do not consider them. Errors assigned but not argued will
not be addressed by an appellate court. 3
IV. STANDARD OF REVIEW
[2] An appellate court reviews the lower court’s factual
findings on standing for clear error and reviews de novo the
ultimate question whether the plaintiff has standing. 4
[3,4] A guaranty is interpreted using the same general rules
as are used for other contracts. 5 The meaning of a contract is
a question of law, in connection with which an appellate court
has an obligation to reach its conclusions independently of the
determinations made by the court below. 6
[5,6] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. 7 An appellate court reviews the district court’s
grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. 8
3 City of Omaha v. Professional Firefighters Assn., 309 Neb. 918, 963
N.W.2d 1 (2021).
4 See Boone River, LLC v. Miles, 314 Neb. 889, 994 N.W.2d 35 (2023),
modified on denial of rehearing 315 Neb. 413, 996 N.W.2d 629.
5 Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906
(2016).
6 White v. White, 316 Neb. 616, 6 N.W.3d 204 (2024).
7 Galloway v. Husker Auto Group, 318 Neb. 178, 14 N.W.3d 218 (2024).
8 Main St Properties v. City of Bellevue, 318 Neb. 116, 13 N.W.3d 911
(2024).

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
V. ANALYSIS
We divide our analysis into four sections guided by the
restated assignments of error set forth above.
We first address the issue raised by the Garrelts’ motion for
summary judgment—an assertion that HSC lacked standing.
This in turn depends upon an evidentiary ruling admitting a
written assignment from HSB to HSC.
We then turn to two overarching issues relating to the
Bank’s motion for summary judgment: the Garrelts’ liability
under the personal guaranties and the evidence pertaining to
the counterclaims. There, contract interpretation principles and
the customary standards regarding review of summary judg-
ments apply.
Finally, we consider the legal significance, if any, of the
filing purportedly confessing judgment against the estate.
1. HSC Had Standing as Assignee
[7] Whether a party who commences an action has standing
and is therefore the real party in interest presents a jurisdic-
tional issue. 9 For that reason, we consider the Garrelts’ stand-
ing argument first.
(a) Additional Background
The Garrelts moved for summary judgment solely on the
ground that HSC lacked standing to sue. They relied upon
Neb. Rev. Stat. § 25-304 (Reissue 2016), which states, in
part: “Assignees of choses in action assigned for the purpose
of collection may sue on any claim assigned in writing.”
They argued that there had been no production of a written
assignment from HSB to HSC of HSB’s interest in the loan
documents, including the personal guaranties.
In response, the Bank offered affidavits of Postier and the
written document memorializing the assignment. The Garrelts
argued that the Bank should not be permitted to rely on
9 Boone River, LLC v. Miles, supra note 4.

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
the written assignment, because it was not produced during
discovery.
The court rejected their argument and concluded that the
written assignment was uncontroverted evidence establishing
that HSC had standing. It overruled the Garrelts’ motion for
summary judgment.
(b) Discussion
(i) No Abuse of Discretion in Admitting
Written Assignment
Although the Garrelts raise a “factual challenge” to the
standing of HSC, 10 their argument hinges on the court’s evi-
dentiary ruling. They essentially argue that because the Bank
failed to produce the written assignment sooner, the court
should have excluded it.
[8,9] A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute an
abuse of that discretion. 11 A judicial abuse of discretion exists
if the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition. 12
We conclude that there was no abuse of discretion in admit-
ting the written assignment. The Garrelts raised lack of stand-
ing as an affirmative defense in their answer to HSC’s amended
complaint, and they raised it again on summary judgment. But
we see no error in the court’s reasoning that they did not
directly request production of the written assignment during
discovery. Nothing in the court’s reasons or rulings is clearly
untenable, unfairly depriving the Garrelts of a substantial right
and denying just results in this matter.
10 See Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d
856 (2020).
11 In re Masek Family Trust, 318 Neb. 268, 15 N.W.3d 379 (2025).
12 Backhaus v. Backhaus, 318 Neb. 891, 20 N.W.3d 81 (2025).

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
The Garrelts also argue that the evidence was inadmissible
based upon cases 13 that involved inconsistent prior testimony
of a party. They assert that Postier’s affidavits were “‘materi-
ally different’” 14 from his earlier deposition testimony and
that the evidence should have been disregarded as a matter of
law. For example, they draw our attention to Postier’s varied
use of the terms “sold,” “transferred,” and “assigned” when
referring to the exchange between HSB and HSC.
We disagree that Postier’s affidavits and deposition testi-
mony were materially different. Although he did not refer to
the exchange exclusively as an “assignment,” he did not need
to do so in order for the evidence to be admissible. Nor was it
necessary for the Bank to produce additional evidence corrobo-
rating the assignment. To the extent that the Garrelts argue that
there was a “change in [Postier’s] testimony,” 15 it was immate-
rial to HSC’s standing in these circumstances.
(ii) Review of Factual Finding and
Ultimate Question of Standing
Having concluded that there was no abuse of discretion in
admitting the written assignment, we need not decide whether
to apply the standard of review for a “factual challenge” or the
one applying to summary judgment. The Garrelts’ challenge
fails under either standard.
Under the “factual challenge” standard, we would review the
district court’s finding that an assignment from HSB to HSC
exists for clear error. Here, we see none.
Review under the summary judgment standard fares no bet-
ter for the Garrelts. To explain why this is so, we recall the
applicable summary judgment framework.
13 See, Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808
(2019); Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313
N.W.2d 208 (1981).
14 Brief for appellants at 42.
15 Id.

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HENDERSON STATE CO. v. GARRELTS
Cite as 319 Neb. 485
[10] The party moving for summary judgment must make
a prima facie case by producing enough evidence to show the
movant would be entitled to judgment if the evidence were
uncontroverted at trial. If the burden of proof at trial would
be on the nonmoving party, then the party moving for sum-
mary judgment may satisfy its prima facie burden either by
citing to materials in the record that affirmatively negate an
essential element of the nonmoving party’s claim or by citing
to materials in the record demonstrating that the nonmoving
party’s evidence is insufficient to establish an essential element
of the nonmoving party’s claim. If the moving party makes a
prima facie case, the burden shifts to the nonmovant to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law. 16
To support the Garrelts’ motion for summary judgment, they
relied upon the absence of a written assignment. But the Bank
adduced evidence of a written assignment. We have already
determined that there was no abuse of discretion in admitting
it. Thus, for purposes of the Garrelts’ motion for summary
judgment, they failed to prove that they were entitled to judg-
ment as a matter of law. The district court correctly overruled
their motion.
[11] We reach an independent conclusion that HSC had
standing. An assignee can establish standing to bring an action
in its own name, and thus show the court had subject matter
jurisdiction, if it proves by the greater weight of the evidence
the existence of a written assignment under § 25-304. 17 HSC
did so.
2. Garrelts Were Liable Under Guaranties
In this section and the next, we address the restated assign-
ments of error pertaining to the Bank’s motion for sum-
mary judgment. We begin with the Garrelts’ contention that
16 Galloway v. Husker Auto Group, supra note 7.
17 See Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938
N.W.2d 329 (2020).

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the court erred in finding that they were liable for Midwest
Auger’s debt under the personal guaranties.
[12-15] A guaranty is a contract by which the guarantor
promises to make payment if the principal debtor defaults. 18 To
determine the obligations of the guarantor, an appellate court
relies on general principles of contract and guaranty law. 19
Because a guaranty is a contract, it must be understood in light
of the parties’ intentions and the circumstances under which
the guaranty was given. 20 When the meaning of a guaranty is
ascertained, or its terms are clearly defined, the liability of the
guarantor is controlled absolutely by such meaning and limited
to the precise terms. 21
The terms of the personal guaranties are clearly defined and
drive the conclusion that the Garrelts were personally liable
for Midwest Auger’s debts, including the $1.5 million loan.
Because we provided detailed quotations in the background
section, we summarize relevant portions here.
Under the express terms of the personal guaranties, the
Garrelts each agreed to be personally liable for the debts of
Midwest Auger. The guaranties specifically referred to the
promissory note for the $1.5 million loan. They provided
that “fail[ure] to make a payment in full when due” would be
deemed a default. The Garrelts’ liability was not contingent
upon the Bank’s seeking to enforce the liability of other guar-
antors. Nor did it depend upon the Bank’s giving notice to the
Garrelts of renewals or extensions. Although the guaranties
were revocable by the Garrelts in writing, there is no evidence
of such revocation occurring at any point. The guaranties con-
templated future assignment of HSB’s interest to an assignee,
without notice to the Garrelts, and enforcement of the guaran-
ties by the assignee.
18 Cattle Nat. Bank & Trust Co. v. Watson, supra note 5.
19 Id.
20 Braunger Foods v. Sears, 286 Neb. 29, 834 N.W.2d 779 (2013).
21 Cattle Nat. Bank & Trust Co. v. Watson, supra note 5.

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[16,17] The Garrelts do not argue that the guaranties are
ambiguous, but it seems they would have us ascertain the
meaning of the guaranties from other documents. Among other
things, they discuss a security agreement, a “Loan Memo,” 22
and an expert witness’ report. We decline to do so. A guaranty
is a collateral undertaking to answer for the payment of debt
or the performance of a contract or duty, and when a guaranty
is unambiguous, a court does not vary its terms by constru-
ing it with another instrument. 23 Moreover, the undertaking
of a guaranty is independent of the promise of the principal
obligation. 24
The court did not err in entering summary judgment against
the Garrelts for breach of guaranty.
3. Uncontroverted Evidence
Defeated Counterclaims
The Garrelts contend that the court erred in granting sum-
mary judgment for the Bank on the counterclaims.
(a) Additional Background
Before addressing the Garrelts’ specific counterclaims, we
provide additional background. These facts are recited from
the parties’ evidence and are viewed in the light most favorable
to the Garrelts, including the inferences that can reasonably be
drawn in their favor.
Prior to 2015, the Garrelts had no affiliation or business with
HSB. After signing the guaranties, their interactions with HSB
were limited to HSB’s demanding payment on the loan. Lynn
and his wife were existing customers of HSB and had previ-
ously used HSB to finance other entities, including Peck.
Postier was one of the individuals overseeing HSB’s loans
to Midwest Auger and Lynn’s other entities. In 2015, Lynn
informed Postier of “his and the Garrelts’ joint request” that
22 Brief for appellants at 48.
23 Braunger Foods v. Sears, supra note 20.
24 Id.

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HSB extend a line of credit to the entity that would become
Midwest Auger. Postier did not have any role in or discussions
with Lynn about the plan that Lynn formulated for the new
entity. Postier responded that HSB would only extend a line of
credit to Midwest Auger if it were subject to the unconditional
guaranties of the Garrelts, Lynn, and Lynn’s wife, “so HSB’s
loan would be adequately secured.”
Before signing the personal guaranties, the Garrelts did
not attempt to verify, through HSB or otherwise, the financial
status of Lynn or his other entities. Postier understood Nancy
Garrelts to be an “intelligent and well-educated attorney,” and
he described Todd Garrelts as a “wealthy and sophisticated
farmer with a large and successful agriculture operation.”
Postier understood the Garrelts to be “sophisticated business
people” who were “more than capable” of evaluating any busi-
ness opportunities they entered into with Lynn.
In addition to signing the guaranties, the Garrelts signed a
“Limited Liability Company Authorization Resolution” that
designated Lynn as the “Manager or Designated Member” of
Midwest Auger. The authorization directed HSB to communi-
cate with and take directions from Lynn pursuant to the busi-
ness affairs of Midwest Auger, including, but not limited to,
the line of credit. The Garrelts did not dispute that Lynn was
authorized to direct HSB to draw from the line of credit.
At all relevant times, the Garrelts had online access to the
bank accounts of Midwest Auger through HSB and were able
to follow all financial transactions of Midwest Auger, if they
chose to exercise that oversight. It is unclear to the Garrelts
what happened to the $1.5 million loaned to Midwest Auger,
and there is nothing in the record showing that it was used to
purchase the accounts receivable of Peck.
In opposition to the Bank’s motion for summary judg-
ment, the Garrelts offered, among other things, a 15-page
report in which their expert witness analyzed the “banking
practices” of HSB and Postier. The expert described the focus
of the report as the “business transactions by HSB for both

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P[eck] and [Midwest Auger] from May 19, 2015 forward.”
After reviewing documents provided by HSB, he opined, in
pertinent part: “HSB allowed loan advances to occur without
appropriate collateral pledged to support the loan advances
and failed to administer or monitor the loan relationship with
[Midwest Auger] as a secured loan transaction in customary
banking practices.”
(b) Discussion
(i) Fraudulent Concealment
[18] To prove fraudulent concealment, a plaintiff must prove
these elements: (1) The defendant had a duty to disclose a
material fact; (2) the defendant, with knowledge of the material
fact, concealed the fact; (3) the material fact was not within the
plaintiff’s reasonably diligent attention, observation, and judg-
ment; (4) the defendant concealed the fact with the intention
that the plaintiff act or refrain from acting in response to the
concealment or suppression; (5) the plaintiff, reasonably rely-
ing on the fact or facts as the plaintiff believed them to be as
the result of the concealment, acted or withheld action; and (6)
the plaintiff was damaged by the plaintiff’s action or inaction
in response to the concealment. 25
The Garrelts essentially argue that HSB and Postier had
a duty to disclose to them the history and financial infor-
mation of Lynn and his various entities. We note that the
terms of the guaranties did not impose a duty on the Bank
to disclose to them information regarding Lynn, his entities,
or Midwest Auger. Rather, the terms specifically stated that
Midwest Auger had asked them to enter the guaranties, that
HSB made no representations upon which the Garrelts relied,
and that the Garrelts were satisfied regarding Midwest Auger’s
financial condition, existing indebtedness, and intended use of
the debt proceeds.
25 Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb. 997,
792 N.W.2d 484 (2011), disapproved on other grounds, State v. Boche,
294 Neb. 912, 885 N.W.2d 523 (2016).

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[19] Our prior cases provide guidance on this issue. We have
held that where the surety makes no inquiry on the subject, the
duty of disclosure as to facts increasing the risks of the under-
taking depends upon the circumstances of the case. Generally,
the creditor may assume that the surety has obtained informa-
tion from other sources or has chosen to assume whatever risks
may be involved. A duty of disclosure may arise when the
creditor knows or has good grounds for believing (1) the surety
is being deceived or misled or (2) the surety has been induced
to enter the contract in ignorance of facts materially increas-
ing his or her risks, of which the creditor has knowledge and
which the creditor has the opportunity to disclose prior to the
surety’s acceptance of the undertaking. 26
Even if we assume, without deciding, that the Bank had an
opportunity to provide the Garrelts with what the Bank refers
to as the “confidential banking information” 27 of Lynn and his
other entities, the Garrelts did not ask the Bank for such infor-
mation. Moreover, they failed to produce evidence showing a
dispute of material fact regarding the existence of any such
duty of the Bank.
[20] There is nothing in the evidence to suggest that the
Bank knew that the Garrelts were somehow deceived or mis-
led or that they had been induced to enter the guaranties in
ignorance of facts materially increasing their risks. Postier
understood the Garrelts to be successful business people who
were “more than capable” of evaluating the situation. The
terms of the guaranties also run contrary to any such sugges-
tion. We have said that deception or ignorance of the facts is
not presumed; there must be some evidence that would put
the lender on notice that the surety was being deceived or was
26 See McCormack v. First Westroads Bank, 238 Neb. 881, 473 N.W.2d 102
(1991).
27 Brief for appellees at 21.

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ignorant of the facts. 28 The Garrelts had the burden of produc-
ing such evidence, 29 and they failed to meet it.
[21] It may be that this claim fails on additional elements,
but we need not analyze it further. An appellate court is not
obligated to engage in an analysis that is not needed to adjudi-
cate the controversy before it. 30
(ii) Fraudulent Misrepresentation
[22] A fraudulent misrepresentation claim requires a plain-
tiff to establish the following elements: (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. 31 In fraudulent misrepre-
sentation cases, whether the plaintiff exercised ordinary pru-
dence is relevant to whether the plaintiff justifiably relied on
the misrepresentation when the means of discovering the truth
was in the plaintiff’s hands. 32
The Bank points out multiple potential problems with the
Garrelts’ claim. Among them is the Garrelts’ testimony that
they did not rely upon any representation made by the Bank
when deciding to personally guaranty Midwest Auger’s debt.
Likewise, that fact is reflected under the express terms of the
guaranties. This claim fails.
Another argument made by the Bank is that the Garrelts
failed to exercise ordinary prudence. Because we have already
determined that the Garrelts cannot prevail, we need not address
the Bank’s remaining arguments.
28 Hastings State Bank v. Misle, 282 Neb. 1, 804 N.W.2d 805 (2011).
29 See id.
30 In re Estate of Harchelroad, 318 Neb. 573, 18 N.W.3d 103 (2025).
31 Brauer v. Hartmann, 313 Neb. 957, 987 N.W.2d 604 (2023).
32 See Dietzel Enters. v. J. A. Wever Constr., 312 Neb. 426, 979 N.W.2d 517
(2022).

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(iii) Civil Conspiracy
[23,24] A civil conspiracy is a combination of two or more
persons to accomplish by concerted action an unlawful or
oppressive object, or a lawful object by unlawful or oppressive
means. 33 A “conspiracy” is not itself a separate and indepen-
dent tort, but, rather, depends upon the existence of an underly-
ing tort. 34 Without such underlying tort, there can be no cause
of action for conspiracy to commit the tort. 35
To overcome the Bank’s motion for summary judgment, the
Garrelts needed to produce evidence showing that a genuine
issue of material fact existed regarding some underlying tort.
Their pleadings alleged that HSB, Postier, and Lynn “conspired
to fraudulently conceal and misrepresent” the tenuous financial
situation of Lynn and his entities. Viewing the record in the
light most favorable to the Garrelts and drawing all reason-
able inferences in their favor, the evidence does not establish a
factual dispute for either fraudulent concealment or fraudulent
misrepresentation. Without an underlying tort, they cannot
recover for civil conspiracy.
(iv) Breach of Implied Covenant of
Good Faith and Fair Dealing
[25-27] The implied covenant of good faith and fair deal-
ing exists in every contract and requires that none of the par-
ties do anything which will injure the right of another party
to receive the benefit of the contract. 36 The nature and extent
of an implied covenant of good faith and fair dealing are
measured in a particular contract by the justifiable expecta-
tions of the parties. Where one party acts arbitrarily, capri-
ciously, or unreasonably, that conduct exceeds the justifiable
33 George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
34 Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).
35 Id.
36 Dietzel Enters. v. J. A. Wever Constr., supra note 32.

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expectations of the second party. 37 The question of a party’s
good faith in the performance of a contract is a question
of fact. 38
We disagree with the Garrelts that there is a genuine issue of
material fact. The guaranties expressly stated that the Garrelts
agreed to personally guaranty Midwest Auger’s debts in order
to induce HSB to extend a loan. HSB loaned Midwest Auger
a $1.5 million business operating line of credit. Because it
received the benefit of the guaranties, we reject the Garrelts’
argument that there was a breach of the implied covenant of
good faith and fair dealing and that there was a lack or failure
of consideration.
[28] We read the Garrelts’ brief to suggest that a factual
dispute exists regarding the Bank’s conformance to “cus-
tomary banking practices.” 39 However, the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; only disputes over facts that under the governing
law might affect the outcome of the suit will properly pre-
clude the entry of summary judgment. 40 Arguments premised
upon customary banking practices exceed the scope of the
implied covenant of good faith and fair dealing, which is cir-
cumscribed by the terms of the parties’ agreement. 41 To the
extent that the Garrelts argue “customary banking practices”
are relevant to their other counterclaims, such practices are
similarly inapplicable.
37 Id.
38 Id.
39 Brief for appellants at 50.
40 Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).
41 See Dick v. Koski Prof. Group, 307 Neb. 599, 950 N.W.2d 321 (2020)
(scope of conduct prohibited by covenant of good faith is circumscribed by
purposes and express terms of contract), modified on denial of rehearing
on other grounds 308 Neb. 257, 953 N.W.2d 257 (2021).

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In sum, after conducting a de novo review and viewing the
evidence in the light most favorable to the Garrelts and draw-
ing all reasonable inferences in their favor, we conclude that
the district court did not err in granting summary judgment in
favor of the Bank on the counterclaims.
4. Purported Filing of Estate Was Nullity
The Garrelts contend that the district court erred in con-
cluding the purported filing admitting liability on behalf of
Lynn’s estate was a nullity. We see no dispute that the district
court acquired personal jurisdiction of the personal representa-
tive of the estate at a time when the estate was still open and
Schnurer’s appointment was then effective. But the controlling
fact is the later termination of Schnurer’s appointment before
his purported confession of judgment.
[29] Generally, termination of appointment of a personal
representative ends the right and power pertaining to the
office of personal representative. 42 This is not a novel concept.
“When an executor or administrator is finally discharged, all
powers and liabilities cease and, unless obtained by fraud,
such discharge is binding on all parties appearing until duly
set aside.” 43
A statutory exception has no application here. The record
contains the probate court’s order that “deems the [e]state
indigent and without assets to satisfy the numerous claims
filed.” The probate court relied upon Schnurer’s report that
Lynn “died with ‘no, or virtually no, assets to his name.’” The
termination statute does authorize a former personal represent-
ative, under certain circumstances, to perform acts necessary
to protect the estate’s assets. 44 But here, there is no suggestion
in the record that there were any estate assets to be protected.
Nor did the posttermination action purport to protect any such
42 See Neb. Rev. Stat. § 30-2451 (Reissue 2016).
43 33 C.J.S. Executors and Administrators § 115 at 827 (2022).
44 See § 30-2451.

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assets. We are aware that Schnurer filed an affidavit asserting
that he agreed to the confession of judgment “acting under,
not just the authority, but also a continuing duty, to protect
the [e]state . . . and to preserve any assets or potential assets.”
(Emphasis in original.) But his legal conclusion is not sup-
ported by facts.
There is no suggestion in the evidence that the termination
was obtained through any fraud of the personal representative.
We agree that Schnurer’s authority to act as personal represent-
ative ended before he signed or filed the purported confession
of judgment.
Moreover, at the time of the purported confession of judg-
ment against Lynn’s estate, Schnurer was not admitted to
practice law in Nebraska. He was not acting solely on his own
behalf as an individual. Rather, he purported to act on behalf
of Lynn’s estate. We have said that proceedings in a suit by a
person not entitled to practice are a nullity. 45
We see no error in the court’s reasoning that because
Schnurer lacked the authority to act on behalf of the estate, the
purported filing was a nullity. We express no opinion whether
the Garrelts have any other avenue to seek relief against
Lynn’s estate or against Lynn’s heirs or devisees.
VI. CONCLUSION
We see no abuse of discretion in the evidentiary admission
of the written assignment of the personal guaranties. Accord-
ingly, whether viewed using the standard governing a “fac-
tual challenge” or using the summary judgment standard, the
Garrelts’ attack upon the Bank’s standing lacks merit.
Our decision is driven largely by the settled principle that
when the meaning of a guaranty is ascertained, or its terms
are clearly defined, the liability of the guarantor is controlled
absolutely by such meaning and limited to the precise terms.
45 See Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W.2d 904
(1957).

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Regarding the Bank’s motion for summary judgment, we find
that there was no genuine issue of material fact and that the
Bank was entitled to judgment as a matter of law.
Therefore, upon our de novo review, we find no error in
granting summary judgment in favor of the Bank and against
the Garrelts or in the rejection of the purported confession of
judgment.
Affirmed.
Miller-Lerman, J., not participating.