U.S. Bank Nat. Assn. v. Peterson

820 	284 NEBRASKA REPORTS
U.S. Bank national aSSociation, appellant, v. Steven e.
peterSon and catherine M. peterSon, appelleeS.
U.S. Bank national aSSociation, appellant, v.
JaSon d. lUnderS, appellee.
U.S. Bank national aSSociation, appellant, v.
david l. SkoglUnd, appellee.
U.S. Bank national aSSociation, appellant, v.
M ark a. hUlS, appellee.
823 N.W.2d 460
Filed December 7, 2012. 	Nos. S-12-086 through S-12-089.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Pretrial Procedure: Appeal and Error. Decisions regarding discovery are
directed to the discretion of the trial court, and will be upheld in the absence of
an abuse of discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when 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.
5. Pretrial Procedure: Proof: Appeal and Error. The party asserting error in
a discovery ruling bears the burden of showing that the ruling was an abuse
of discretion.
6. Rules of the Supreme Court: Pretrial Procedure. The language of Neb. Ct. R.
Disc. § 6-336 contemplates that a request for admission can ask a party to admit
facts in dispute, the ultimate facts in a case, or facts as they relate to the law
applicable to the case.
7. Rules of the Supreme Court: Pretrial Procedure: Evidence: Proof. Neb. Ct.
R. Disc. § 6-336 is self-enforcing, without the necessity of judicial action to
effect an admission which results from a party’s failure to answer or object to
a request for admission. However, § 6-336 is not self-executing. Thus, a party
that seeks to claim another party’s admission, as a result of that party’s failure to
respond properly to a request for admission, must prove service of the request for
admission and the served party’s failure to answer or object to the request and
must also offer the request for admission as evidence. If the necessary founda-
tional requirements are met and no motion is sustained to withdraw an admission,
a trial court is obligated to give effect to the provisions of § 6-336 which require
that the matter be deemed admitted.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

U.S. BANK NAT. ASSN. v. PETERSON 	821
Cite as 284 Neb. 820
8. Pretrial Procedure: Evidence. An admission which is not withdrawn or amended
cannot be rebutted by contrary evidence or ignored by the district court simply
because the court finds the evidence presented by the party against whom the
admission operates to be more credible.
9. Summary Judgment: Final Orders: Appeal and Error. Although the denial of
a motion for summary judgment, standing alone, is not a final, appealable order,
when adverse parties have each moved for summary judgment and the trial court
has sustained one of the motions, the reviewing court obtains jurisdiction over
both motions and may determine the controversy which is the subject of those
motions or make an order specifying the facts which appear without substantial
controversy and direct such further proceedings as it deems just.
Appeals 	from 	the 	District 	Court 	for 	Madison 	County:
JaMeS g. kUBe, Judge. Reversed and remanded for further
proceedings.
Stephen H. Nelsen and Shawn D. Renner, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellant.
D.C. Bradford and Justin D. Eichmann, of Bradford &
Coenen, L.L.C., for appellees.
heavican, c.J., connolly, Stephan, MccorMack, M iller-
lerMan, and caSSel, JJ.
M iller-lerMan, J.
NATURE OF CASE
In 	these 	consolidated 	appeals, 	U.S. 	Bank 	National
Association (the Bank) sued five guarantors following defaults
on the underlying notes. During the course of the proceedings,
the Bank tendered requests for admissions to each of the guar-
antors regarding various facts, including a request to admit the
specific amount due on the note for principal, accrued interest,
and a prepayment fee that the Bank claimed was due under
each of the notes. By virtue of various rulings, the district court
for Madison County entered judgment in favor of the Bank
with respect to the principal and accrued interest due from
the guarantors but, based in part on the guarantors’ answers to
the requests for admissions, determined that the Bank was not
entitled to prepayment fees.
On appeal, the Bank claims that the court erred when it
treated the guarantors’ answers to the Bank’s requests for

822 	284 NEBRASKA REPORTS
admissions as denials rather than admissions that the guaran-
tors owed prepayment fees. We find merit to the Bank’s argu-
ment and conclude that the court erred when it treated the
answers as denials and granted summary judgment in favor
of the guarantor in each case on the prepayment fee issue. We
reverse the rulings regarding the prepayment fee issue and
remand the causes to the district court for further proceedings.
STATEMENT OF FACTS
In four separate actions, the Bank filed complaints in the
district court for Madison County against, respectively, Steven
E. Peterson and Catherine M. Peterson, Jason D. Lunders,
David L. Skoglund, and Mark A. Huls. Each suit claimed that
these individuals served as guarantors on various notes and
that the notes were in default. Each of the defendants executed
a guaranty for a portion of the obligations of certain limited
liability companies to the Bank. The Petersons guaranteed 50
percent of the obligations of Magnum 43, LLC, which had two
notes with the Bank, and 12.5 percent of the obligations of
Remington, LLC, which had one note with the Bank. Lunders
guaranteed 12.5 percent of the obligations of Remington, LLC.
Skoglund guaranteed 50 percent of the obligations of Windmill
Ridge, LLC, which had one note with the Bank, and Huls
guaranteed 50 percent of the obligations of Rawhide, LLC,
which had one note with the Bank. Each of the defendants was
a member of the limited liability company (LLC) for which he
or she guaranteed obligations. David and Nancy Meyer were
members of all the LLC’s and guaranteed a portion of each
LLC’s obligations. Neither the LLC’s nor the Meyers were
named as defendants in these actions.
The facts that are relevant in this appeal are common to
each defendant with respect to each obligation of each LLC.
Therefore, for ease of reading, in the remainder of this opin-
ion, we generically speak of “the guarantor,” “the LLC” and
“the note” as though such references are to only one defend-
ant, one LLC, and one note; however, the references apply
to each note of each LLC and the guaranty executed by each
defendant. In quoted portions of the record, where we refer
to a defendant or guarantor in the singular, it is to be noted

U.S. BANK NAT. ASSN. v. PETERSON 	823
Cite as 284 Neb. 820
that in the Peterson case, the original refers in the plural to
both Petersons.
In its complaint, the Bank alleged that the guarantor was in
default on the guarantor’s share of the balance due on the note.
The Bank alleged specific amounts that were due for principal
and accrued interest. The Bank also alleged a specific amount
for a prepayment fee that it claimed was owed. The note exe-
cuted by the LLC included the following provision with regard
to a prepayment fee:
There shall be no prepayments of this Note, provided
that the Bank may consider requests for its consent with
respect to prepayment of this Note, without incurring an
obligation to do so, and the Borrower acknowledges that
in the event that such consent is granted, the Borrower
shall be required to pay the Bank, upon prepayment of
all or part of the principal amount before final maturity,
a prepayment indemnity (“Prepayment Fee”) equal to the
greater of zero, or that amount, calculated on any date of
prepayment (“Prepayment Date”), which is derived by
subtracting: (a) the principal amount of the Note or por-
tion of the Note to be prepaid from (b) the Net Present
Value of the Note or portion of the Note to be prepaid
on such Prepayment Date; provided, however, that the
Prepayment Fee shall not in any event exceed the maxi-
mum prepayment fee permitted by applicable law.
The Bank moved for summary judgment. At the summary
judgment hearing, the Bank offered and the court received into
evidence the guarantor’s answers to the Bank’s requests for
admissions. One of the Bank’s requests was for the guaran-
tor to admit the specific amount due on the note for principal,
accrued interest, and prepayment fee. The guarantor responded
to such request as follows:
Defendant does not have the information with which to
admit or deny the numbers set out under Request for
Admissions . . . including principal, interest, default and
prepayment amounts. Defendant believes Plaintiff has
continued to communicate those matters correctly with
David and Nancy Meyer or their counsel and Defendant
puts Plaintiff to its strict proof with respect thereto.

824 	284 NEBRASKA REPORTS
The guarantor offered and the court received into evidence
an affidavit of the guarantor stating, inter alia, that the guaran-
tor had guaranteed a portion of the LLC’s obligations to the
Bank, that the LLC had defaulted on the note, and that the
Bank had declared the entire amount due on the note to be
immediately due and payable. The guarantor quoted a portion
of the note’s provision regarding prepayment and stated that
to the guarantor’s knowledge, neither the LLC nor any of its
members had requested prepayment of the note.
On March 7, 2011, the court sustained the Bank’s motion
for summary judgment in part but overruled the motion with
respect to the prepayment fee. In the order, the court stated
that the guarantor “acknowledged those amounts which [the
Bank] claims are due and owing, but alleged as [the guaran-
tor’s] sole contention that the . . . prepayment fee, along with
its continuing accrual, is inapplicable, and thus that [the Bank]
is not entitled to this amount.” The court concluded that the
Bank was entitled to summary judgment with regard to the
principal and accrued interest due from the guarantor but
refused to rule as a matter of law that the Bank was entitled
to the prepayment fee. The court therefore granted summary
judgment to the extent of principal and accrued interest, but
reserved the prepayment fee issue for trial. The guarantor has
not appealed the substance of the ruling in which the district
court found in favor of the Bank with respect to principal
and interest, and, on appeal, we do not address nor disturb
this ruling.
The guarantor thereafter moved for partial summary judg-
ment with regard to the prepayment fee. At the hearing on the
grantor’s motion for summary judgment, the court received
the evidence noted above that it had received at the hearing
on the Bank’s motion for summary judgment. After argument
and briefing, the court, on January 5, 2012, entered an order
in which it sustained the guarantor’s motion for partial sum-
mary judgment.
In its order, the court rejected various arguments made by
the Bank, including the Bank’s argument that the guarantor’s
response to the request for admission regarding the balance
due for principal, accrued interest, and prepayment fee was an

U.S. BANK NAT. ASSN. v. PETERSON 	825
Cite as 284 Neb. 820
admission that a prepayment fee was due. The Bank noted the
guarantor did not specifically deny the request and did not, as
required by Neb. Ct. R. Disc. § 6-336 (Rule 36), set forth in
detail the reasons why the guarantor could not truthfully admit
or deny the matter or state that the guarantor had made reason-
able inquiry and that the information known or readily obtain-
able by the guarantor was insufficient to enable the guarantor
to admit or deny. The Bank argued that the guarantor’s answer
should have been treated as an admission.
The court disagreed with the Bank and treated the answer as
a denial. The court stated the following in its order:
Since the defendant did not specifically deny that the
prepayment fee was required under the original note he
is deemed to have admitted the same. However, as noted
above, the defendant responded that he did not have suf-
ficient information in order to admit or deny the specific
amounts as set forth in the Admission. However, the
defendant did put plaintiff on strict proof with respect to
those amounts. The Court interprets this as a denial of the
specific amounts due and owing and accordingly, a denial
that a prepayment fee is owed.
(Emphasis supplied).
Turning to the terms of the note, the court determined that
the prepayment clause in the note did not apply when the bor-
rower defaults and the lender accelerates the note. The court
reasoned that when the Bank accelerated the debt because of
default, it effectively advanced the maturity date of the debt
to the default date, and that therefore, any payment after that
date was not a prepayment. The court concluded that the Bank
was not entitled to a prepayment fee and that the guarantor was
entitled to partial summary judgment.
The Bank appeals, inter alia, the order sustaining the guar-
antor’s motion for partial summary judgment in which the
court determined that the Bank was not entitled to a prepay-
ment fee.
ASSIGNMENTS OF ERROR
The Bank claims that the district court erred when it (1)
treated the guarantor’s response to the Bank’s request for

826 	284 NEBRASKA REPORTS
admission as a denial that a prepayment fee was owed and
(2) concluded that the guarantor did not owe a prepayment
fee, sustained the guarantor’s motion for partial summary
judgment, and overruled in part the Bank’s motion for sum-
mary judgment. The guarantor did not cross-appeal the district
court’s ruling in favor of the Bank with respect to its entitle-
ment to principal and interest, and we, therefore, do not con-
sider such rulings.
STANDARDS OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as
to any material facts or the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Olson v. Wrenshall, ante p. 445,
822 N.W.2d 336 (2012). In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Id.
[3-5] Decisions regarding discovery are directed to the dis-
cretion of the trial court, and will be upheld in the absence of
an abuse of discretion. Gonzalez v. Union Pacific RR. Co., 282
Neb. 47, 803 N.W.2d 424 (2011). A judicial abuse of discre-
tion exists when 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.
Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010). The
party asserting error in a discovery ruling bears the burden of
showing that the ruling was an abuse of discretion. Id.
ANALYSIS
The District Court Abused Its Discretion When It
Treated the Guarantor’s Answer to the Bank’s
Request for Admission Regarding the
Prepayment Fee as a Denial.
The Bank asserts that the district court erred when it treated
the guarantor’s answer to its request for admission with regard

U.S. BANK NAT. ASSN. v. PETERSON 	827
Cite as 284 Neb. 820
to the prepayment fee as a denial that a prepayment fee was
owed. We analyze the answer only as it pertains to the prepay-
ment fee issue. We agree with the Bank that the district court
erred. Under the discovery rule regarding requests for admis-
sions, the court did not have the option to treat the answer as a
denial and instead should have either ordered the guarantor to
properly answer the request or treated the answer as an admis-
sion. We conclude that the court abused its discretion when it
treated the response as a denial.
[6] Requests for admissions are governed by Rule 36, which
generally provides that a party may serve upon another party a
request for the admission of the truth of matters relevant to the
case at hand, including “statements or opinions of fact or of the
application of law to fact.” We have stated that the language of
Rule 36 contemplates that the request can ask a party to admit
facts in dispute, the ultimate facts in a case, or facts as they
relate to the law applicable to the case. See Tymar v. Two Men
and a Truck, 282 Neb. 692, 805 N.W.2d 648 (2011). Therefore,
the Bank’s request for an admission that the guarantor owed a
prepayment fee in a specific amount was a permissible request
under Rule 36.
Rule 36 sets forth requirements for the form of both the
request and the answer. Of particular relevance to the pres-
ent case, Rule 36(a) provides as follows with respect to the
appropriate response to a request for admission and what
the court may do when a party fails to provide an appropri-
ate response:
The matter is admitted unless . . . the party to whom the
request is directed serves upon the party requesting the
admission a written answer or objection addressed to
the matter, signed by the party or by his or her attorney
. . . . If objection is made, the reasons therefor shall be
stated. The answer shall specifically deny the matter or
set forth in detail the reasons why the answering party
cannot truthfully admit or deny the matter. A denial shall
fairly meet the substance of the requested admission,
and when good faith requires that a party qualify his or
her answer or deny only a part of the matter of which
an admission is requested, he or she shall specify so

828 	284 NEBRASKA REPORTS
much of it as is true and qualify or deny the remainder.
An answering party may not give lack of information
or knowledge as a reason for failure to admit or deny
unless he or she states that he or she has made reason-
able inquiry and that the information known or readily
obtainable by him or her is insufficient to enable him or
her to admit or deny. A party who considers that a mat-
ter of which an admission has been requested presents
a genuine issue for trial may not, on that ground alone,
object to the request; he or she may . . . deny the mat-
ter or set forth reasons why he or she cannot admit or
deny it.
. . . If the court determines that an answer does not
comply with the requirements of this rule, it may order
either that the matter is admitted or that an amended
answer be served.
We consider the guarantor’s answer to the Bank’s request
regarding a prepayment fee in light of the requirements of Rule
36. Rule 36 requires that the answer either “specifically deny
the matter” or “set forth in detail the reasons why the answer-
ing party cannot truthfully admit or deny the matter.” Where
the party lacks information, the party shall recite information
showing he or she has made reasonable inquiry. In this regard,
it is not enough to simply track the language of Rule 36. See
Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242 (9th
Cir. 1981). In response to the Bank’s request for admission
regarding the amount of a prepayment fee owed, the guaran-
tor stated:
Defendant does not have the information with which to
admit or deny the numbers set out under Request for
Admissions . . . including principal, interest, default and
prepayment amounts. Defendant believes Plaintiff has
continued to communicate those matters correctly with
David and Nancy Meyer or their counsel and Defendant
puts Plaintiff to its strict proof with respect thereto.
The guarantor did not specifically deny that a prepayment fee
was owed and instead asserted the inability to admit or deny
the matter. However, the answer did not make the required
assertions that the guarantor had made reasonable inquiry and

U.S. BANK NAT. ASSN. v. PETERSON 	829
Cite as 284 Neb. 820
that the information known or readily obtainable by the guar-
antor was insufficient to enable the guarantor to admit or deny
that a prepayment fee was owed. Instead, the answer indicated
that other persons, the Meyers, had the information but did
not state that the guarantor had made inquiry of the Meyers or
attempted to otherwise obtain the information.
We have observed that Rule 36 is based on the federal rules,
and we may look to federal cases for guidance. Tymar, supra.
Where a party neither admits nor denies a request, it has been
held that “a response which fails to admit or deny a proper
request for admission does not comply with the requirements
of [federal] Rule 36(a) if the answering party has not, in fact,
made ‘reasonable inquiry.’” Asea, Inc., 669 F.2d at 1247. In
construing a statute that was a predecessor to Rule 36 and that,
like Rule 36, was based on the corresponding federal rule, we
relied on federal cases and stated:
When a request for admissions is made under this sec-
tion, the party served must answer even though he has no
personal knowledge if the means of obtaining the infor-
mation are available to him. It is not a sufficient answer
that he does not know, when it appears that he can obtain
the information.
Kissinger v. School Dist. No. 49 of Clay County, 163 Neb. 33,
38, 77 N.W.2d 767, 770 (1956).
From the guarantor’s response, it appears that the guarantor
could have obtained the information by making inquiry of the
Meyers, but the answer fails to indicate that reasonable inquiry
of the Meyers was attempted. We concluded in Kissinger that
based on Rule 36, “[a] bad response is treated as no response at
all and hence as an admission.” 163 Neb. at 39, 77 N.W.2d at
771. Because the guarantor’s response did not comply with the
requirements of Rule 36, it was essentially a “bad response”
and therefore, effectively, a failure to respond which should
have been treated as an admission.
Rule 36(b) provides for the effect to be given to an answer
that is treated as an admission. Rule 36(b) provides in part:
Any matter admitted under this rule is conclusively
established unless the court on motion permits with-
drawal or amendment of the admission. The court may

830 	284 NEBRASKA REPORTS
permit withdrawal or amendment when the presentation
of the merits of the action will be subserved thereby and
the party who obtained the admission fails to satisfy the
court that withdrawal or amendment will prejudice him
or her in maintaining his or her action or defense on
the merits.
In a case where a party failed to answer, we stated that such
failure constitutes an admission by that party of the subject
matter of the request, and given Rule 36(b), such admission
stands as established fact unless, on motion, the court permits
withdrawal of the admission. See Tymar v. Two Men and a
Truck, 282 Neb. 692, 805 N.W.2d 648 (2011).
[7] Rule 36 is self-enforcing, without the necessity of judi-
cial action to effect an admission which results from a party’s
failure to answer or object to a request for admission. Id.
However, Rule 36 is not self-executing. Thus, a party that
seeks to claim another party’s admission, as a result of that
party’s failure to respond properly to a request for admission,
must prove service of the request for admission and the served
party’s failure to answer or object to the request and must also
offer the request for admission as evidence. Id. If the necessary
foundational requirements are met and no motion is sustained
to withdraw an admission, a trial court is obligated to give
effect to the provisions of Rule 36 which require that the mat-
ter be deemed admitted. Id.
In the present case, the district court received the Bank’s
requests for admissions and the guarantor’s answers into evi-
dence at both the hearing on the Bank’s motion for summary
judgment and the hearing on the guarantor’s motion for partial
summary judgment. The guarantor made no motion, and the
court sustained no motion, to withdraw or amend the guaran-
tor’s admission regarding the prepayment fee. Rather than
treating the guarantor’s answer as a denial, the district court
was required under Rule 36 to deem as admitted that the guar-
antor owed the prepayment fee. We therefore conclude that the
district court abused its discretion when it treated the guaran-
tor’s answer regarding the prepayment fee as a denial rather
than an admission.

U.S. BANK NAT. ASSN. v. PETERSON 	831
Cite as 284 Neb. 820
The District Court Erred When It Concluded,
Based on the Record Before It, That the
Guarantor Was Entitled to Judgment
as a Matter of Law on the
Prepayment Fee Issue.
In light of our conclusion that the district court abused its
discretion when it treated the guarantor’s answer to the Bank’s
request for admission regarding the prepayment fee as a denial
rather than an admission, we consider the Bank’s assignments
of error that the court erred when it determined that the guaran-
tor did not owe the prepayment fee, sustained the guarantor’s
motion for partial summary judgment, and further erred when
it overruled in part the Bank’s motion for summary judgment.
We conclude that, based on the record before it at the time, the
court erred when it failed to give legal effect to the substance
of the improperly answered request and determined that the
guarantor did not owe a prepayment fee and was entitled to
judgment as a matter of law on the prepayment fee issue. We
therefore reverse the order sustaining the guarantor’s motion
for partial summary judgment. We remand the cause for further
proceedings at which the court should follow the requirements
of Rule 36 in its treatment of the guarantor’s answer to the
Bank’s request for admission.
We first address the Bank’s claim that the district court erred
when it determined that the guarantor did not owe a prepay-
ment fee and sustained the guarantor’s motion for partial sum-
mary judgment. We find merit to this assignment of error.
[8] When the court decided the guarantor’s motion for partial
summary judgment, the record included the guarantor’s answer
to the Bank’s request for admission regarding the prepay-
ment fee and, as discussed above, under Rule 36, such answer
should have been deemed as an admission that the guarantor
owed the prepayment fee. Such admission was in evidence and
precluded a conclusion that the guarantor was entitled to judg-
ment as a matter of law on the prepayment fee issue. However,
instead of giving effect to the admission, the district court con-
sidered the language of the note and concluded that the guaran-
tor did not owe a prepayment fee. It was improper for the court

832 	284 NEBRASKA REPORTS
to ignore the conclusive effect of the admission and to proceed
to analyze the note.
In Tymar v. Two Men and a Truck, 282 Neb. 692, 805 N.W.2d
648 (2011), we referred to American Auto. Ass’n v. AAA Legal
Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991), in which it was
stated that “[a]n admission that is not withdrawn or amended
cannot be rebutted by contrary [evidence] or ignored by the
district court simply because it finds the evidence presented
by the party against whom the admission operates more cred-
ible.” Indeed, it has been observed that “[t]he salutary function
of [federal] Rule 36 in limiting the proof would be defeated
if the party were free to deny at the trial what he or she has
admitted before trial.” 8B Charles Alan Wright et al., Federal
Practice and Procedure § 2264 at 382 (3d ed. 2010). The court
erred when it ignored the admission, considered the terms of
the note, and sustained the guarantor’s motion for partial sum-
mary judgment.
[9] The Bank also claims that the court erred in its first
order of March 7, 2011, when it overruled the portion of the
Bank’s motion for summary judgment related to the prepay-
ment fee. We note that the overruling of a motion for summary
judgment is not an appealable order, and therefore, the Bank
did not and could not have appealed the order overruling in
part its motion for summary judgment at the time the order
was entered. See Williams v. Baird, 273 Neb. 977, 735 N.W.2d
383 (2007) (it has been repeated conclusion of this court that
denial of motion for summary judgment is not final order).
However, although the denial of a motion for summary judg-
ment, standing alone, is not a final, appealable order, when
adverse parties have each moved for summary judgment and
the trial court has sustained one of the motions, the reviewing
court obtains jurisdiction over both motions and may deter-
mine the controversy which is the subject of those motions
or make an order specifying the facts which appear without
substantial controversy and direct such further proceedings
as it deems just. Hogan v. Garden County, 264 Neb. 115, 646
N.W.2d 257 (2002). We therefore consider the Bank’s motion
for summary judgment with regard to the prepayment fee issue
in connection with the guarantor’s motion for partial summary

U.S. BANK NAT. ASSN. v. PETERSON 	833
Cite as 284 Neb. 820
judgment on the same issue to determine what further proceed-
ings would be just.
Although the court erred when it treated the guarantor’s
answer as a denial rather than an admission when it decided
the Bank’s motion for summary judgment, it would not be
just to reverse the partial overruling of the Bank’s motion for
summary judgment and to remand the cause with an order for
the court to grant summary judgment in favor of the Bank on
the prepayment fee issue. Although we decline to reverse the
overruling, the Bank is free to file a subsequent similar motion
after remand.
Under Rule 36, if the court had properly treated the guaran-
tor’s answer as an admission, then the guarantor would have
been allowed to file a motion to withdraw or amend the admis-
sion and to thereafter formally deny that it owed a prepayment
fee. We note for completeness that in connection with both the
Bank’s and the guarantor’s motions for summary judgment,
the guarantor made arguments in which the guarantor denied
that a prepayment fee was owed; however, such denials did not
effectively withdraw the admission. Only a motion to withdraw
the admission, which the court would have had the discretion
to grant, would have achieved such effect. But because the
court improperly treated the guarantor’s answer as a denial, the
guarantor was under the mistaken belief that the answer was
an effective denial. It would not be just to deny the guaran-
tor the opportunity to seek to withdraw the deemed admission
because the district court erroneously failed to treat the answer
as an admission.
We therefore do not reverse the March 7, 2011, overruling
of the bank’s motion for partial summary judgment on the pre-
payment fee issue, but do reverse the court’s order of January
5, 2012, granting the guarantor’s motion for partial summary
judgment on the prepayment fee issue. We remand the cause
for further proceedings at which the district court should fol-
low Rule 36 with respect to the effect of the guarantor’s answer
to the Bank’s request for admission regarding the prepayment
fee. Because the guarantor’s answer was a “bad response” and
therefore a failure to respond, in accordance with Rule 36, the
court should either require an amended answer or treat the

834 	284 NEBRASKA REPORTS
answer as an admission. If the court chooses to treat the answer
as an admission, it should thereafter entertain any motion the
guarantor might make to withdraw such admission, and the
court should exercise its discretion under Rule 36 with regard
to such motion.
CONCLUSION
We conclude that the district court abused its discretion
when it treated the guarantor’s answer regarding the prepay-
ment fee as a denial in contravention of Rule 36. Because the
answer in evidence should have been treated under Rule 36 as
an admission that the guarantor owed a prepayment fee, the
court erred when it ignored the admission, considered the terms
of the note, and determined that the guarantor did not owe a
prepayment fee and was entitled as a matter of law to partial
summary judgment on the prepayment fee issue. We therefore
reverse the order sustaining the guarantor’s motion for partial
summary judgment, and we remand the cause for further pro-
ceedings consistent with this opinion.
reverSed and reManded for
fUrther proceedingS.
Wright, J., not participating.