## Facts

- Irvin J. Norine executed two promissory notes payable to his mother, Virginia Norine, and also granted her collateral security (a mortgage and a security interest in personal property).
- Virginia died intestate in 1997; Irvin was appointed personal representative of her estate.
- In estate filings, Irvin listed the two promissory notes as estate assets and signed documents reflecting that listing.
- In a deposition taken about a month after Virginia’s death, Irvin admitted he had the original notes.
- Before trial, the original notes could not be located; at trial, Irvin admitted the photocopies offered were true and accurate copies of the originals.
- Irvin denied owing the debts, claiming the notes were created only to show increased debt during his divorce; he offered testimony suggesting Virginia intended to destroy the notes.
- The successor personal representative, Tonia Fales, sued Irvin to enforce the notes as lost instruments under Neb. U.C.C. § 3-309.
- A jury found for the estate; the district court entered judgment and attempted to provide “adequate protection” to Irvin by restricting payment until after the statute of limitations on the notes expired.

## Issues

1. Whether the estate proved the statutory requirements to enforce the missing promissory notes as lost instruments under Neb. U.C.C. § 3-309.
2. Whether the evidence was sufficient to support the jury’s verdict and to defeat Irvin’s motions for directed verdict, judgment notwithstanding the verdict, and new trial.
3. Whether the district court’s method of providing “adequate protection” to the obligor under Neb. U.C.C. § 3-309(b) was permissible.

## Decision

- The Nebraska Supreme Court affirmed the judgment enforcing the notes, holding sufficient competent evidence supported the jury’s finding that Irvin possessed the notes after Virginia’s death and that they were lost or destroyed while in his possession.
- The court rejected Irvin’s sufficiency and posttrial challenges, emphasizing that credibility conflicts and competing explanations were for the jury to resolve.
- The court modified the judgment’s “adequate protection” provisions under § 3-309(b), concluding the district court’s chosen mechanism required modification even though some form of protection was required.

## Legal Principles

- A missing negotiable instrument may be enforced under Neb. U.C.C. § 3-309 if the claimant proves entitlement to enforce when possession was lost, that the loss was not due to transfer or lawful seizure, and that the instrument cannot reasonably be obtained because it was lost, destroyed, or is wrongfully held.
- Admissions and circumstantial proof (including prior possession, estate inventory filings, and authenticity of copies) may support a finding that an instrument existed, remained enforceable, and was lost or destroyed while in a party’s possession.
- In reviewing denial of directed verdict or judgment notwithstanding the verdict, courts accept as true the prevailing party’s evidence and all reasonable inferences, without reweighing credibility.
- Under § 3-309(b), judgment enforcing a lost instrument may not be entered unless the obligor is “adequately protected” against loss from a later claim on the same instrument; protection may be provided by any reasonable means, but the chosen method remains subject to appellate review.

## Conclusion

The court held the estate could enforce the two missing promissory notes because the jury had a sufficient evidentiary basis to find Irvin possessed and then lost or destroyed the originals, and it affirmed liability while modifying the trial court’s approach to providing the obligor adequate protection against future claims on the notes.


Fales v. Norine, 263 Neb. 932, 644 N.W.2d 513 (Neb. 2002)