Nebraska Supreme Court (J. Stephan) affirms defense verdict in attorney malpractice action; Although attorney might have failed to renew client's security interest in collateral, plaintiff still could have sued personally the owners of the purchasing business because lapsed financing statement, impairing the collateral, did not discharge those co-makers' debtBorley Storage & Transfer Co. v. Whitted, 271 Neb. 84 Filed March 3, 2006. No. S-04-708 (Borley Storage II) earlier opinion Plaintiff sold his business and the purchasers agreed to pay for the business through payments on a note secured with the purchasers assets. The plaintiff alleged his attorney failed to renew the financing statement after five years and did not tell him to do it. Years later the purchasers defaulted and filed bankruptcy. Because another creditor filed an intervening security interest in the purchasers property the Plaintiff lost most of the value of his collateral. Plaintiff did not sue the owners who also signed the note because Plaintiff argued the lapsed financing statement discharged the owners obligation on the note. See old UCC3-606 {impairment of collateral defense.} Earlier supreme court decision reversed summary judgment for the Plaintiff because there was no bill of exceptions. Jury verdict was for defendant attorney and plaintiff again appeals to Supreme Court AFFIRMED Even if allowing a security interest to lapse is "impairment of collateral" Old 3-606 does not allow co-makers to a discharge on the note § 3-606 (now 3-605) generally protected a surety's right of subrogation. See 61 A.L.R. 5th, Annot., 61 A.L.R. 5th 525 (1998); 21 Shepard's Causes of Action 145, § 23 (1990).Supreme Court followed the majority view that the impairment of collateral defense is not available to the maker or comaker of a promissory note. See Ashland State Bank v. Elkhorn Racquetball, Inc., 246 Neb. 411, 419, 520 N.W.2d 189, 194 (1994) {rejected a claim that a party was entitled to assert "the special suretyship defenses set forth in Neb. U.C.C. § 3-606" based in part upon our prior determination that the party "was a principal obligor on the note and not an accommodation party."} Under old UCC 3-415 (new 3-419) the owners of the purchasing business were co-makers to the note and were naccommodatinging or surety partiesNeWhetherher a party is an accommodation maker or a principal obligor on an instrument is a question of intent. Ashland State Bank v. Elkhorn Racquetball, Inc., supra; Marvin E. Jewell & Co. v. Thomas, 231 Neb. 1, 434 N.W.2d 532 (1989) U.C.C. § 3-415 (Reissue 1980) The only reasonable inference which can be drawn from the record is that the Bauders were principal obligors of the promissory note, not accommodation parties, and thus could not have asserted an impairment of collateral defense to a claim on the note. Accordingly, the district court did not err in determining as a matter of law that the Bauders were personally liable on the note notwithstanding the failure to file a continuation statement, and in so instructing the jury. The plaintiffs failed to mitigate their damages, and further the jury did not believe that the attorney committed malpractice Court allowed evidence of habit per defendant attorneys testimony to prove point that attorney would have informed the client to renew security interests in five years. § 27-406 and Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000) We agree with the analytical principles applied by the Court of Appeals in Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000), and conclude that the district court did not abuse its discretion in permitting this testimony. As in Hoffart, this case focuses on a professional service rendered years prior to testimony in a malpractice action. In Hoffart, the court recognized the practical reality that "a doctor cannot be expected to specifically recall the advice or explanation he or she gives to each and every patient he or she sees or treats" and that thus, "evidence of habit may be the only vehicle available for a doctor to prove that he or she acted in a particular way on a particular occasion" and is therefore "highly relevant." 9 Neb. App. at 168, 609 N.W.2d at 404. The same reality exists with respect to advice which is routinely given by a lawyer to a client in particular circumstances.