Appendix — Nelson v. Production Credit Ass'n
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91°459 iia.
(Ly if aug 15 199%
Case No. i
IN THE UNITED STATES SUPREME COURT
October, 1991
JOE NELSON and MARGARET NELSON,
Petitioners,
Vv.
PRODUCTION CREDIT ASSOCIATION
OF THE MIDLANDS,
Respondent.
a
PETITIONERS' APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
David H. Hahn, #16573
of HAHN LAW OFFICE
Attorney for Petitioners
245 S. 84th Street, Suite 212
Lincoln, Nebraska 68510
(402) 483-6266
pret if ES
TABLE OF CONTENTS
Judgment
Memorandum and Order on
Post-Trial Motions
Decision on Appeal to
Eighth Circuit
Petition for Rehearing and
Suggestion for Rehearing,
En Banc and Petitioners'
Appendix
Affidavit of David H. Hahn
Order Denying Petition for
Rehearing and Suggestion
Rehearing En Banc
Letter Submitting Hecker v.
Ravenna Bank to Court
Hecker v. Ravenna Bank
Appendix
Page No.
1
7
62
97
102
108
110
113
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH NELSON, CV88-L-238
et al.,
Plaintiffs,
Vv. JUDGMENT
PRODUCTION CREDIT
ASSOCIATION OF
THE MIDLANDS,
Defendant.
Jury verdicts having been received on
May 26, 1989, on the plaintiffs' claim for
damages and the defendant's claim for money
due on promissory notes,
IT IS ORDERED that the plaintiffs
shall recover from the defendant the amount
of $1,278,000.00, together with interest at
the rate of 9.15 percent per annum from the
date of this judgment, and the defendant
shall recover from plaitniffs on its
conunterclaim $408,063.32, together with
interest at the rate of 9.15 percent per
Petitioners' Appendix
Page 1
annum from the date of this judgment. The
parties shall pay their own taxable court
costs.
IT IS FURTHER ORDERED that the issues
of whether the interest of the defendant
shoud be equitably subordinated to the
interests of other creditors and the
plaintiffs and the additional steps to be
taken in the foreclosure of a mortgage and
security interest relative to the
defendant's counterclaim shall stand
referred to the bankruptcy court upon this
judgment's becoming final.
Dated May 31, 1989.
BY THE COURT
Warren K. Urbom /s/
United States District Judge
Petitioners' Appendix
Page 2
EEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH NELSON, CV88-L-238
et al.,
Plaintiffs,
Vv. VERDICT ON
THE PLAINTIFFS'
PRODUCTION CREDIT CLAIM
ASSOCIATION OF
THE MIDLANDS,
Defendant.
i. As to the plaintiffs' claim of
negligence, we find:
VA. for the plaintiffs, Joseph and
Margaret Nelson, and find they
have incurred damages on that
claim in the amount of
$1,278,000.00*. This amount
includes $None* that is also
included in the palintiffs' claim
of breach of contract and
$372,275.00* in award of damages
on the plaintiffs' claim of
misrepresentation.
Petitioners' Appendix
Page 3
B. for the defendant, Production
Credit Association of the
Midlands.
II. As to the plaintiffs' claim of breach
of contract, we find:
VA. for the plaintiffs, Joseph and
Margaret Nelson, and find they
have incurred damages on that
claim in the amount of
$1,278,000.00*. This amount
includes $905,625.00* that is
also included in an award of
damages on the plaintiffs' claim
of negligence and $372,375.00*
that is also included in an award
of damages on the plaitiffs'
claim of misrepresentation.
B. for the defendant, Production
Credit Association of the
Midlands.
III. As to the plaintiffs' claim of
misrepresentation, we find:
Petitioners' Appendix
Page 4
—
VA. for the plaintiffs, Joseph and
Margaret Nelson, and find they
have incurred damgages on that
claim in the amount of
$1,278,000.00*. This amount
includes $None* that is also
included in an award of damages
on the plaintiffs' cliam of
breach of contract and
$905,625.00 that is also included
in an award of damages on the
plaintiffs' claim of negligence.
B. for the defendant, Production
Credit Association of the
Midlands.
Dated May 26, 1989.
Wilford Leach /s/
Foreperson
* Amounts were filled in as per person.
Petitioners' Appendix
Page 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH NELSON, CV88-L-238
et al.,
Plaintiffs,
Vv. VERDICT ON
THE DEFENDANT'S
PRODUCTION CREDIT COUNTERCLAIM
ASSOCIATION OF
THE MIDLANDS,
Defendant.
As to the counter claim of the
defendant, PCA, we, the jury find:
VA. for the defendant, Production
Credit Association of the
Midlands, in the amount of
$408, 063.32*.
B. for the plaintiffs, Joseph and
Margaret Nelson.
Dated May 26, 1989.
Wi d ch /s
Foreperson
* Amounts were filled in as per person.
Petitioners' Appendix
Page 6
EEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH NELSON, CV88-L-238
et al.,
Plaintiffs,
Vv. MEMORANDUM AND
ORDER ON POST-
PRODUCTION CREDIT TRIAL MOTIONS
ASSOCIATION OF
THE MIDLANDS,
Defendant.
MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT
A Rule 50(b) motion for judgment
notwithstanding the verdict may be granted
upon the same grounds and standard as a
motion for a directed verdict. That
standard is stated in Savage v. Christian
Hospital Northwest, 543 F.2d 44 (8th Cir.
1976) as follows:
"Under ... federal ... law '(a)
verdict may be properly directed
only when the evidence is such
that, without weighing the
credibility of witnesses, there
can be but one reasonable
conclusion as to the verdict. '
Meitz v. Garrison, 413 F.2d 895,
896 (8th Cir. 1969). '‘'A directed
Petitioners' Appendix
Page 7
verdict is in order only when the
evidence points all one way and
is susceptible of no reasonable
inferences sustaining the
position of the nonmoving party.
Giordano v. Lee, 434 F.2d 1227,
1231 (8th Cir. 1970), cert.
denied, 403 U.S. 931, 91 S.Ct
2250, 29 L.Ed2d 709 (1971). ‘In
making this determination, the
evidence, together with all
reasonable inferences to be draw
therefrom, must be viewed in the
light most favorable to the
rennet party. Decker~-Ruhl
Ford v. Ford ities Credit, 523
P.2d 833, 836 (8th Cir. 1975).*
I. r Cc ac
The theory of breach of contract was
submitted to the jury, the definition of
the contract being:
"PCA agreed to provide operating
capital for the expansion of the
Nelsons' ranch operation to full
productivity over a three-year
period and to restructure the
Nelsons' debt situation to permit
proper funding of the Nelsons'
ranching operation ..."
The defendant asserts that, even if
evidence were to support that definition of
a contract, the terms were so indefinite as
Petitioners' Appendix
Page 8
to constitute no contract at all. In Davco
ealty C v. Picni ods ., 198 Neb.
193, 252 N.W.2d 142 (1977), the court said:
"'eTj}he subject matter of the
agreement must be expressed in
such terms that it can be
ascertained with reasonable
certainty,' 17 Am. Jur.2d,
Contracts § 76, p. 416. ‘Absolute
certainty is not required,
however, only reasonable
certainty is necessary. A
contract is not subject to the
objection that it is indefinite
so long as the parties can tell
when it has been performed, and
it is enough if, when that time
arrives, there is in existence
some standard by which
performance can be tested' Id. at
417."
In Davco there was an agreement, as
described by the court,
"to mutually develop their
respective properties for the
benefit of both. Picnic agreed
to do certain paving and granted
Davco an easement across its
property. In return Davco
granted Picnic an easement across
its property. Picnic thus would
obtain ingress and egress to its
property from West Dodge Road.
Davco would obtain access to
additional parking space enabling
it to add on to the building on
its property."
Petitioners' Appendix
Page 9
The district court in Davco found the
agreement indefinite and uncertain in
regard to the nature of the paving material
to be used, the depth and thickness of the
paving, the foundation work and site
preparation work required, and the time
within which Picnic was required to
perform. The Supreme Court of Nebraska
held that the provisions of the contract
were sufficiently specific to permit
enforcement, because under Nebraska law in
a building and construction contract it is
implied that the building will be erected
in a reasonably good and workmanlike manner
and will be reasonably fit for the intended
purpose. That, coupled with the implied
time of performance to be within a
reasonable time under the circumstances,
“cures any ambiguity otherwise inherent in
the agreement." Id. p. 198.
Petitioners’ Appendix
Page 10
Where the lending of money is
involved, however, specificity is more
important, because of the lack of implied
terms that may be imposed. In Union State
Bank v. Woell, 434 N.W.2d 712 (N.D. 1989)
the claim was as follows:
"Woell asserts that he and the
Bank entered into an oral
agreement that required the Bank
‘to continue loaning money to
Woell up to the extent of the
Bank's lending limit and then to
put Woell into contact with other
lending sources beyond this
Bank's lending limit."
The court held that there was no
enforceable agreement as a matter of law.
The court said:
"Woell has pointed to nothing in
the record that would support ~
even a reasonable inference that
the Bank agreed to lend him in
the future a specific amount of
money over a specified period at
a specified interest to be repaid
under specified terms. There is
no allegation that the parties
agreed upon any of these specific
items. While the Bank did loan
Woell some funds, Woell has not
demonstrated how these loans tell
us the total amount of monies to
be loaned nor does it provide us
Petitioners’ Appendix
Page 11
with any index to determine how
the parties intend the alleged
continuing financing to be
arranged. ... We therefore
conclude that, as a matter of
law, the alleged oral contract to
provide future financing for
Woell's business fails for lack
of certainty of the contract's
terms. ..."
ia. at 7i7.
Similarly, in Labor Discount Center v.
State Bank & Trust Company, 526 S.W. 407,
425 (Mo. App. 1975) the court held that a
claimed oral agreement to continue interim
financing was not sufficiently definite as
to be enforceable where the due date,
security, rate of interest and the time for
repayment were not specified.
In Neujahr v. Producers Commission
Association, 838 F.2d 1003 (8th Cir. 1988),
a claimed contract was held to be
insufficiently definite to take it out of
the realm of the statute of frauds when the
writing did not state the salary at which
the plaintiff was to be employed, or the
Petitioners' Appendix
Page 12
various kinds of insurance the plaintiff
claims he was promised. The court said
that provisions of this kind "are essential
elements of the alleged oral contract."
Id. at 1004.
In the case at bar the evidence that
must be relied upon as proving a contract
is essentially the testimony of Joseph
Nelson. Beginning in about 1975 Joseph and
Margaret Nelson for several years borrowed
on a yearly basis from the Production
Credit Association of the Midlands (PCA)
for their short-term borrowing on a ranch
operation. Loan papers designated yearly
loans as due in one year and indicated the
specific security involved. When the
Nelsons needed more money, they would make
application to PCA for “additionals." By
August 1983, the operation had shown a loss
for three consecutive years and the balance
to become due at the end of 1983 was
Petitioners’ Appendix
Page 13
approximately $750,000. PCA expressed
concern about the loan's liquid margin and
the "historical loss trend." Exhibit 657.
Joseph Nelsons' testimony continued:
"O. ... Were you and your wife
in the fall of 1983 looking
for money to pay down the
PCA?
A. Yes, we were.
Q. And why were you doing that?
A. Because it was a request by
Rod Uhrig from the PCA that
we obtain four to $500,000
to put in as a pay down to
the PCA.
Q. Did Mr. Uhrig in addition to
requesting that pay down
also request something else
of you?
A. He requested a plan plus the
four to $500,000.
Q. So this plan is the, was on
of the responses to that
request?
A. Yes it was."
The Nelsons then developed a "ranch
plan" (Exhibit 65) with the help of Dr. Pat
Reece and Jim Robb that contemplated
Petitioners' Appendix
Page 14
completely stocking the ranch with feeder
cattle to utilize the resources. Joseph
Nelson testified that the Nelsons discussed
the ranch plan with Wayne Goff, the
president of the PCA, on November 3, 1983,
at which Mr. Nelson told Mr. Goff of the
plan and said, "we must fill up the
pastures with calves, and we've got to fill
the ranch completely" to which Goff
replied, "we certainly need to do something
and that sounds like it's probably a pretty
good idea." Then in response to the
question, "Did he tell you then that he
would loan you money to fund the ranch
plan?" Nelson testified: "Well, he said
we can't do anything at this time until we
get money put in here. We were shut off at
that time, and he would not do anything
until we come up with the money. They
wanted to pay down to four to five hundred
thousand dollars."
Petitioners' Appendix
Page 15
Nelson testified that Goff suggested
that the Nelsons go to the Federal Land
Bank for pay down money. Nelson testified
that they went to the Federal Land Bank and
applied for a loan of little over
$500,000.00, but the loan was denied.
They then went to Travelers Insurance
Company and received a commitment to loan
the Nelsons $350,000.00. They then relayed
that fact to Goff and asked whether that
would "be enough to make the plan work.
And he said that would be fine."
Joseph Nelson testified that in
February 1984, he talked with Tom Willnerd,
telling Willnerd about the "ranch plan" and
said that "we had to fill up the ranch with
cattle, stock it completely." Nelson told
Willnerd that Nelson and Skip Marland of
Travelers Insurance Company had met with
Dr. Pat Reece about the ranch plan. At
that time the Nelsons had two delinquent
Petitioners' Appendix
Page 16
notes with the Federal Land Bank--one on
the ranch and one on the farm. Nelson
asked Willnerd for money to pay those
loans, “but until there was a definite
commitment by Travelers we were--there was
no funds available." Willnerd said the
ranch plan "was a good idea because there
had to be a definite plan here in the works
in order for them to do this." Willnerd
said, "we had to have Travelers' money in
there to be able to do this, have a
definite commitment from Travelers before
there would be any funds."
"This," as referred to in the
foregoing conversation with Willnerd, was
not identified in the testimony of Nelson
any more specifically and the only
reference it reasonably can be said to have
is the request for money to pay the
delinquent loans on the ranch and farm.
With respect to funding the ranch
plan, Nelson testified:
Petitioners' Appendix
Page 17
"Q. Did Mr. Willnerd say that
the amount of money coming
from Travelers would not be
enough for the PCA to fund
your plan?
A. No, he did not.
Q. Did Mr. Willnerd make any
comments about the
inadequacy of the amount of
money you were borrowing
from Travelers?
A. No, he did not.
Rk
Q. And was there any discussion
about the--first of all,
what was the term of the
Travelers' loan?
A. The term of the Travelers'
loan was for three years and
this was brought up that we
had to have three years on
this plan to implement this
plan.
kkk
A. Yes, it was discussed that--
at the meeting there that we
had to have at least three
years, that Skip Marland
made it quite clear to Tom
Willnerd at the time he said
whatever we do the ranch
plan's going to take three
years, my loan is for three
years.
kkk
Petitioners' Appendix
Page 18
kkk
As
--- Mr. Nelson, after that
did Mr. Willnerd teli you
any reason why the PCA
couldn't go with you for
three years?
No, he did not.
Did Mr. Willnerd say that
the PCA would not go with
you for three years?
No, he did not.
Mr. Nelson, was anything
else discussed at this
meeting?
Not that I recall."
The next meeting with Mr. Willnerd was
on February 24, 1984, when Exhibit 704, an
application for a loan of $677,823.05 was
made. Willnerd prepared the document and
Nelson signed it, which contemplated the
purchase of 425 calves. Nelson's testimony
continued:
ai?
..-. Mr. Nelson, without
telling us what your cattle
buyer said, just explain why
you signed this document for
the purchase of 425 head.
Petitioners' Appendix
Page 19
kk*
xk
Well, we needed--we had so
much grass available there,
and until we got the funds
from the Travelers, they
didn't want tc curn loose of
very much, and I could take
in a thousand head at that
time and it was getting late
to buy this many calves that
were out in the spring here,
and I could take in another
thousand to run with these,
and so thats what I did and
then we agreed, Tom said
that if we could do this for
now--
--.- Okay. So there was--was
there discussion, Mr.
Nelson, about the timing of
the time of the year that
these cattle were being
purchased?
Yes, there was.
And what did you tell Mr.
Willnerd?
THE WITNESS: That it was
getting late in
the spring and it
was going to be
hard to find this
many good calves
that hadn't been
warmed up at this
time of the year,
and that I could
Petitioners' Appendix
Page 20
take in a thousand
and so we agreed
that by taking in
these thousand--
Q. ... I just want you to tell
me, Mr. Nelson, what you
told Mr. Willnerd.
A. That we could take these
other thousand in for now
then.
Q. What did Mr. Willnerd say to
you?
A. He said he thought--
zee
THE WITNESS: He said that he
agreed with that,
this would be a
good idea and we
could start buying
calves early next
fall to fill it up
then."
Thereafter, Joseph Nelson testified,
he applied for a loan from Travelers.
Travelers required a letter of credit in
the amount of $17,500.00 from PCA and
Nelson went to Wayne Goff for that letter.
Goff said that he would send such a letter.
Nelson's testimony continued:
"Q. Was there anything else said
at this meeting?
Petitioners' Appendix
Page 21
A. Unless this was the time
that I asked him if the
$350,000 was going to be
enough to make the ranch
plan work, and he says that
would be fine.
kk
A. He said that--I asked him if
$350,000 was going to be
enough, they wanted four
hundred to five hundred
thousand, and I says is that
going to be enough to make
this plan work, and he says
that would be fine.
Q. Was there anything else
said?
A. Not that I recall."
The next meeting was in November 1984,
with Willnerd. At that meeting Exhibit
718, an application for loan from PCA was
filled out on November 14. Travelers’
money had come in on July 31, 1984, and
$96,000.00 of that was used to pay off the
Federal Land Bank, the balance going to the
PCA. Nelson said that before he filled out
the application for the loan, Exhibit 717,
in the amount of $453,391.24 Willnerd did
Petitioners’ Appendix
Page 22
not tell Nelson anything about any
discussions that he had had with other loan
officers about the loan or any discussions
that we had had with the board of directors
about the loan. The application, Exhibit
717, anticipated the purchase of 625 feeder
calves. Nelson said that he had signed
that document:
"A. Because Tom Willnerd said--
told him we needed to
purchase a thousand and he
said well, let's do the 625
for now, and I'll get you
another four hundred. I'll
go to the loan committee and
get you another four
hundred.
Q. .-- Did you tell Mr.
Willnerd--did you express to
him the importance of
filling up your ranch?
A. Yes, I did I said we've got
to fill it to utilize the
resources, to up the
production, up the profit.
Q. Did he disagree with that?
A. No, he said he certainly
knew that we had--we'd be
understocked, it looked
like, and that we needed to
Petitioners' Appendix
Page 23
do something, and he would
take this to the loan
committee, wanted us to sign
this and he would take the--
he would go to the loan
committee and get another
four hundred.
x**
Q. And at this--at this meeting
when you're signing this
document did Mr. Willnerd
tell you that you would have
to sign a memorandum of
understanding?
A. Yes, after I had signed
everything--
Q. Just at this meeting?
A. I'm sorry, yes, he did. In
November, yes.
kak
A. I had signed all these
things, and he said he was
sorry, he forgot to have me
sign something. I said what
was that, and he said just a
minute, I'll be right back.
About five minutes, ten
minutes he come back and I
said what's this, and he
said well, it's a memorandum
of understanding, and I was
surprised and I said what
does it say, and he says
well, so he handed it to me
and let me read it, he says
Mr. Goff says that this goes
Petitioners' Appendix
Page 24
with the loan, they wanted
it for their files. It was
after I'd signed all this
other stuff.
Q. Was your wife present?
A. Yes, she was.
Q. Did Mr. Willnerd explain
anything further about the
memorandum of understanding
to you?
A. Well, he went through it
with us and he said that if
we didn't make the $29,725,
I think it was, that we had
to find a different lender.
Well--
Q. On that point, Mr. Nelson,
what did Mr. Willnerd say
about the $29,000?
Ae Well, my wife asked him if
we could make that much
money and he said it would
be easy with this plan that
you have.
Q. Did you sign it right away?
A. No, we left the office and
drove out around and
discussed it.
Q. Now, Mr. Nelson, would you
please turn to Exhibit 60 in
your book? Is that the
memorandum of understanding?
x. Yes, it is.
zk
Petitioners' Appendix
Page 25
0
A. We drove out, I was--I
didn't know, I couldn't
understand why they wanted
this, and neither--I said
we've got to have some time
to think about this a little
bit, Tom. So we drove, we
left the office and drove
around and we came--we read
it and we thought we could
do what it said, so we came
back and signed it.
Q. Was there any discussions
with Mr. Willnerd after you
came back?
A. No, not really. We just
Signed it and--
Q. Then what happened?
A. We left the office.
Q. Now, during this meeting
with Mr. Willnerd, at any
time did Mr. Willnerd tell
you that the PCA was not
going to go along with your
ranch plan?
A. No, he did not.
Q. Did you go out then and
start buying cattle?
A. No, we didn't.
Q. Why not.
Petitioners' Appendix
Page 26
A. There was no funds to start
buying these cattle. They
had to take it to the loan
committee.
Q. Okay. After this meeting in
November, in December did
you want to buy some cattle?
A. Yes, definitely.
Q. Did you call Mr. Willnerd to
tell him that?
A. Yes.
Q. What did he say?
A. He said I had to take it to
the loan committee."
Giving the foregoing the construction
most favorable to the Nelsons, it does not
support a conclusion that PCA agreed to
provide operating capital for the expansion
of the Nelsons' ranch operation to full
productivity over a three-year period or to
restructure the Nelsons' debt situation to
permit proper funding of the Nelsons'
ranching operation.
Furthermore, it is undisputed that
Willnerd did not have the authority to
Petitioners' Appendix
Page 27
at eee
commit PCA to such an agreement and each of
the loans about which Joseph Nelson talked
with Willnerd and which were consummated in
writing were one-year loans approved by the
loan committee and not by Willnerd alone.
Nothing said by Wayne Goff could be
construed reasonably as a commitment by PCA
to provide operating capital for a full
preductivity of the ranch over a three-year
period or to restructure the debt.
Stretching the evidence to the point
of construing some kind of a three-year
agreement would still leave the terms of
such an agreement too indefinite to permit
the enforcement of the contract. There was
no evidence of anything the Nelsons agreed
to do, other than an agreement to sell a
farm at the highest price per acre as
quickly as possible. There was no evidence
of the total amount to be loaned, or the
amount to be loaned in any one year (except
Petitioners’ Appendix
Page 28
the two written agreements, Exhibits 704
and 717, which are complete contracts in
themselves and there is no claim that
either of these was breached), or how
repayment was to be made, or the interest
rate to be charged, or when repayments were
to be commenced or ended or the nature of
the security. There was no course of
dealing between the parties that could
supply by inference any of these terms,
because always the agreements in the past
had been on a year-to-year basis with the
repayment terms and interest rates fixed by
agreement each year.
I conclude that the evidence did not
support the finding of a contract to
provide operating capital for the expansion
of the Nelsons' ranch operation to full
productivity over a three-year period or to
restructure the Nelsons' debt situation to
permit proper funding of the Nelsons’
Petitioners' Appendix
Page 29
ranching operation. Furthermore, I find
that the terms of the contract, if a
contract could be found, were not
reasonably certain and, therefore, there
could be no recovery for a breach. See
Restatement of the Law Second, Contracts
2d, § 33.
Accordingly, the motion for judgment
notwithstanding the verdict must be granted
as to the breach of contract claim.
II. Misrepresentation
The defendant asserts that the
instruction to the jury on
misrepresentation was prejudicially
erroneous because it required "that the
representation was made fraudulently." The
defendant says that the plaintiffs' claim
for fraudulent misrepresentation was
dismissed and the only remaining claim was
one for negligent misrepresentation, which
does not require that the plaintiffs prove
Petitioners' Appendix
Page 30
that the representation as made
fraudulently. The exact status of
Nebraska's law with respect to
misrepresentation is somewhat murky, but I
submitted the issue of misrepresentation
under the heading "MISREPRESENTATION,"™ not
under either the heading "FRAUDULENT
MISREPRESENTATION" or “NEGLIGENT
MISREPRESENTATION." It was submitted in
terms of burden of proof most favorable to
the defendant, because it required the
plaintiff to prove that the representation
was made fraudulently. Even if the law of
Nebraska is that there is no requirement
that representation be made fraudulently,
it was no prejudice to the defendant to
have that additional requirement included
as a plaintiffs' burden. While I do not
have a transcript of the objections made to
the instructions, I am confident that the
defendant did not object to the inclusion
Petitioners' Appendix
Page 31
of the requirement that the representation
be fraudulent, although it is likely that
the defendant objected to the submission to
the jury in any fashion the issue of
misrepresentation.
Additionally, the defendant argues
that the six alleged misrepresentations
submitted to the jury should not have been
submitted because of a lack of evidence.
The first matter submitted to the jury
was:
"the intention of PCA to provide
financing for the Nelsons'
ranching operations in accordance
with the ranch plan in the 1984,
1985, and 1986 operating years."
A careful review of the evidence on this
subject persuades me that there was
insufficient support for that claimed
misrepresentation to permit it to be
submitted to the jury. The testimony of
Joseph Nelson, the strongest testimony
there was regarding any representations by
Petitioners' Appendix
Page 32
any of the PCA personnel, is set out at
some length in the section of this
memorandum relating to claim of breach of
contract. A review of it shows that there
simply was no evidence that PCA represented
that it intended to provide financing for
the Nelsons' ranching operations in
accordance with the ranch plan in the 1984,
1985, or 1986 operating years.
The second claimed misrepresentation
was:
"that the PCA had a special
concern for its members beyond
that of a regular commercial bank
and that the PCA would conduct
its business according to this
special concern."
There was testimony at the trial that
PCA differed from a commercial bank in that
it was involved only in agricultural
lending and that it considered its
borrowers to be members. I have already
ruled that there was no fiduciary duty owed
by the PCA to the Nelsons and the
Petitioners' Appendix
Page 33
plaintiffs have submitted me nothing to
persuade me otherwise. The evidence does
not support a claim that any such
representation was false or that the
representation was made fraudulently or
that the Nelsons relied upon it or that
there was any damage from it.
The third claimed misrepresentation
was:
"the terms and conditions of the
relationship between the parties
after the Fall of 1983."
This broad, undefined claim is so
indefinite as to have no substance. The
plaintiffs' briefs in resistance of the
present motions and their trial brief do
not appear to deal with the specifics that
are claimed to inhere in this general
Claim. I simply cannot tell what terms and
conditions are supposed to have been
misrepresented. If they have to do with a
Claimed agreement to fund the Nelsons'
Petitioners' Appendix
Page 34
operation over a three-year period in
accordance with the ranch plan, I already
have concluded that there is insufficient
evidence to support any claim that there
was such an agreement. I do not know what
other "terms and conditions" this claim
represents. Accordingly, it should not
have been submitted to the jury.
The fourth claimed misrepresentation
was:
"that the reasons for the PCA's
requirement of cash pay down of
the Nelsons' loan with the PCA
was to make the PCA's loan a
sound loan for PCA and the
Nelsons."
The requirement of a cash pay down of
the loan was first made, apparently by
Rodney Uhrig. By letter dated August 19,
1983, he expressed concern about Nelsons'
declining financial position, the loan's
workability, and the Nelsons' repayment
capacity. He said there were several
options availat’e, including sale of
Petitioners' Appendix
Page 35
_
livestock and real estate, but said that
"the fact remains that your financial
position requires substantial debt
reduction (more than sale of the cowherd
alone can achieve) as well as a reduction
in overall operating costs if the loan is
to return to a workable cashflow position.
...-" After a meeting between Joseph Nelson
and Uhrig, Uhrig wrote Nelson:
"In order for the PCA to finance
a program similar to that which
you followed in the past year, a
livestock margin position of
$200,000 would need to be
provided. To achieve this,
additional long-term financing of
$400,000-$500,00 would have to be
obtained to retire the estimated
PCA carryover debt, plus purchase
of 600 head of calves. From our
standpoint, the $400,000 figure
is a minimum, since the loan's
liguid margin could deteriorate
swiftly if your historical loss
trend continues.
Finally, I should stress the
point which I made earlier, that
if you choose to pursue the
refinancing route, you should
make every effort to obtain the
maximum loan possible, since our
position will rely almost
Petitioners' Appendix
Page 36
entirely upon a liquid margin
with secondary collateral of
machinery and a third mortgage
with limited equity. ..."
Exhibit 657.
Nelsons tried to get a loan of
$542,000.00 from Federal Land Bank, but the
bank refused to make the loan. Nelsons
then went elsewhere, but the best loan they
were able to make was with Travelers
Insurance Company in the amount of
$350,000.00, of which about $250,000.00
went to PCA for the pay down. In reviewing ~
the evidence I simply find nothing to
suggest that there was any
misrepresentation involved as to the
reasons for the requirement of a pay down.
The only reason stated, as far as I can
tell, were to enable PCA to renew the loan.
That did not involve a misrepresentation.
The fifth claim of misrepresentation
was:
"that the $350,000.00 loan from
Travelers would pay down the PCA
and permit the PCA to fully fund
Petitioners' Appendix
Page 37
the Nelsons' cattle operation to
a maximum production level as
provided by the ranch plan."
As analyzed elsewhere, there was neither an
agreement nor a representation that PCA
intended to or agreed to fully fund the
Nelsons' cattle operation to a maximum
production level as provided by the ranch
plan.
The sixth claimed misrepresentation
was:
"by telling Travelers and the
Nelsons that PCA intended to go
along, in good faith, as the
Nelsons’ operating lender for a
three-year period so that the
Nelsons could implement their
ranch plan and work their way out
of debt."
The evidence does not support the claim
that PCA ever told that to the Travelers or
to the Nelsons.
It follows that the motion for
judgment notwithstanding the verdict with
respect to the claim of misrepresentation
must be granted.
Petitioners' Appendix
Page 38
III. Negligence
In the plaintiffs’ trial brief the
plaintiff says:
"While courts have generally not
found a cause of action for
negligent lending of money, there
is a trend which finds that a
bank or other lender can be
liable when there is a special
nexis [sic] between the life
lender and the borrower."
Plaintiffs' Trial Brief, p. 73. They cite
only Jacgues v. First National Bank, 515
A.2d 756 (Md. 1986), and Djowharzadeh v.
City National Bank and Trust Co., 646 P.2d
616 (Okl. App. 1982). In the latter case
the court held that summary judgment was
inapplicable where a bank customer alleged
that a loan officer wrongfully disclosed
confidential financial investment
information to the bank president's wife
and the wife of the chairman of the board
of directors, who then bought the
investment property for their own account,
causing the customer to lose a valuable
Petitioners' Appendix
Page 39
CO
real estate investment opportunity. The
court held that there is a duty on the part
of the bank of confidentiality owed to the
customer not to reveal purposes for which
the customer expects to invest the loan, if
made.
The sole case in the plaintiffs'
briefs that involves a holding that a
lender has a tort duty to use reasonable
care in the making of a loan is Jacques v.
First National Bank, 307 Md. 527, 515 A.2d
756 (1986). There a customer sought a loan
to buy a residence. The bank agreed, for a
$144.00 appraisal fee, to process the
application and to hold the interest rate
at 11 7/8 percent for 90 days.
On a negligence theory the jury in
Jacques awarded $10,000.00.
In upholding the jury award the
appellate court analyzed the case as
follows: Since the harm likely to flow
Petitioners’ Appendix
Page 40
EE
from a failure to process a loan
application carefully is an economic one,
the relationship that needs to exist
between the parties as a prerequisite for
imposing a tort duty must be closer than if
the harm were for physical injury.
Generally no tort duty will be found absent
a showing of privity or its equivalent,
where the risk of harm is economic loss.
Here there was a contract--to process the
application and to hold the interest rate
at 11 7/8 percent for 90 days. Valid
consideration was given--the $144.00.
Implicit in that contract is the agreement
to perform with reasonable care. In
dealing with the question of whether a tort
duty should be recognized under those
circumstances, the court said that the bank
took on a significant obligation in
agreeing to process the application,
because the bank knew that Jacques had
Petitioners' Appendix
Page 41
aii
agreed either to proceed with the
settlement of the purchase or forfeit a
$10,000.00 deposit and lose tne benefit of
their bargain. In view of the dramatic
increase in the prime rate of interest
while the loan was being processed and the
short time the Jacques were given by the
contract to try for alternative financing
(51 days), the court considered it doubtful
that the Jacques had the ability to get
alternative financing.
.
The Maryland court also spoke of the
public nature of the banking business and
noted that:
"The law generally recognizes a
tort duty of due care arising
from contractual dealings with
professionals such as physicians,
attorneys, architects, and public
accountants. Additionally, we
have recognized that in those
occupations requiring peculiar
skill, a tort duty to act with
reasonable care will be imposed
on those who hold themselves out
as possessing the requisite
skill."
Petitioners’ Appendix
Page 42
Accordingly, the Maryland court held that a
tort duty was placed upon the bank in the
circumstances of that case.
The court rejected the argument that
lending is an art, rather than a science,
and that a difference of opinion might be
present among persons making such loans.
The same, the court said, could be said of
physicians, yet a tort duty is imposed upon
physicians. It also says that evidence of
the practice of many banks of the defendant
bank established the standard.
In the case at bar the plaintiffs'
brief in opposition to the defendant's
motion for judgment notwithstanding the
verdict and new trial cites at page 4
Federal Land Bank of Omaha v. Gibbs, 809
F.2d 493 (8th Cir. 1987) for the
proposition that institutions of the Farm
Credit System are subject to common law
Petitioners' Appendix
Page 43
theories "such as negligence, contract,
fraud, etc." But the Gibbs case stands for
nothing as broad as that. What is says at
page 496 is:
"Buried under the meritless RICO,
section 1983, and antitrust
claims, the one contention of the
Gibbs that has merit, if their
allegations are correct, is that
the P.C.A. reneged on its
agreement to provide them with
funds to make the FLB payment, to
buy cattle, and to keep their
farm operating."
but says nothing at all about a common law
duty to use due care.
The plaintiffs argue that there was a
fiduciary relationship between the Nelsons
and the PCA, but I previously have held
that such was not the case and I am
persuaded that I was correct. Nothing that
I have been able to find or that counsel
have been able to show me suggests that
under Nebraska law there was such a
fiduciary relationship. Furthermore, no
case in Nebraska has held or even hinted
Petitioners' Appendix
Page 44
that a lender has a tort duty to use
reasonable care in the making of a loan. I
conclude that if the issue were presented
to the Supreme Court of Nebraska it would
decline to impose upon a lender such a
duty.
Even if the Nebraska Supreme Court
were to adopt the same reasoning as was
used by the Maryland court in the Jacques
case, that would not reach the present
case. In Jacques the bank and the
customers had a specific contract,
buttressed by consideration. In the
present case there was no evidence of a
contract to do anything with respect to the
Nelsons. Even if there were evidence to
Support the plaintiffs' theory of an
agreement by the PCA to provide operating
Capital for the expansion of the Nelsons'
ranch operation to full productivity over a
three-year period and to restructure the
Petitioners' Appendix
Page 45
Nelsons' debt situation to permit proper
funding of the Nelsons' ranching operation,
that claim was sued under the breach of
contract theory and cannot form a separate
Claim in negligence. Nothing in Jacques
nor in Nebraska law suggests that both a
contract action and a negligence action are
permitted when duties rest upon a contract.
When a claim is based upon a failure to
comply with an express contractual
provision, the nature of the action is in
contract rather than in negligence. See L.
J. Vontz Construction Co. v. State of
Nebraska, 230 Neb. 377, N.W.
(1988); Fuchs v. Parsons Construction Co.,
166 Neb. 188, 88 N.W.2d 648 (1958).
In Labor Discount Center, Inc. v.
State Bank & Trust Company of Wellston, 526
S.W.2d 407 (Mo. App. 1975) the court said:
"The finding of the trial court
that plaintiff failed to prove a
contract of sufficiently definite
terms to admit of enforcement is,
in our opinion, well-founded.
Petitioners' Appendix
Page 46
The amount of the alleged promise
for additional interim financing
was the subject of inconsistent
testimony by some of plaintiffs'
own witnesses, although one might
conclude that the most likely
figure was $500,000. There was
not, however, any evidence as to
due date, security, rate of
interest, time for payment, etc.
Taken alone, the absence of any
one of these terms might not be
of great significance; viewed
collectively, however, their
absence is fatal and he alleged
promise was correctly found by
the trial court to be too
indefinite to admit of
enforcement. John Deere Company
of St. Louis v. Short, 378 S.W.2d
496, 503 (Mo. 1964); Restatement,
Contracts § 32 (1932)."
In John Deere Company of St. Louis v.
Short, supra, the court said:
"... Nor was John Deere under any
contractual obligation to grant
cash loans or equipment loans to
Short, either by the provisions
of the three written contracts
entered into by the parties, or
as a result of I. L. Parks'
gratuitous promise that John
Deere would make a loan to Short.
Short contents [sic] that I. L.
Parks' statements that the
company would make short a loan
resulted in a contractual
obligation on the part of John
Deere to make a loan, but such a
promise would be unenforceable
for uncertainty if for no other
Petitioners' Appendix
Page 47
CE |
reason, since there was nothing
said about the terms of the
prospective loan--what amount,
when the loan was to be made
(except the vague reference to
‘in the spring'), the due date
for repayment, security, etc.
More importantly, Parks had no
authority to make such a
commitment on behalf of John
Deere. Under the evidence the
only person in the John Deere
organization who had that
authority was the vice-president
and general manager. Nor do we
find any basis for an estoppel to
deny Parks' authority, as
claimed.
The defendant has asked that the
issues regarding negligence be certified to
the Supreme Court of Nebraska. The
plaintiffs, against whom I now find on the
issues, have asked that I not certify those
issues and I shall not do so.
There was, of course, evidence
throughout the trial of agreements between
the parties consisting of loans and
promises to repay. Those are not the loans
that are at issue here, except in the
counterclaim. No duty to make new loans or
Petitioners' Appendix
Page 48
to extend loans already made arose from
previous loans made by the defendant to the
plaintiffs.
MOTION FOR NEW TRIAL
Rule 50(c) of the Federal Rules of
Civil Procedure provides:
"(1) If the motion for judgment
notwithstanding the verdict,
provided for in subdivision
(b) of this rule, is
granted, the court shall
also rule on the motion for
a new trial, if any, by
determining whether it
should be granted if the
judgment is thereafter
vacated or reversed, and
shall specify the grounds
for granting or denying the
motion for the new trial.
If the motion for a new
trial is thus conditionally
granted, the order thereon
does not affect the finality
of the judgment. In case
the motion for a new trial
has been conditionally
granted and the judgment is
reversed on appeal, the new
trial shall proceed unless
the appellate court has
otherwise ordered. In case
the motion for a new trial
has been conditionally
denied, the appellee on
appeal may assert error in
that denial; and if the
Petitioners' Appendix
Page 49
eee
judgment is reversed on
appeal, subsequent
proceedings shall be in
accordance with the order of
the appellate court.
(2) The party whose verdict has
been set aside on motion for
judgment notwithstanding the
verdict may serve a motion
for a new trial pursuant to
Rule 59 not later than ten
Gays after entry of the
judgment notwithstanding the
verdict."
The standard for review on a motion for new
trial is set out in Wyatt v. Interstate &
Ocean Transport Co., 623 F.2d 888 (8th Cir.
1980):
"The motion for a new trial on
the merits, however, requires a
review of the evidence under a
different standard. Under Rule
59, F.R.Civ.P., a trial court may
weigh the evidence and consider
the credibility of the witnesses.
Indeed, a trial judge has a duty
to set aside a verdict and grant
a new trial even though it is
supported by substantial
evidence, ‘if he is of the
opinion that the verdict is
against the clear weight of the
evidence, or is based upon
evidence which is false or will
result in a miscarriage of
Petitioners’ Appendix
Page 50
justice ...' Williams v. Nichols,
266 F.2d 389, 392 (4th Cir.
1959), citing, Aetna Casualty &
Surety Company v. Yeatts, 122
F.2d 350 (4th Cir. 1941)."
I. fe) ontra
If it later is determined that the
judgment notwithstanding the verdict was
improperly awarded the defendant and it is
concluded that there was a contract in
which PCA agreed to provide operating
capital for the expansion of the Nelsons'
ranch operation to full productivity over a
three-year period and to restructure the
Nelsons’ debt situation to permit proper
funding of the Nelsons' ranching operation,
I need to resolve the question of whether
the issues presented to the jury were
properly presented.
The first submission was that the jury
might find a breach by PCA "by unreasonably
calling the Nelsons' loan and failing to
look at the possibility of the Nelsons’
ability to work out their debt situation by
,
Petitioners' Appendix
Page 51
following the ranch plan." There was
adequate evidence of the PCA's unreasonably
calling the Nelsons' loan. There was not
evidence, however, that PCA "failed to look
at the possibility of the Nelsons' ability
to work out their debt situation by
following the ranch plan." PCA did look at
the possibility. It did not accept the
ranch plan, but that is quite different
from looking at the “possibility.” Thus as
to that submission, I would grant a new
trial.
The second submission was of a breach
"by failing to assist the Nelsons in
development of a viable ranch plan." If
PCA agreed to follow the ranch plan, then
there was evidence that it failed to follow
it and thereby failed to assist the Nelsons
in the development of a viable ranch plan.
The third submission was of a breach
"by only looking after the PCA's own
Petitioners' Appendix
Page 52
interests and not to any interest of the
Nelsons." There was evidence that PCA
looked after its own interests only.
The next submission was of a breach by
"sclacking off of agreements and
understandings that had been entered into
by the parties." Again, if there was
sufficient evidence of a contract to fund
the ranch plan for three years, there was
evidence of a slacking off of that
agreement.
The next submission was of a breach
"by offering substandard performance in
agricultural credit analysis and advice and
thereby increasing the risk of potential
default of the Nelsons." That submission
Was properly submitted to the jury, if
there was a contract to provide operating
Capital for the expansion of the Nelsons’
ranch operation to full productivity over a
three-year period.
Petitioners’ Appendix
Page 53
5
The last submission was of a breach
"by unnecessarily increasing the risk of
nonpayment by the Nelsons." There was
evidence to support that claim, if a
contract existed.
The defendant argues that the evidence
regarding damages was insufficient, but I
am not inclined to think so. There was,
however, strong evidence in opposition to
the testimony of the plaintiffs' expert,
Ellsworth Bartlett, but all things
considered, the jury had before it
sufficient information from which to make a
judgment about damages. Thus, I conclude
that the only ground for granting of a new
trial on the breach of contract claim was
the failure of evidence to support the
allegation that PCA failed to look at the
"possibility" of the Nelsons' ability to
work out their debt situation by following
the ranch plan. But on that ground, a new
trial would need to be ordered.
Petitioners' Appendix
Page 54
II. Misrepresentation
My earlier analysis regarding the
specific issues of misrepresentation
indicates that none of the six submissions
was supported by the evidence. Even if
one, but less than all, of the submissions
was supported by the evidence, the fact
that the remainder were not would require
the granting of a new trial on the
misrepresentation claim.
III. Negligence
If it later be determined that under
Nebraska law a negligence claim was
possible, I am then obligated to determine
whether there was sufficient evidence on
each of the issues of negligence presented
to the jury.
The first was negligence "by failing
to follow the recommendations of the ranch
plan in any lending after the Fall of
1983." There was evidence to support that
claim.
Petitioners' Appendix
Page 55
nll iieaiill
The second claim of negligence was "by
failing to take into consideration the
desires of the Nelsons to work out their
debt with the PCA." I do not find any
evidence to support that issue. The
evidence seems to me to have been that PCA
did take into consideration the desire of
the Nelsons to work out their debt, but not
in the same manner that the Nelsons'
desired. I do not find in the plaintiffs’
expert's testimony that the standard of
care in the industry required a yielding to
the Nelsons' desire as completely as the
stated submission would require.
The third claim of negligence was "by
failing to consider all sources of
information, including the ranch plan, the
people who wrote the plan, the information
available from the Extension Service, range
management data from the University of
Nebraska, and marketing techniques
Petitioners' Appendix
Page 56
information from the University of Nebraska
and the Farm Credit System." I think there
was insufficient evidence to submit that
issue to the jury. There was no evidence
that PCA did not consider the ranch plan,
but other persons in PCA who were the loan
officers did discuss it and consider it,
although not with a deference that it may
have deserved.
The fourth submission was negligence
"by failing to administer the plaintiffs'
loan applications and loan renewals in
accordance with the accepted practice of
ioan administration for PCA and
agricultural lenders in Nebraska." The
plaintiffs’ expert Norman L. Peterson,
supported that claim.
Next was a submission of negligence
"by failing to comprehend the notion that
the problem in the Nelsons' operation was
Petitioners' Appendix
Page 57
not in the expense side, but on the income
side." This, also, was supported by Mr.
Peterson's testimony.
The next submission was negligence "by
failing to analyze and understand the
Nelsons' credit needs when PCA required a
pay down of its loan. I do not find in Mr.
Peterson's testimony or otherwise an
indication that the defendant owed to the
plaintiffs any duty as broad as is implied
by that submission. PCA did not fail to
analyze or understand the credit needs. It
may not have provided for those needs, but
it was net because of a failure to analyze
or understand. That submission should not
have been presented to the jury.
Next, was a Claim that there was
negligence "by failing to realize that the
only way the Nelsons could pay off PCA from
operations was through an increase in the
number of cattle up to full utilization
Petitioners' Appendix
Page 58
under an intensive range management
program. This is a close question, but I
am inclined to think that the evidence was
sufficient to support that claim.
Next, was a Claim of negligence "by
failing to provide the Nelsons with sound
loan advice in 1983 and 1984 when PCA told
the Nelsons that pay down of their debt
would increase the Nelsons' repayment
Capacity and that the 1984 operating money
and additionals were enough for the Nelsons
to make a profit." Again, the testimony
supported that claim.
The last submission was of negligence
"by not making a sound loan after the
Travelers' commitment in the Spring of
1984." If there was a contract to make a
loan permitting full utilization of the
ranch, then the evidence supported the
claim that there was not sound loan made in
the Spring of 1984.
Petitioners' Appendix
Page 59
Accordingly, I find that, within the
provisions of Rule 50(c) of the Federal
Rules of Civil Procedure, there needs to be
a conditional granting of the motion for
new trial.
IT THEREFORE IS ORDERED that the
motion for judgment neswitheténnine the
verdict, filing 249, is granted and the
motion for new trial, filing 249, is
granted if the judgment entered as a result
of the granting of the present motion for
judgment notwithstanding the verdict is
vacated or reversed.
IT IS FURTHER ORDERED that the motion
to stay proceedings to post bond and motion
to establish supersedeas bond pending
disposition of defendant's post-trial
motions, filing 258, are denied as moot;
and the defendant's motion to certify
questions of law to the Nebraska Supreme
Court, filing 262, is denied.
Petitioners' Appendix
Page 60
Dated August 25, 1989.
BY THE COURT
Warren K. Urbom /s/
United States District Judge
Petitioners' Appendix
Page 61
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 89-2554
Appeal from the
United States
District Court
for the District
of Nebraska
Joe Nelson and
Margaret Nelson,
Appellants,
Vv.
Production Credit
Association of
the Midlands,
+ eneneeeeee he & &
Appellee.
Submitted: June 13, 1990
Filed: April 9, 1991
Before JOHN R. GIBSON, Circuit Judge HEANEY
and TIMBERS, Senior Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Joe and Margaret Nelson appeal from-an
order granting judgment notwithstanding the
* The HONORABLE WILLIAM H. TIMBERS,
Senior United States Circuit Judge for
the Second Circuit, sitting by
designation.
Petitioners' Appendix
Page 62
I ie enn tt SEIN ay PAE
verdict in favor of Production Credit
Association of the Midlands (PCA). The jury
found in favor of the Nelsons on their
claims of breach of contract, negligence
and misrepresentation and awarded damages
to the Nelsons in the amount of
$1,278,000.00. The district court?
subsequently entered a judgment
notwithstanding the verdict for PCA on all
three claims, and, in the alternative,
granted the motion for a new trial.
On appeal, the Nelsons challenge the
judgment notwithstanding the verdict by
arguing that: (1) the district court
should not have relied on North Dakota
precedent when determining the validity of
an oral contract formed in Nebraska; (2)
sufficient evidence of misrepresentation
existed to sustain the jury's verdict; and
(3) the district court erred when it held
that PCA had no duty to lend money to the
1 The Honorable Warren K. Urbom, United
States District Judge for the District of
Nebraska.
Petitioners' Appendix
Page 63
Nelsons. Finally, Nelsons argue that the
district court abused its discretion when
it granted the provisional order for a new
trial. We affirm the district court's
entry of judgment notwithstanding the
verdict and do not reach the issue of the
ruling on the new trial motion.
Joe and Margaret Nelson were ranchers
in Morrill County, "Nebraska. They borrowed
money each year to purchase euttte and pay
their operating expenses. Each fall they
sold cattle to repay the loans. :
In 1975 the Nelsons changed lenders
from a local bank to PCA, a cooperative
organization. In November of each year,
the Nelsons would present financial
information to PCA and apply for a loan for
the upcoming year. After reviewing the
ranch's financial condition, the PCA would
decide whether to lend.” In exchange for
the loans, the Nelsons would give PCA a
2 The PCA approved and loaned the
Nelsons money every year in which they made
a loan application.
Petitioners' Appendix
Page 64
lien on all ranch livestock, products, and
machinery. In years when the ranch lost
money, the Nelsons included the losses in
the requested loan amount for the upcoming
year, thus carrying the debt forward.
The Nelsons incurred losses in five of
the seven years between 1977 and 1983.
During that time PCA became concerned about
the high expenses of the Nelson's farm and
their mounting debt. In 1983, one of PCA's
loan officers wrote to the Nelsons
explaining that before PCA would consider
the loan application for the 1984 operating
year, the Nelsons would have to devise and
implement a plan to reduce their
outstanding debt with PCA.’ PCA warned the
3 The August 1983 letter from Rodney S.
Uhrig to Joe Nelson contained the following
excerpts:
As I explained earlier this week,
we are extremely concerned about
your declining financial
position, the loan's workability,
and your repayment capacity. The
increasing negative trend has
placed the PCA in the position of
presently relying upon real
estate security for adequate
Petitioners' Appendix
Page 65
Nelsons: "Your financial position requires
substantial debt reduction (more than sale
of the cow herd alone can achieve) as well
as reduction in overall operating costs if
the loan is to return to a workable
cashflow position."
PCA's request for a "plan" prompted
the Nelsons to go to a management
specialist and an economist at the
University of Nebraska Panhandle Station
for help. These experts devised a Ranch
margin in one loan. As a short-
term lender, this position is
unacceptable, as is the
increasing risk associated with
the loan.
In light of the foregoing, the _
association must advise you that
to achieve the necessary debt
reduction before consideration
will be given to renewal of the
loan this fall or financing for
the upcoming year. We also will
require a workable realistic
quarterly cash flow within which
you will be expected to operate.
Appendix for Appellee at 1-2, Nelson v.
PCA, (8th Cir 1991) (No. 89-2554) (emphasis
added).
Petitioners' Appendix
Page 66
4
Plan* for the Nelsons. The Ranch Plan
analyzed the production potential of the
Nelsons' ranch, and proposed additional
stocking and intensive grazing techniques
to increase the ranch's profitability.
Three weeks after the August letter,
Rodney Uhrig of the PCA wrote a second
letter to the Nelsons stating:
Although I do not feel that
refinancing your present debt is
a solution to the problems that
your operation faces, it seems
that this alternative is the most
appealing from your perspective.
Therefore, unless we can agree
upon a plan for dealing with
those problems which is
satisfactory to both of us, your
alternatives are to either secure
4 There is some disagreement between the
parties whether this Ranch Plan was the
"plan" which PCA called for in its August
1983 letter. Nelsons argue that PCA
required the Ranch Plan before it would
continue lending the money. PCA, on the
other hand, argues that it called for a
plan other than the Ranch Plan, a plan that
would bring about a substantial reduction
in Nelsons' short term debt. Accordingly
to PCA, the primary feature of any such
plan had to be that it reduced the Nelsons’
short term debt to PCA. The Ranch Plan
which Nelsons presented to PCA did not
address debt reduction, but only examined
the potential operating uses of the ranch
property.
Petitioners’ Appendix
Page 67
financing through another source
or to provide the PCA with a
sufficient liquid margin to
offset the risk position of the
loan. In the latter case, our
credit decisions and future
financing can only be based upon
your ability to maintain this
liquid position.
In order for the PCA to finance a
program similar to that which you
followed in the past year, a
livestock margin position of
$200,000 would need to be
provided. To achieve this,
additional long-term financing of
$400,000-$500,000 would have to
be obtained to retire the
estimated PCA carryover debt,
plus purchase of 600 head of
calves. From our standpoint, the
$400,000 figure is a minimun,
since the loan's liquid margin
could deteriorate swiftly if your
historical loss trend continues.
Finally, I should stress the
point which I made earlier, that
if you choose to pursue the
refinancing route, you should
make every effort to obtain the
maximum loan possible, since our
position will rely almost
entirely upon a liguid margin
with secondary collateral of
machinery and a third mortgage
with limited equity. Considering
this position, our ability to
finance your operation under
Petitioners' Appendix
Page 68
adversity would continue only so
long as the liguid margin could
be maintained.
Appendix for Appellee at 4-5 (emphasis
added).
The PCA extended the 1983 loan past
its November 1983 maturity to allow the
Nelsons time to find a long-term lender and
restructure their debt. Finally, in
February 1984, when the Nelsons had
obtained a long-term loan commitment from
Traveler's Insurance Company, PCA renewed
the 1983 loan until November 1984.
Travelers loaned the Nelsons $250,000, of
which the Nelsons paid approximately
$240,000 to PCA.
During the 1984 operating year, the
Nelson's ranch lost $61,000. Asa
condition to lending money to the Nelsons
for 1985, PCA required the Nelsons to sign
a memorandum of understanding which
provided that if the ranch did not earn at
least $29,725 in the 1985 operating year,
the Nelsons agreed to find alternative
Petitioners' Appendix
Page 69
financing and pay off their PCA loan.
After careful consideration, the Nelsons
signed the agreement and received another
one-year loan from PCA.
In 1985 the Nelsons lost $170,000, and
by October of that year they owed PCA
approximately $383,000. Since then they
have not applied for a loan from PCA or
made any payments on the 1985 loan. When
PCA obtained an Order in Replevin, the
Nelsons filed for protection under the
Bankruptcy Code and an adversary proceeding
ensued. The bankruptcy court ultimately
transferred this case to the district
court.
At trial, the Nelsons raised three
primary claims. First, that their
discussions with PCA of a Ranch Plan
amounted to an oral contract in which PCA
obligated itself to finance the Nelsons for
a minimum of three years while they carried
out the proposed plan. The Nelsons claimed
six counts of breach of an oral contract,
Petitioners' Appendix
Page 70
primarily alleging that PCA unreasonably
called the Nelsons' loan and did not
adequately assist them in carrying out the
Ranch Plan.
- Although the jury found the existence
and breach of a contract, the district
court's order granting PCA's motion relied
on two grounds in concluding that no
contract had been formed. First, it
concluded that the r ‘evant evidence,
interpreted in the light "most favorable to
the Nelsons, did not support a conclusion
that PCA agreed to provide operating
capital for the expansion of the Nelson's
ranch operation to full productivity over a
three-year period or to restructure the
Nelsons' debt situation to permit proper
funding of the Nelsons' ranching
operation." Nelson v. Production Credit
Association, CV88-L-238, slip op. at 10,
(D. Neb, Aug. 25, 1989) The court also
held that even if the evidence did point to
some kind of agreement, the terms of such
Petitioners' Appendix
Page 71
an agreement were "too indefinite to permit
the enforcement of the contract." Id.
The Nelsons' second claim was that PCA
made six separate misrepresentations to
them. These were: (1) that PCA intended
to fund the Ranch Plan, (2) that PCA had
special concern for its members beyond just
acting as their commercial bank, (3) that
the relationship between PCA and the
Nelsons was more than just commercial
lender and borrower, (4) that Nelsons were
required to pay down their loan with PCA in
order to make their ongoing loan
relationship sound for both parties, (5)
that getting $350,000 from Travelers and
paying down the PCA loan would permit PCA
to fund Nelsons' ranch plan, and that (6)
PCA intended to act as the ranch's
operating lender for at least three years
so that the Nelsons could implement the
ranch plan and work themselves out of debt.
The district court thoroughly
considered the Nelsons' six claims of
Petitioners' Appendix
Page 72
TEE SOOO
misrepresentation and concluded that the
strongest testimony presented at trial,
viewed in the light most favorable to the
Nelsons, did not support an actionable
misrepresentation claim, and, therefore the
misrepresentation claim should not have
been submitted to the jury. Id. at 11-14.
The Nelsons' third claim was that PCA
negligently failed to support the Nelsons'
efforts to carry out the ranch plan. In
their complaint, the Nelsons enumerated
nine separate grounds for this negligence.
Judge Urbom reviewed Nebraska tort law une
concluded that PCA owed no fiduciary or
common law duty to the Nelsons and that
there could be no duty because no contract
existed between the Nelsons and PCA.
The court also stated that even if
evidence existed to support a contract to
lend the Nelsons money, "that claim was
sued under the breach of contract theory
and cannot form a separate claim in
negligence. Nothing in... Nebraska law
Petitioners' Appendix
" > Page 73
suggests that both a contract action and a
negligence action are permitted when duties
“rest upon a contract. When a claim is
based upon a failure to comply with an
express contractual provision, the nature
of the action is in contract, rather than
in negligence." Slip op. at 16 (citing L.
J. Vontz Constr. Co. v. Nebraska, 230 Neb.
377, 432 N.W. 7 (1988); Fuchs v. Parsons
Constr. Co., 166 Neb. 188, 88 N.W.2d 648
(1958)). Because PCA owed the Nelsons no
duty, fiduciary or otherwise, in its
lending relationship with the Nelsons, the
district court held that as a matter of law
no reasonable jury could find negligence. >
This appeal followed.
S The court went on to review the nine
negligence claims presented to the jury to
determine whether, assuming a duty did
exist, there was sufficient evidence to
warrant presenting each claim to the jury.
The court concluded that if a subsequent
reviewing court did find that the PCA owed
the Nelsons a duty when lending them money,
then the evidence on six of the nine
Claims, when viewed in the light most
favorable to the Nelsons, was sufficient to
justify submitting the negligence question
to the jury. Thus, in the event that this
Petitioners' Appendix
Page 74
q.
The district court's decision to enter
a judgment notwithstanding the verdict is a
ruling of law that we review de novo, and
our inquiry is the same as the district
court's. Cleverly v. Western Elec. Co.,
594 F.2d 638, 641 (8th Cir. 1979) (per
curiam).
When reviewing the district court's
grant of a judgment notwithstanding the
verdict, we:
1) consider the evidence in
the light most favorable to [the
Nelsons], who prevailed with the
jury; 2) assume that all
conflicts in the evidence were
resolved by the jury in [the
Nelsons'] favor; 3) assume as
proofed all facts which [the
Nelsons'} evidence tends to
prove; 4) give [the Nelsons] the
benefit of all favorable
inferences which may reasonably
be drawn from the facts proved;
and 5) affirm the [grant] of the
court were to reverse the judgment
notwithstanding the verdict based on the
negligence issues, the court entered an
alternative ruling for a new trial on those
six claims.
Petitioners' Appendix
: Page 75
motion if reasonable persons
could [not] differ as to the
conclusions to be drawn from it.
Gilkerson v. Toastmaster, 770 F.2d 133, 136
(8th Cir. 1985).
In Dace v. ACF Industries, 722 F.2d
374, 376 (8th Cir. 1983), we stated the
"general proposition that only the evidence
favoring the nonmoving party .. . should
be considered." We should affirm the lower
court judgment notwithstanding the verdict
only if "all of the evidence po@nts one way
and is susceptible of no reasonable
inferences sustaining the position of [the
Nelsons]." Robertson Oil Co. v. Phillips
Petroleum Co., 871i F2d 1368, 1371 (8th Cir.
1989) (quoting Craft v. Metromedia, Inc.,
766 F.2d 1205, 1218 (8th Cir. 1985)
(citations omitted), cert. denied, 475 U.S.
1058 (1986)). The submissibility of the
various claims involves issues of state law
which we are charged to review de novo.
Petitioners' Appendix
Page 76
Salve Regina College v. Russell, 0.8.
’ S. Ct. , 59 U.S.L.W. 4219
(1991).
Applying these principles, we agree
with the district court on each of its
rulings and affirm the judgment
notwithstanding the verdict. ©
A. Breach of Contract
The Nelsons, in challenging the
judgment notwithstanding the verdict, argue
that the district court failed to consider
6 Contrary to the position taken by the
dissent, Neither this court nor the
district court has substituted a judgment
for that of the jury, nor have we eroded
the protection of the seventh amendment.
The Supreme Court has long held that the
question of whether there is sufficient
evidence to support submission of an issue
to the jury is a legal determination, and
that entry of judgment notwithstanding the
verdict under Fed. R. Civ. P. 50(b) does -
not contravene the seventh amendment.
Neely v. Martin K. Eby Constr. Co., 386
U.S. 317, 322, 330 (1966). See also, 9 C.
Wright & A. Miller, Federal Practice and
Procedure §§ 2522, 2524 (1971). We here
conclude that, as a matter of law, there
was an insufficiency of evidence, and
therefore seventh amendment concerns are
not implicated. The dissent's reference to
the discussion of academicians concerning
trends should not deter us from performing
our duty.
Petitioners' Appendix
Page 77
all the relevant evidence. The district
court order, however, exhaustively recounts
the testimony of Joe Nelson which might
suggest a contract between PCA and the
Nelsons. The district court correctly
concluded that this testimony "does not
support a conclusion that PCA agreed to
provide operating capital for the expansion
of the Nelsons’ ranch operation to full
productivity over a three-year period or to
restructure the Nelsons' debt situation to
permit proper funding of the Nelsons'
ranching operation." Slip op. at 10.
We could end our inquiry here. The
district court, however, further held that
even “[(s]jtretching the evidence to the
point of construing some kind of three year
agreement, would still leave the terms of
such an agreement too indefinite to permit
the enforcement of the contract." Id.
The Nelsons argue that the district
court erred by applying North Dakota,
rather than Nebraska, law in determining
Petitioners' Appendix
Page 78
the enforceability of an oral agreement.
They contend that the court erroneously
relied on a North Dakota case, ate
a v. W , 434 N.W.2d 712 (N.D. 1989),
which explains the specificity required
before Nebraska courts will enforce an oral
agreement. The Nelsons point to Davco
Realty Co. v. Picnic Foods nc., 198 Neb.
193, 252 N.W.2d 142 (1977), in conjunction
with Gilbert Central Corp. v. Overland
National Bank, 232 Neb. 778, 442 N.W.2d 372
(1989),” and argue that Nebraska has its
own common law requirements for creating
binding oral contracts, and that these
requirements are more lenient that [sic]
those in Woell. The Nelsons' position is
untenable.
7 Gilbert was decided during the
pendency of this appeal, and was not
available to the district court when it
issued its judgment notwithstanding the
verdict. We consider it here because this
court is bound by the most recent state
court rulings. j Vv so
Memorial Hosp., 701 F.2d 1266, 1268 (8th
Cir. 1983) (en banc).
Petitioners' Appendix
Page 79
Gilbert involved a claim of promissory
estoppel, and a loan contract in a letter
which included "the amount of the loan, the
purpose, the parties involved, and the
improvement to be financed." Gilbert, 442
N.W.2d at 377. Gilbert does not direct
courts to find an enforceable contract when
the alleged agreement is based on oral
discussions which do not fix a definite
amount or specific loan terms.
The Nelsons have not shown that the
holding in Gilbert is significantly
different from that in Woell. The district
court considered whether the terms of the
alleged contract were reasonably certain
and concluded they were not. "There was no
evidence of the total amount to be loaned,
or the amount to be loaned in any one year
- + «, OY how repayment was to be made, or
the interest rate to be charged, or when
repayments were to be commenced or ended or
the nature of the security." Nelson, slip
op. at 10. The Nelsons argue that under
Petitioners' Appendix
Page 80
ee LLC CO:tisN.CONCO(C(C;t:i(C(tit((#w4w4w4w#w#wiwdéd«d.. eee
Gilbert, oral contract to lend money need
not include the interest rate, repayment
terms or the nature of the security, but
need only include the loan amount, the
purpose of the loan, the parties and the
improvement to be financed.
The Nelsons' own argument fails,
however, because, as the district court
correctly held, the discussions between the
PCA and the Nelsons never reached any
specific agreement about how much money the
PCA would lend.
The Nelsons argue that a court should
imply a loan amount from the circumstances,
that the court should fix the loan amount
taking into consideration the prior lending
history, and whatever amount they needed to
implement the Ranch Plan and make their
ranch profitable. Neither the district
court, nor this court, however, can engage
in such speculation. Indeed, the Nelsons
themselves have been unable to predict how
much money the need to be profitable. Such
Petitioners' Appendix
Page 81
a finding would, in effect, require this
court to establish the terms of a loan to
be funded by one of the parties to the
appeal.
The Nelsons also suggest that the
Ranch Plan can provide a basis for the
total loan amount. The Nelsons argue that
the total amount can be inferred from the
fact that they told Mr. Wilnerd that to
implement the plan would require 1000
additional cattle in the first year. Yet,
cattle prices fluctuate. The number of
cattle is only one portion of the Nelsons'
ranch expenses, and provides no basis for
determining the ranch's total yearly
operating expenses. The district court
correctly found that PCA and the Nelsons
did not agree on a loan amount, and even
under Gilbert, this is fatal to the
formation of a contract.
B. Misrepresentation
Courts resolve the question of fraud
by examining the facts of each case
Petitioners’ Appendix
Page 82
individually. In the Nelsons' case, the
district court carefully evaluated all six
of the Nelsons' alleged instances of PCA
misrepresentation, and concluded that the
evidence, when viewed in the light most
favorable to the Nelsons did not justify
submitting the issues to the jury; and
therefore, judgment notwithstanding the
verdict was appropriate.
We have carefully reviewed the
district court's analysis of this issue.
Contrary to the Nelsons' argument, the
district court did not require evidence of
direct false statements in order to find a
submissible case on this claim. We adopt
the district court's analysis in full.
C. Negligence
The district court entered judgment
notwithstanding the verdict on the Nelsons’
negligence claim because it found that as a
matter of law PCA owed no duty to lend
noney or give advice to the Nelsons. The
Nelsons argue that the duty arises from the
Petitioners' Appendix
Page 83
status of the parties, from Nebraska common
law of lending, from contractual
obligations and was voluntarily assumed by
PCA.
The district court concluded that
while there was no Nebraska law on the
issue, the Nebraska Supreme Court would not
impose a duty on a lender to use reasonable
care in making a loan. Nelson, slip op. at
15. In making our de novo review of this
conclusion of the district court, and
having carefully considered the briefs and
arguments of counsel, we are satisfied that
"the district court's analytical
sophistication and research have exhausted
state-law inquiry." Salve Regina College,
59 U.S.L.W. 4219, ___—_—~=«.~«=«xixAccordingly, we
conclude that Nebraska state law would not
impose such a duty on PCA.
Second, we cannot conclude the
district court erred in finding that PCA
owed no contractual duty to the Nelsons.
We have affirmed the district court's
Petitioners’ Appendix
Page 84
decision that there was never any contract
between PCA and the Nelsons, except for the
yearly short term loans. Accordingly, PCA
owea no contractual duty to the Nelsons.
The Nelsons go to great lengths
attempting to establish that the duty PCA
owed the Nelsons stemmed from circumstances
surrounding the oral contract, and not from
the specific terms of the contract. The
duty, they argue, arises from PCA's status
as a cooperative, as an advisor, and from
the misleading promises which PCA made to
the Nelsons. The Nelsons argue that PCA
voluntarily assumed this duty, and breached
it, by tricking them into paying down their
short-term debt before refusing to lend any
more money. ®
8 We would point out that at no time did
PCA ever deny any of the Nelsons' loan
requests. In the 1985 loan negotiations,
PCA required the Nelsons to sign a
Memorandum of Understanding whereby the
Neisons agreed to find new short term
lenders if they did not earn a $29,000
profit for the coming year. The Nelsons
did not make an application for funds in
1986.
Petitioners' Appendix
Page 85
Evidence exists that PCA did attempt
~ to advise or counsel the Nelsons. In
August 1983, PCA wrote the Nelsons and
warned the Nelsons that they would not be
able to borrow money in the coming year
unless they came up with a plan to improve
their cash-flow position and reduce some of
their debt. Then, in September, PCA again
wrote the Nelsons questioning whether
"refinancing your present debt is a
solution to the problems that your
operation faces." PCA advised the Nelsons
to sell another piece of unrelated farm
property before borrowing money to pay off
the debt.
There is no evidence, however, that
the Nelsons [sic] breached any duty they
may have had to the Nelsons. No evidence
exists suggesting that the PCA participated
in developing the Ranch Plan or interfered
with the daily operations of the ranch. To
the extent that the PCA did attempt to
counsel the Nelsons, they were unwilling to
Petitioners' Appendix
. Page 86
EEE ee
follow that advice. We are persuaded that
the district court did not err when it held
that no reasonable jury could conclude that
PCA owed any special duty to the Nelsons or
breached any duty that might have existed.
We affirm the judgment of the district
court.
HEANEY, Senior Circuit Judge, dissenting.
In my view, there was more than
sufficient evidence from which the jury
could find that the PCA had agreed to
finance the Nelsons' three-year "ranch
plan" prepared by the University of
Nebraska Panhandle Station in return for
the Nelsons paying down their existing
operating loan with the PCA. The record
shows that the Nelsons kept their end of
the bargain. They went to the Travelers
Insurance Company and borrowed $350,000
from the company, giving as security a
mortgage on their farm. They then went to
the PCA and paid down their operating loan
by $240,000. The PCA accepted this
Petitioners' Appendix
Page 87
payment, knowing full well that acceptance
would be construed by the Nelsons as
acceptance of the three-year ranch plan.
After receiving the $240,000, however, the
PCA reneged on its agreement and refused to
fund the ranch plan. The Nelsons then lost
their farm, having used up all alternative
sources of credit by taking out the
Travelers loan.
The Nelsons' farming operation had
lost money for several years, and the PCA
had the right to insist that its operating
loan be paid down. The Nelsons, however,
had the right to condition a pay down on a
commitment by the PCA to fund them for
three additional years if they followed the
ranch plan developed by the University of
Nebraska.
The majority correctly notes that a
finding that an agreement had been reached
depended largely on the testimony of Joe
Nelson. The jury heard his testimony and
that of PCA officials. It accepted
Petitioners' Appendix
Page 88
OOOO
Nelson's version of the facts and found
that Nelson and the PCA had entered into a
contract. The jury had been carefully
instructed about the evidence necessary to
find a binding agreement. The instructions
are not challenged on appeal and read as
follows:
In order to be binding, an
agreement must be definite and
certain as to the terms and
requirements. It must identify
the subject matter and spell out
the essential commitments and
agreements with respect thereto.
Absolute certainty in the
terms of an agreement is not
required. Reasonable certainty
is necessary. A contract is
definite if the parties can tell
when it has been performed and it
is enough, if when that time
arrives, there is in existence
some standard by which
performance can be tested. In
the absence of a stated time for
performance, the law will imply a
time of performance within a
reasonable time under the
circumstances.
In determining whether a
contract existed, and if so, the
terms of that contract, you will
be deciding the mutual intent of
the parties. In making that
determination, you may consider
| Petitioners' Appendix
’ Page 89
the conduct of the parties, oral
statements, writings, and all
other evidence before you.
These instructions required the jury
to find that a definite and certain
contract had in fact been entered into
between the PCA and Nelson before it could
return a verdict in the Nelsons' favor.
The jury made this finding and there is
abundant evidence to support it.
The Nelsons went to the Federal Land
Bank for a loan. Nelson stated that he did
go to that bank, and it turned him down.
He then went to the Travelers Insurance
Company, and it agreed to loan him $350,000
with the farm as security. Travelers also
required a $17,500 letter of credit from
the PCA. Wayne Goff, the president of the
PCA, agreed to supply the letter. Nelson
then went back to the PCA. He discussed
the matter of Goff. Nelson testified that
the following conversation ensued:
He said that--I asked him if
$350,000 was going to be enough,
they wanted four hundred to five
hundred thousand, and I says is
Petitioners' Appendix
Page 90
that going to be enough to make
this plan work, and he says that
would be fine.
Appellant's Appendix at 54.
Shortly thereafter, Nelson filled out
an application with the PCA for a $453,000
loan. Joseph Nelson testified that Rod
Uhrig of the PCA told him and his wife that
the PCA would give Nelson an operating loan
if he developed a "plan" and paid down the
existing operating loan by $500,000.
Nelson further testified that he had the
plan developed and presented it to Goff and
Tom Willnerd, Nelson's loan officer. He
recounted that Goff said the plan was
probably a pretty good idea but that the
PCA could not do anything "until we get
money put in here." Goff suggested an
amount sufficient to nine 625 feeder
Calves. Nelson testified that Willnerd
knew that 1,000 calves were necessary to
make the plan work and said, "let's do the
625 for now, and I'll get you another four
hundred." Appellant's Appendix at 55. On
Petitioners' Appendix
Page 91
this basis, the Nelsons signed the loan
agreement. The money for the calves,
however, was never provided.
Certainly this testimony, coupled with
the objective facts, provided ample
support for the jury's finding that the PCA
agreed to provide operating capital for the
expansion of the Nelsons’ ranch operation
to fuel productivity over a three-year
period. Goff, the president of the PCA,
was fully aware of the transaction and
accepted the $240,000 pay down with full
knowledge of the fact that the Nelsons were
making the pay down to ensure continued
operation of the farm. If there was a
problem, Goff had an obligation to inform
the Nelsons of the difficulties and clarify
the situation before accepting the pay
down. Instead, he took the $240,000 and
reneged on the agreement. Of course, the
jury could have found in favor of the PCA,
Petitioners’ Appendix
Page 92
but it did not, and neither this court nor
the district court should substitute its
judgment for theirs. ?
The majority also adopts the district
court's view that if there was a three-year
agreement to provide operating capital to
the Nelsons, its terms were too indefinite
to permit enforcement of the contract. The
jury did not believe this to be the case
after hearing both sides of the question,
and neizher do I. The agreement was to
fund the "plan" prepared by the University
for a period of three years. Repayment was
to be made from operating profits with
interest at the rate the PCA customarily
charged to farm borrowers. The PCA was to
have as security all livestock and farm
machinery and other farm personalty just as
9 The majority's and lower court's
decisions are part of an unfortunate trend
that is eroding the protections of the
seventh amendment. Appellate reversals of
jury fact-finding, once relatively rate,
are now occurring more frequently. See
Schapper, Judges Against Juries--Appellate
Review of Civil Jury Verdicts, 1989 Wis. L.
Rev. 237.
Petitioners' Appendix
Dano a?
it had on other similar farm loans. Faced
with a similar agreement in National
mers Org. v. Kinsle , 731 F.2d 1464
(10th Cir. 1984), the court stated:
The rate of interest and the
terms of repayment could be
determined by reference to
commercial practice and the
customary course of business
between the bank and Burkhart.
The market rate of interest and
the purpose of the loan would be
reasonable guidelines for setting
the rate of interest and terms of
repayment.
Id. at 1470. We should apply the same
standard here.
I turn next to the question of
damages. The PCA argued that because the
Nelsons' farming operation had not been
profitable in the past, it would not be
profitable in the future. This same
argument was advanced before the jury and
rejected. We should do the same. An
expert witness testified that if the plan
were fully implemented, the farm would be
profitable. In addition, the jury had
before it detailed financial data from the
Petitioners’ Appendix
Page 94
PCA and the Nelsons. This data provided
ample support for the jury's verdict. We
should not substitute our judgment for that
of the jury.
This was a close case. Obviously, the
district court believed that the Nelsons
had not proven their case. Had it been the
fact finder, we certainly could not say
that a finding of no contract would have
been clearly erroneous, but the district
court was not the finder of fact.
Finally, I would set aside the trial
court's order for a new trial. This order
was based on the same reasoning that it
used in granting the judgment
notwithstanding jury verdict, reasoning
which I reject. I would reverse the
judgment of the district court granting the
PCA's motion for judgment notwithstanding
verdict and, in the alternative, a new
trial, and would direct that the jury
verdict be reinstated. I do not believe
Petitioners’ Appendix
Page 95
that it was appropriate for the court to
substitute its judgment for that of the
jury in this case.
A true copy.
Attest:
Cierxn, U.S. Court of
Appeals, Eighth Circuit.
Petitioners’ Appendix
Page 96
Oe aaeeaeaeyeyeEeEeEeEOererereeee eee
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF NEBRASKA
JOE NELSON
and MARGARET NELSON, USCA No. 89-2554NE
Plaintiffs District Ct. No.
/Appellants, CV88-L~238
Vv.
PRODUCTION CREDIT ASSOCIATION
OF THE MIDLANDS,
Defendant
/Appellee.
PETITION FOR REHEARING AND SUGGESTION FOR
REHEARING, EN BANC
AND
PETITIONERS’ APPENDIX
Prepared and Submitted by:
David H. Hahn, #16573
Of HAHN LAW OFFICE
Attorney for Plaintiffs/Appellants
245 South 84th Street, Suite 212
Lincoln, Nebraska 68510
(402) 483-6266
Petiticners' Appendix
Page 97
SEERA AEE AERA EEARAEREREEEAEREREREEEEAEEEAEARAEEEEEEEREEESE
D. Even if this court denies the petition
for rehearing and upholds the decision
to affirm the trial court, the
litigation should not end. This court
should remand this case to the
District Court for determination of
whether a new trial would be
reasonable, in light of the
plaintiffs' ability to fill in the
gaps of the evidence noted by the
courts, all in conformity with the
seventh amendment.
As part of Nelsons' petition for
rehearing and suggestion for rehearing, en
banc, the Nelsons specifically assert that
they should be entitled to a determination
by this court, or the trial court, whether
a new trial should be granted. The Nelsons
assert, that at retrial of this matter,
they would be able to submit sufficient
Petitioners' Appendix
Page 98
evidence to overcome any concerns expressed
by the District Court and this court in its
ruling on the applicable state law.
While this approach may, at first
reading, appear somewhat irregular, it is
firmly grounded in Seventh Amendment
jurisprudence. This court has not
specifically ruled on the issue of a
verdict-winner/appellant asserting a
request for new trial at a petition for
rehearing and should address this important
procedural issue, en banc.
In Neeley v. Eby Construction Co., 386
US 316 (1967), the Supreme Court stated
that it had the power to grant or deny
motions for new trials in appropriate
cases. Neeley at 323. The Supreme Court
stated that ". . . where the court of
appeals sets aside the jury's verdict
because the evidence was insufficient to
send the case to the jury, it is not so
clear that the litigation should be
terminated." Neeley at 327. The court
Petitioners' Appendix
Page 99
reasoned that an insufficiency in evidence
may be caused by the perceived legal
difficulties in the plaintiff's case, which
were decided as a matter of law, and not as
a matter of fact on the judgment
notwithstanding the verdict or a directed
verdict. See, Neeley at 327, 328. The
Neeley court specifically stated that "he
[plaintiff] may in suitable situations seek
rehearing from the court of appeals after
his judgment has been reversed." Neeley at
329. In this case, the Nelsons desire an
opportunity to add additional evidence or
to "fill in the gaps" perceived by the
trial court after the Nelsons had obtained
a verdict and after this court reviewed the
Nelsons' attack on the trial court's
decision. It is not too late in the
proceedings for the Nelsons to take this
position. Any earlier attempt by the
Nelsons to attack the verdict would have
placed the Nelsons in the unfortunate and
inappropriate position of attacking the
Petitioners’ Appendix
Page 100
verdict which they fought so hard to
obtain. The trial was the "main event" and
the verdict was the result that the Nelsons
attempt to preserve the verdict through
appeal to this court. However, now that
the issue has been decided by the panel,
and if the panel's decision is not
overturned, the Nelsons suggest that this
court should either (1) grant a new trial
or (2) remand this case to the District
Court for determination of whether the
Nelsons can make a sufficient showing that
and another trial evidence to justify
submission of the cause to the jury would
be offered by the Neisons. See, e.g.,
United States v. Lymon, 125 F2d 67 (1st Cir
1942); Homeowners Loan Corp. v. Huffman,
134 F2d 314, 317 (8th Cir 1943). See also,
Kohn v. West Virginia Paper Co., 330 US 212
(1947); O'Hare v. Merck & Co., 381 F2da 286
(8th Cir 1967).
Petitioners' Appendix
Page 101
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF NEBRASKA
JOE NELSON
and MARGARET NELSON, USCA No. 89-2554NE
Plaintiffs District Ct. No.
/Appellants, CV88-L-238
Vv.
PRODUCTION CREDIT ASSOCIATION
OF THE MIDLANDS,
Defendant
/Appellee.
AFFIDAVIT OF DAVID H. HAHN
STATE OF NEBRASKA )
) ss.
COUNTY OF LANCASTER )
I, David H. Hahn, upon my oath do
state:
bs I am a resident of the State of
Nebraska, more than 21 years of age, and
have personal knowledge of the facts set
forth in this affidavit.
Petitioners' Appendix
Page 102
2. I am an attorney, licensed to
practice law in the State of Nebraska
before all state courts in the State cf
Nebraska, the Nebraska Supreme Court, all
federal courts in the State of Nebraska,
the Eighth Circuit Court of Appeals, and
the Nebraska Bankruptcy Court.
3 I have represented Joseph and
Margaret Nelson since 1985. I have
represented them in the above-referenced
case.
4. I was lead trial counsel in this
trial in North Platte, Nebraska.
S. I was lead trial counsel for the
preparation of discovery and preparation of
this case for trial.
6. Upon my firm conviction as a
lawyer and a trial lawyer, I believe that
the Nelsons could, if a new trial in this
matter were granted, present sufficient
facts to allow the Nelsons' claims to go to
the jury.
Petitioners' Appendix
Page 103
7. I have studied the District
Court's opinion granting the motion for
judgment notwithstanding the verdict and
the panel's decision in this case. I am
aware of the deficiencies of the evidence
noted by both Judge Urbom and the panel's
decision.
8. These evidentiary deficiencies
could be overcome at a new trial.
9. In addition to the evidence which
was presented at the initial trial, I
believe that additional evidence, both
documentary and witness evidence, could be
proffered to show at least the following
facts:
A. A specific course of conduct of
the relationship between the
Nelsons and the PCA regarding
interest rate, term of loan,
repayment terms, and the manner
in which the amount of the loan
was calculated.
Petitioners' Appendix
Page 104
The general business practice of
the PCA, which contemplated roll
over of existing debts.
Testimony from ex-PCA employees
(other than those who testified
at trial) that the PCA provides
financial counseling in addition
to its function as a lender.
This is part of its job and part
of what it actually does for each
member-borrower.
That the Nelsons specifically
relied upon the advice of the PCA
in obtaining mortgage money from
Travelers Insurance and paying
down the PCA.
That it became a standard
business practice in the PCA in
1985 and 1986 to obtain as much
collateral and pay down as
possible from borrowers who the
PCA had determined it would
collect and close out.
Petitioners' Appendix
Page 105
10. In addition to my duty as trial
counsel in this case, I have also
represented Joseph and Margaret Nelson in
their colliery Chapter 12 proceeding.
11. During the course of my work on
the Chapter 12 case, the Nelsons have
obtained confirmation of a plan of
reorganization. The plan of reorganization
was confirmed on December 19, 1990. The
plan contemplates the full payment of the
judgment obtained by the Production Credit
Association of the Midlands in the amount
of $430,000.00. Over $200,000.00 of the
$430,000.00 claim has already been paid to
the PCA, in cash. The balance is set for
payment over term, with PCA remaining fully
secured on real estate and equipment. PCA
has accepted the terms of the plan as full
and final payment on its claim and have
consented that the Nelsons' recovery in
this action will be available to the
Petitioners’ Appendix
Page 106
debtors, in their discretion, in their
farming and ranching operation, or to pay
other creditors.
12. I have consulted with Joseph and
Margaret Nelson and they are prepared to go
forward with this case on a new trial and
on a showing, if necessary, to the District
Court on an evidentiary hearing that they
will be able to proffer sufficient
testimony to present issues to a jury, if a
second trial were held.
Further Affiant Sayeth Not.
David H. Hahn, Affiant
SUBSCRIBED and sworn to before me this
day of , 1991.
Notary Public
gnaf0891
Petitioners' Appendix
Dana NT
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 89-2554NE
JOE NELSON Order Denying
and MARGARET NELSON, Petition For
Rehearing and
Appellants, Suggestion
Rehearing En
Banc
Vv.
PRODUCTION CREDIT
ASSOCIATION OF THE
MIDLANDS,
Appellee.
Appellant's suggestion for rehearing
en banc has been considered by the court
and is denied by reason of the lack of a
majority of the active judges voting to
rehear the case en banc. Judge Beam took
no part in the consideration or decision of
the petition.
Petition for rehearing by the panel is
also denied.
May 17, 1991
Petitioners' Appendix
Page 108
Order Entered at the Direction of the
Court:
Michael E. Gans /s/
Clerk, U.S. Court of Appeals, Eighth
Circuit.
Petitioners‘ Appendix
Page 109
Hahn Law Office
245 SOUTH &th STREET
SUITE 212
CHERRY HILL PROFESSIONAL BUILDING
LINCOLN, NEBRASKA 68510
Telephone (402) 483-6266
Telecopier (402) 483-5453
ABA\NET: 18149
April 29, 1991
VIA FEDERAL EXPRESS
Airbill No. 5896431542
Mr. Michael Gans
Acting Clerk of Court
Eighth Circuit Court of Appeal
U.S. Court and Custom House
1114 Market Street
St. Louis, Missouri 63101
Re: 89-2554NE :
Joe Nelson, et al. v. PCA of Midlands
Our File No. 86-023-08
Dear Mr. Gans:
Pursuant to FRAP 28(j) the appellants,
Joe and Margaret Nelson, submit the
following supplemental authority to be
considered in conjunction with the
appellants’ petition for rehearing, which
was filed on April 23, 1991.
Petitioners' Appendix
Page 110
Appellant cites Hecker v. Ravenna
Bank, 237 Neb 810 (___-=—s—~ NW2d _____) (April
12, 1991) for further support of its
contract claim argued at page 4 of its
petition for rehearing. The appellant
cites Hecker to the Court, because it
states that Nebraska law does not require
the type of specificity in oral contracts
to loan money as found by the District
Court (District Court decision, p 2;
appendix to petition for rehearing, pp 32-
33); and affirmed by the panel in its
decision (panel decision, pp 9-11; appendix
to appellants' petition for rehearing, pp
62-64). Appellants urge a reading of the
Hecker case in support of their argument
that there was a valid and enforceable
contract to loan money under Nebraska law,
and the court does not need to rely on case
law from other jurisdictions, such as North
Dakota.
Petitioners' Appendix
Page 111
Because this case has not been cited
in the Northwest Reporter, I enclose a copy
from the Nebraska Advance Sheets. I
enclose the original and eighteen (18)
copies of this letter, together with a
photocopy of the Hecker case, for
distribution together with the recently
filed petition for rehearing.
I thank you in advance for your
attention to this matter.
Very truly yours,
David H. Hahn
Attorney at Law
DHH/ak}j
pc: Howard Olsen
Steve Olsen
Client
Petitioners’ Appendix
Page 112
810
Nebraska Advance Sheets
237 NEBRASKA REPORTS
PAUL A. HECKER, APPELLANT, V. THE RAVENNA BANK, A BANKING
10.
CORPORATION, ET AL., APPELLEES.
ARNOLDC. HECKER, APPELLANT. V. THE RAVENNA BANK. A
BANKING CORPORATION, ET AL., APPELLEES.
a) . .
Filed April 12,1991. Nos. 88-866, 88-867.
Demurrer: Pleadings. When ruling on a demurrer, a court must assume that the
pleaded facts, as distinguished from legal conclusions, are true as alleged and
must give the pleading the benefit of any reasonable inference from the facts
alleged, but cannot assume the existence of a fact not alleged, make factual
findings to aid the pleading, or consider evidence which might be adduced at
trial.
Contracts: Consideration. Sufficient and valid consideration is essential to an
enforceable express contract.
Actions: Breach of Contract: Consideration. For a cause of action based on a
breach of express contract, there must be an unconditional and absolute
acceptance of a definite offer constituting an agreement supported by sufficient
and valid consideration.
Corporations: Liability: Debtors and Creditors. Generally, a corporation's
directors or officers are not liable to the corporation's creditors or third persons
for corporate acts or debts, simply by reason of an official relation with the
corporation.
Corporations: Contracts: Liability. As a general rule, concerning liability on a
corporate contract, a corporation's directors or officers are in the same position
as agents of private individuals and are not personally liable on a corporation's
contract unless the corporate directors or officers purport to bind themselves, or
have otherwise bound themselves, to performance of the contract.
Banks and Banking: Negotiable instruments: Words and Phrases. A cashier's
check is a dill of exchange drawn by 2 bank on itself; hence, issuance of a
cashier's check constitutes acceptance by the issuing bank.
Negotiable Instruments: Conversion. A negotiable instrument can be the subject
of conversion.
Property: Conversion: Words and Phrases. Conversion is the unauthorized and
wrongful dominion over personal property owned by another, which is exerted
as a denial of or inconsistent with the owner's rights in the property or is asserted
in derogation, exclusion, or defiance of another's ownership or title in personal
property.
Uniform Commercial Code: Negotiable instruments: Conversion. Neb. U.C.C.
§ 3-419 (Reissue 1980) supplies examples of ways in which a negotiable
instrument may be converted, and does not list the elements which constitute
tortious conversion of a negotiable instrument.
: . Neb. U.C.C. § 3-419 (Reissue 1980) does not displace
the sommentow action for conversion of a negotiable instrument, but coexists
with Nebraska's common law.
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Nebraska Advance Sheets
HECKER v. RAVENNA BANK Bil
Cite as 237 Neb. 810
11. Corporations: Liability: Conversion. A corporation's officer or agent 1s
personally liable if the officer or agent causes a conversion of another's property,
and it is no defense that such officer or agent converted the property while acting
forthe corporation.
12. Uniform Commercial Code: Banks and Banking: Negotiable Instruments:
Liability. Neb. U.C.C. § 4-402 (Reissue 1980) provides that a payor bank 15
liable to its customer for damages proximately caused by the wrongtu! dishonor
of anitem.
13. Uniform Commercial Code: Negotiable Instruments: Words and Phrases.
Generally, payees of a cashier's check are not “customers” under Neb. U.C.C
§ 4-104(1 Ke) (Reissue 1980).
14. Banks and Banking: Negotiable Instruments: Words and Phrases. Wrongful
refusal to honor a cashier's check occurs when a payee of a cashier's check
delivers or negotiates the check for payment, and the issuing bank refuses to
honor the check.
15. Actions: Parties: Joinder. Causes of action involving different defendants
cannot be joined unless each cause affects them all and they have a joint or
common liability or interest.
16. Actions: Parties: Joinder: Contracts. Joint obligees must sue jointly in actions
ex contractu.
17. Motions to Strike: Pleadings. A motion to strike a petition, pursuant to Neb.
Rev. Stat. § 25-913 (Reissue 1989), is not a substitute for a demurrer under Neb.
Rev. Stat. § 25-806 (Reissue 1989) or for a motion to strike or make more
definite and certain as authorized by Neb. Rev. Stat. § 25-833 (Reissue 1989).
18. : . A motion to strike a petition, pursuant to Neb. Rev. Stat.
§ 25-91 3 (Reissue 1989), may be directed only to a pztition filed in violation of a
court's order or a rule o! practice or procedure prescribed either by statute or by
the court in which the petition is filed.
Appeals from the District Court for Buffalo County:
Dewayne Wo r, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
John S. Mingus, of Mingus & Mingus, for appellants.
Wesley C. Mues, of Knapp, Mues, Beavers & Luther, for
appellees.
HasTINnGs, C.J., WHITE, CAPORALE, SHANAHAN, GRANT, and
FAHRNBRUCH, JJ., and CoLwe LL, D.J., Retired.
SHANAHAN, J.
In March 1986, Paul A. Hecker and Arnold C. Hecker
commenced actions against The Ravenna Bank; Dale E.
Pohimann, the bank’s president; and James H. Oliver,
chairman of the bank's board of directors. The actions related,
Petitioners' Apnencix
Page 114
Nebraska Advance Sheets
812 237 NEBRASKA REPORTS
first, to an oral agreement between Heckers and Ravenna Bank
for credit and financing and, second, to a cashier’s check
payable to “Paul Hecker and Arnold Hecker and John
Mingus.” After a series of amended petitions, Heckers, in
March 1988, each filed a “Fifth Amended Petition.” When the
district court for Buffalo County sustained demurrers to the
amended petitions, Heckers elected to stand on their pleadings.
The court dismissed Heckers’ actions; hence, these appeals. We
affirm in part, and in part reverse.
STANDARD OF REVIEW
“ *In reviewing an order sustaining a demurrer, the Supreme
Court accepts the truth of facts well pled and the factual and
legal inferences which may be reasonably deduced from such
facts, but does not accept conclusions of the pleader’ ” Security
Inv. Co. v. State, 231 Neb. 536, 538, 437 N.W.2d 439, 442
(1989).
When ruling on a demurrer, a court must assume that
the pleaded facts, as distinguished from legal conclusions,
are true as alleged and must give the pleading the benefit
of any reasonable inference from the facts alleged, but
cannot assume the existence of a fact not alleged, make
factual findings to aid the pleading, or consider evidence
which might be adduced at trial.
Schuyler State Bank v. Cech, 228 Neb. 588, 593, 423 N.W.2d
464, 468 (1988). Accord Parrett v. Platte Valley State Bank, 236
Neb. 139, 459 N. W.2d 371 (1990).
THE HECKERS’ LAST AMENDED PETITIONS
Factual Background.
According to Heckers, all activities and conduct in question
occurred in response to Ravenna Bank’s “policies concerning
loans and business dealings” with Heckers. At all times in any
transaction related to Heckers’ lawsuits, Pohlmann and Oliver
were acting in their official bank capacities and at the “Ravenna
Bank’s behest.” Such “behesting” was alleged in each of the
four “causes of action” contained in Heckers’ fifth, and last,
amended petitions, “causes of action” which will be designated
and discussed after our review of facts which, under the
particular standard of review, “are true as alleged [with] the
Petitioners' Appendix
Page 115
Nebraska Advance Sheets
HECKER v. RAVENNA BANK R13
Cite as 237 Neb. 810
benefit of any reasonable inference from the facts alleged... .”
Schuyler State Bank v. Cech, supra at 593, 423 N.W.2d at 468.
Heckers own a farm and livestock operation. In 1975,
Ravenna Bank orally agreed to loan money or extend credit to
Heckers for their operating expenses and advise them regarding
financial matters pertinent to their business. Heckers agreed
that Ravenna Bank would be their “sole lending institution”
and that they would abide by the bank’s determinations and
business directives based on semiannual reviews of the Hecker
operations.
During a semiannual review meeting in January 1982 and as
a condition for further bank credit, Ravenna Bank required
that Heckers’ mother guarantee part of Heckers’ debt to the
bank. After Heckers supplied the guaranty, Ravenna Bank
promised to “pay for” agricultural expenses subsequently
incurred by Heckers, including their fertilizer, chemical, and
fuel bills, but then reneged on that promise. On March 18,
1983, Ravenna Bank
wrongfully convert[ed] a cashier’s check # 25783 in the
sum of $ 93,442.66, the maker thereof being the Ravenna
Bank, Remitter, Mike Dobish, payees being Paul Hecker,
Arnold Hecker and John Mingus, by stopping payment of
said cashier’s check and applying it to the outstanding loan
of Arnold C. Hecker and Paul A. Hecker in lieu of
honoring the payment of the same to the aforesaid
designated payees thereon....
Without Heckers’ consent, proceeds from the cashier’s check
were applied on Heckers’ debt to Ravenna Bank.
Causes of Action.
Heckers alleged four “causes of action.” The first cause of
action was based on a breach of the oral contract for an
extension of credit or a bank loan to Heckers, the second was
“wrongful conversion” of the cashier’s check, the third was
“wrongful dishonor” of the cashier’s check under Neb. U.C.C.
§ 4-402 (Reissue 1980), and the fourth was “wrongful refusal”
to honor the cashier’s check. Heckers claimed several items of
damage, but did not seek judgments for recovery of the
proceeds from the cashier’s check.
Petitioners' Appendix
Page 116
Nebraska Advance Sheets
814 237 NEBRASKA REPORTS
Appellees’ Pleadings.
In response to demurrers directed to each “Fourth Amended
Petition” of the Heckers, the court, on February 26, 1988,
granted Heckers 20 days to file additional amended petitions.
Within the 20 days, each of the Heckers filed a “Fifth Amended
Petition.” Pursuant to Neb. Rev. Stat. § 25-913 (Reissue 1989)
(pleadings stricken), the appellees requested that the Heckers’
fifth amended petitions, in their entirety, be stricken because
those petitions were “filed in direct violation of this Court’s
order of February 26, 1988... .” Also, the appellees demurred
to Heckers’ amended petitions and claimed, among other
things, that Heckers improperly joined several causes of action
and that their petitions failed to state facts sufficient to
constitute a cause of action. See Neb. Rev. Stat. § 25-806(5)
(Reissue 1989) (causes of action improperly joined) and
§ 25-806(6) (factual failure to state a cause of action).
Judgments.
The district court sustained the demurrers and motions to
strike Heckers’ fifth amended petitions in their entirety, but
granted Heckers leave to amend their petitions. When Heckers
declined to replead and stood on the allegations in their fifth
amended petitions, the court dismissed Heckers’ actions.
ASSIGNMENTS OF ERROR
Most of Heckers’ assignments of error are repetitive or not
discussed in their briefs. See, Neb. Ct. R. of Prac. 9D(1)d and g
(rev. 1989); Federal Land Bank of Omaha v. Victor, 232 Neb.
351, 440 N.W.2d 667 (1989) (for appellate consideration,
appellant must assign and argue errors claimed for reversal).
Nevertheless, Heckers contend that the district court erred (1)
in sustaining the demurrers and (2) in striking their entire
amended petitions.
DISMISSAL OF THE AMENDED PETITIONS
The first question is whether Heckers stated facts sufficient
to constitute a cause of action.
Breach of Oral Agreement to Extend Credit.
“*To establish an express contract, there must be
shown what amounts to a definite proposal and an
Petitioners' Appendix
Page 117
Nebraska Advance Sheets
HECKER v. RAVENNA BANK BIS
Cite as 237 Neb. 810
unconditiona! and absoluie acceptance thereof. . ..
“ “Further, in order that a binding contract may result
from an offer and acceptance, it is essential that the minds
of the parties meet at every point, and that nothing be left
open for a future arrangement.’ ”
Professional Recruiters v. Oliver, 235 Neb. 508, 513, 456
N.W.2d 103, 107 (1990) (quoting from Zimmerman y.
Martindale, 221 Neb. 344, 377 N.W.2d 94 (1985)).
Moreover, sufficient and valid consideration is essential to an
enforceable express contract. Blanchard v. White, 217 Neb.
877, 351 N.W.2d 707 (1984). See, also, 17A Am. Jur. 2d
Contracts § 117 (1991). In Buckingham v. Wray, 219 Neb. 807,
809, 366 N. W.2d 753, 756 (1985), we stated:
|C]jonsideration is sufficient to support a contract if there
is any detriment to the promisee or benefit to the
promisor. Generally, a court will not inquire into the
adequacy of consideration for a contract, inasmuch as
consideration based on value of property or performance
of a promise is a matter of personal judgment by parties to
a contract. Ordinarily, a contract will not be held invalid
for inadequacy of consideration alone, unless inadequacy
is SO great as to furnish of itself evidence of fraud.
Thus, for a cause of action based on a breach of express
contract, there must be an unconditional and absolute
acceptance of a definite offer constituting an agreement
supported by sufficient and valid consideration. Cf. Garsick v.
Dehner, 145 Neb. 73, 79, 15 N.W.2d 235, 238 (1944):
Speaking generally, mutuality of obligation is an
essential element of every enforceable agreement.
However, “Mutuality of contract consists in the obligation
of each party to do, or to permit something to be done, in
consideration for the act or promise of the other. . . .
Mutuality is absent when one only of the contracting
parties is bound to perform, and the rights of the parties
exist at the option of one only.”
Accord De Los Santos v. Great Western Sugar Co., 217 Neb.
282, 348 N.W.2d 842 (1984).
Heckers alleged that Ravenna Bank offered to extend credit
or make a loan to Heckers and provide them with financial
Petitioners' Appendix
Page 118
Nebraska Advance Sheets
816 237 NEBRASKA REPORTS
advice in exchange for Heckers’ use of the bank as their sole
source of credit. Heckers further alleged their compliance with
all bank instructions and requests, such as the maternal
guaranty, thereby satisfying a condition precedent to Ravenna
Bank’s obligation to extend credit or loan money to the
Heckers. See Frenzen v. Taylor, 232 Neb. 41, 48, 439 N.W.2d
473, 478 (1989): “When a contractual duty is subject to the
occurrence of a specific contingency or event as a condition, the
condition must occur before a party is obligated to perform the
contractual duty unless nonoccurrence is excused.” See, also,
Neb. Rev. Stat. § 25-836 (Reissue 1989) (pleading performance
of conditions precedent). Heckers then alleged that Ravenna
Bank refused to keep its promise to “pay for” Heckers’ 1982
business expenses. Therefore, Heckers alleged facts sufficient
to state a breach of contract cause of action against Ravenna
Bank. Consequently, the district court’s judgments, sustaining
demurrers for failure to state a breach of contract cause of
action against Ravenna Bank, are incorrect.
Generally, a corporation's directors or officers are not liable
to the corporation’s creditors or third persons for corporate acts
or debts, simply by reason of an official relation with the
corporation. See, Hilzendager v. Skywarok, 335 N.W.2d 768
(N.D. 1983); A. B. Corporation v. Futrovsky, 259 Md. 65, 267
A.2d 130 (1970); Stratton v. West States Construction, 21 Utah
2d 60, 440 P.2d 117 (1968); Kiel v. Frank Shoe Mfg. Co., 245
Wis. 292, 14N.W.2d 164 (1944).
As a general rule, concerning liability on a corporate
contract, a corporation's directors or officers are in the same
position as agents of private individuals and are not personally
liable on a corporation's contract unless the corporate directors
or officers purport to bind themselves, or have otherwise
bound themselves, to performance of the contract. See, Wyatt
v. Union Mortg. Co. , 24 Cal. 3d 773, 598 P.2d 45, 157 Cal. Rptr.
392 (1979); Staffco, Inc. v. Maricopa Trading Co., 122 Ariz.
353, 595 P.2d 31 (1979); A. B. Corporation v. Futrovsky, supra;
Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407
(1968). See, also, 18B Am. Jur. 2d Corporations § 1829 (1985).
In Edwin Bender & Sons v. Ericson Livestock Comm. Co. , 228
Neb. 157, 164, 421 N.W.2d 766, 771 (1988), we said:
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HECKER v. RAVENNA BANK R17
Cite as 237 Neb 810
“ * “(Where an obligation is that of a principal, a court cannot
enforce the obligation against the agent as long as he is merely
acting as agent.”. . .’ ” See. also. Savorelli v. Stone, 168 Neb.
419, 428, 96 N.W.2d 222, 227 (1959): “ ‘Where one acting as
the agent of acorporation makes a contract on its behalf, which
is binding upon it, his acts in that behalf create no individual or
personal liability against him.’ " (Quoting from Fremont
Carriage Mfg. Co. v. Thomsen, 65 Neb. 370, 91 N.W. 376
(1902).)
Heckers failed to allege facts, either as an express statement
or as a basis for the inference, that Pohlmann and Oliver
personally and in their individual capacities bound themselves
to the credit or loan agreement involving Ravenna Bank.
Consequently, Heckers failed to state a cause against Pohlmann
and Oliver for breach of the credit or loan agreement in
question. The district court correctly sustained the
Pohlmann-Oliver demurrers to the breach of contract cause of
action.
Conversion of the Cashier’s Check.
A cashier’s check is a bill of exchange drawn by a bank on
itself; hence, issuance of a cashier’s check constitutes
acceptance by the issuing bank. See, Thompson Poultry, Inc. v.
First Nat. Bank of York, 199 Neb. 8, 255 N.W.2d 856 (1977);
John Deere Co. v. Boelus State Bank, 233 Neb. 818, 448
N.W.2d 163 (1989); 6 J. Reitman, H. Weisblatt, W. Schlichting,
T. Rice & J. Cooper, Banking Law §§ 123.04 and 120.02 (1991)
a 6 Banking Law); 10 Am. Jur. 2d Banks § 544
(1963).
A cashier’s check is a “negotiable instrument” in accord with
Neb. U.C.C. § 3-104 (Reissue 1980). “A negotiable instrument
can be the subject of conversion.” Bryant Heating v. United
States Nat. Bank, 216 Neb. 107, 113, 342 N.W.2d 191, 195
(1983). Accord State v. Omaha Nat. Bank, 59 Neb. 483, 81
N.W. 319 (1899). See, also, Neb. U.C.C. § 3-419 (Reissue
1980), which provides that
{aJn instrument is converted when
(a) a drawee to whom it is delivered for acceptance
refuses to return it on demand; or
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818 237 NEBRASKA REPORTS
(b) any person to whom it is delivered for payment
refuses on demand either to pay or to return it; or
(c) it is paid on a forged indorsement.
In Nebraska’s common law, conversion “is the unauthorized
and wrongful dominion over personal property owned by
another, which is exerted as a denial of or inconsistent with the
owner’s rights in the property or is asserted in derogation,
exclusion, or defiance of another’s ownership or title in
personal property.” Mason v. Schumacher, 231 Neb. 929, 944,
439 N.W.2d 61, 71 (1989).
Section 3-419 supplies examples of ways in which a
negotiable instrument may be converted, and does not list the
elements which constitute tortious conversion of a negotiable
instrument. Fuscellaro v. Industrial Nat’l Corp., 117 R.1. 558,
368 A.2d 1227 (1977); Yeager & Sullivan, Inc. v. Farmers Bank,
162 Ind. App. 15, 317 N.E.2d 792, 797 (1974). See Neb. U.C.C.
§ 3-102 (Reissue 1980) (“instrument” means “negotiable
instrument”).
Neb. U.C.C. § 1-103 (Reissue 1980) states: “Unless
displaced by the particular provisions of this act, the principles
of law and equity . . . shall supplement its provisions.”
Therefore, § 3-419 does not displace the common-law action
for conversion of a negotiable instrument, but coexists with
Nebraska’s common law. See PWA Farms v. North Platte State
Bank, 220 Neb. 516, 371 N.W.2d 102 (1985). See, also, Bryant
Heating v. United States Nat. Bank, supra (common-law
principles simultaneously applied with § 3-419). Cf. Brown v.
United States Nat. Bank, 220 Neb. 684, 371 N.W.2d 692 (1985)
(material elements of common-law fraud must be established
before any relief is available for “fraud” contemplated by Neb.
U.C.C. § 5-114(2) (Reissue 1980), which does not specifically
identify the elements of fraud).
The payee of a cashier’s check is the rightful “owner” of the
check, which is “property” that may be the subject of tortious
conversion. See § 3-419, comment 2:
A negotiable instrument is the property of the holder. It is
a mercantile specialty which embodies rights against other
parties, and a thing of value. This section adopts the
generally recognized rule that a refusal to return it on
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HECKER v. RAVENNA BANK 819
Cite as 237 Neb. 810
demand is a conversion. The provision is not limited to
drafts presented for acceptance, but extends to any
instrument presented for payment, including a note
presented to the maker. The action is not on the
instrument, but in tort for its conversion.
See, also, | J. White & R. Summers, Uniform Commercial
Code § 15-4 (3d ed. 1988).
Heckers alleged that Ravenna Bank refused Heckers’
demand to pay the cashier’s check on which Heckers were
designated as payees, a refusal which resulted in Heckers’
damages. Moreover, without Heckers’ consent, Ravenna Bank
applied the proceeds of the cashier’s check on Heckers’
indebtedness to the bank. An issuing bank's refusal on demand
Lo pay a cashicr’s check is not only a distinct act of dominion
wrongfully asserted over the payee’s property in denial of or
inconsistent with property rights of the payee, but is also
specifically listed as a conversion defined in § 3-419(1)(b).
Heckers alleged facts sufficient to constitute a cause of action
for Ravenna Bank's conversion of the cashier’s check. For that
reason, the court improperly sustained Ravenna Bank’s
demurrers based on a failure to state a cause of action for
conversion.
A corporation’s officer or agent is personally liable if the
officer or agent causes a conversion of another’s property, and
it is no defense that such officer or agent converted the property
while acting for the corporation. See, Lyon v. Bennington
College Corp., 137 Vt. 135, 400 A.2d 1010 (1979); Bush v.
Hayes, 286 Mich. 546, 282 N.W. 239 (1938); Clark v. Groger,
102 Wash. 188, 172 P. 1164 (1918). See, also, 18 Am. Jur. 2d
Conversion § 73 (1985). Cf., Morfeld v. Bernstrauch, 216 Neb.
234, 239, 343 N.W.2d 880, 883 (1984) (“[ajn agent is personally
liable to third persons for his own misfeasances and positive
wrongs”); Standard Grain Co. v. State Bank, 106 Neb. 73, 182
N.W. 507 (1921).
Heckers alleged that Pohimann and Oliver, although acting
for Ravenna Bank, nonetheless refused to pay the cashier’s
check after Heckers had delivered the check to Ravenna Bank
for payment and that Pohimann and Oliver, after “stopping
payment” on the check, applied the check proceeds on Heckers’
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unpaid loan from the bank. Thus, Heckers alleged sufficient
facts to constitute a cause of action against Pohlmann and
Oliver for conversion of the cashier's check. Consequently, the
court improperly sustained the Pohlmann-Oliver demurrers
based on a failure to state a cause of action for conversion.
Wrongful Dishonor of the Cashier’s Check.
Heckers’ cause of action for “wrongful dishonor” is based
on § 4-402, which provides that a “payor bank is liable to its
customer for damages proximately caused by the wrongful
dishonor of an item.” A customer is statutorily defined as “any
person having an account with a bank or for whom a bank has
agreed to collect items and includes a bank carrying an account
with another bank.” Neb. U.C.C. § 4-104(1)(e) (Reissue 1980).
A cashier’s check is the primary obligation of an issuing bank,
which, as drawer and drawee of the cashier’s check, is the bank’s
own customer. See, Maddox v. First Westroads Bank, 199 Neb.
81, 256 N.W.2d 647 (1977); § 4-104(1)(e); 10 Am. Jur. 2d Banks
§ 544 (1963); 6 Banking Law § 133.10. Generally, payees of a
cashier’s check are not “customers” under § 4-104(1)(e). See
First Amer. Nat. Bank v. Commerce Union Bank, 692 S.W.2d
642 (Tenn. App. 1985).
Heckers alleged only that they were payees of the cashier’s
check, but failed to allege that they had an account pertaining
to the cashier’s check, or that Ravenna Bank had agreed to
collect items for Heckers. Thus, Heckers failed to allege that
they were “customers” of Ravenna Bank within § 4-104(1)(e).
Accordingly, Heckers failed to state facts sufficient to
constitute a cause of action under § 4-402 against Ravenna
Bank, Pohlmann, or Oliver. The demurrers to the “wrongful
dishonor” cause of action were correctly sustained
Wrongful Refusal to Honor the Cashier’s Check.
Although a bank accepts a cashier’s check by issuing it, such
acceptance does not become operative until delivery or
notification. Neb. U.C.C. § 3-410(1) (Reissue 1980). Wrongful
refusal to honor a cashier’s check occurs when a payee of a
cashier’s check delivers or negotiates the check for payment,
and the issuing bank refuses to honor the check. See, John
Deere Co. v. Boelus State Bank, 233 Neb. 818, 448 N.W.2d 163
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HECKER v. RAVENNA BANK 821
Cite as 237 Neb. 810
(1989); Thompson Poultry, Inc. v. First Nat. Bank of York, 199
Neb. 8, 255 N.W.2d 856 (1977); Neb. U.C.C. § 1-201(14)
(Reissue 1980) (“ ‘Delivery’ with respect to instruments,
documents of title, chattel paper or securities means voluntary
transfer of possession”); Neb. U.C.C. § 3-202(1) (Reissue
1980) (“Negotiation is the transfer of an instrument in such
form that the transferee becomes a holder. If the instrument is
payable to order it is negotiated by delivery with any necessary
indorsement; if payable to bearer it is negotiated by delivery”’).
From the facts alleged by Heckers, we draw the inference
that the necessary endorsements appeared on the cashier’s
check which Heckers delivered to Ravenna Bank. Heckers then
alleged that they were payees for the cashier’s check and that
Ravenna Bank, the issuing bank, refused to honor the check.
Hence, Heckers stated sufficient facts to constitute a cause of
action for Ravenna Bank’s wrongful refusal to honor the
cashier’s check drawn on the bank. However, Heckers failed to
allege that Pohlmann and Oliver bound themselves,
individually and outside their official capacities with Ravenna
Bank, to honor the cashier's check. For that reason, Heckers
failed to state sufficient facts to constitute a cause of action
against Pohimann and Oliver for “wrongful refusal” to honor
the cashier’s check.
MISJOINDER OF CAUSES OF ACTION
Section 25-806 provides that the “defendant may demur to
the petition only when it appears on its face . . . (5) that several
causes of action are improperly joined ... .” Neb. Rev. Stat.
§ 25-702 (Reissue 1989) provides that “[fe]xcept for product
liability actions, the causes of action so united must affect all
the parties to the action, and not require different places of
trial.” In Ravenna Bank vy. Custom Unlimited, 223 Neb. 540,
545, 391 N.W.2d 557, 561 (1986), we stated, “ ‘[Cjauses of
action involving different defendants cannot be joined unless
each cause affects them all and they have a joint or common
liability or interest.’ ” Accord, Fuchs v. Parsons Constr. Co.,
166 Neb. 188, 88 N.W.2d 648 (1958); Sickler v. City of Broken
Bow, 143 Neb. 542, 10 N.W.2d 462 (1943).
Heckers have misjoined some causes of action against
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822 237 NEBRASKA REPORTS
Ravenna Bank, Pohlmann, and Oliver because neither the
cause of action for breach of the credit or loan agreement nor
the cause of action for wrongful refusal to honor a cashier's
check legally relates to Pohlmann and Oliver. The district
court’s judgments on the issue of a misjoinder of causes of
action are correct.
DEFECT OF PARTIES
Section 25-806(4) provides that a “defendant may demur to
the petition only when it appears on its face . . . (4) that there is a
defect of parties, plaintiff or defendant ... .” Neb. Rev. Stat.
§ 25-318 (Reissue 1989) states: “Of the parties to the action,
those who are united in interest must be joined as plaintiffs or
defendants; but if the consent of one who should have been
joined as plaintiff cannot be obtained, he may be made a
defendant, the reason being stated in petition.” This court
stated that “parties jointly liable must be joined as defendants .
. .and of course the same rule would apply as to plaintiffs. . . .
[Jjoint obligees must sue jointly in actions ex contractu... .”
Harker v. Burbank, 68 Neb. 85, 89, 93 N. W. 949, 950 (1903).
Payees of the cashier’s check were Paul Hecker, Arnold
Hecker, and John Mingus. Heckers failed to join Mingus as a
plaintiff or, in accord with § 25-318, as a defendant. Thus,
Heckers’ petitions contain a defect of parties regarding an
action based on the jointly payable cashier’s check. The district
court’s judgments regarding a defect of parties are correct.
MOTION TO STRIKE
Section 25-913 provides that “[mJotions to strike pleadings
and papers from the files may be made with or without notice,
as the court or judge shall direct.” In Ferson v. Armour & Co.,
109 Neb. 648, 192 N.W. 125 (1923), the plaintiff filed a
400-page petition followed by three amended petitions over a
4-year period. This court characterized the Ferson pleading as
inflammatory language, conclusions of fact and law,
redundant allegations, unnecessary repetitions, scandal,
private chat, personal episodes, evidence, criminal
charges and other extraneous matters having no legitimate
relation to the stating of a cause of action for damages.
These flagrant violations of the rules of pleading stand out
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HECKER v. RAVENNA BANK 823
Cite as 237 Neb. 810
conspicuously on the face of the petition... .
.. . Litigants and counsel alike are answerable to the
court for violating established rules of procedure and
orders made in regard to pleadings. Plaintiffs’ fourth
petition not only violated established rules, but it was filed
in contempt of court. In a situation like this defendants
are not limited to the statutory method of attacking tlic
petition by motion to strike out improper matter or to
make allegations more definite and certain. . . . lt may be
stricken from the files, if fatal defects extend to the
pleading as a whole, or if plaintiffs in filing it ignored an
order of the court. . . . [However, this power to strike
pleadings and papers] should be sparingly exercised.
Otherwise innocent suitors may suffer from the mistakes
or the contumacy of attorneys whom the court itself has
licensed to practice law.
Ferson, supra at 649,651, 192 N.W. at 126-27.
The Ferson court declared that a trial court properly struck
an entire petition as a violation of a court order and a rule of
pleading, namely, a petition must contain “[a] statement of the
facts constituting the cause of action, in ordinary and concise
language, and without repetition.” Comp. Stat. § 8608 (1922).
See, also, Neb. Rev. Stat. § 25-804 (Reissue 1989).
In Lewin v. Lewin, 174 Neb. 596, 119 N.W.2d 96 (1962), this
court held that a motion to strike a petition should be treated as
a demurrer, and added that “[a] petition which shows on its face
that a cause of action could not be stated by amendment
appears to be [vulnerable to a motion to strike the pleading].”
174 Neb. at 602, 119 N.W.2d at 100. We now limit the preceding
expression in Lewin and declare that a motion to strike a
petition, pursuant to § 25-913, is not a substitute for a demurrer
under § 25-806 or a motion to strike or make more definite and
certain as authorized by Neb. Rev. Stat. § 25-833 (Reissue
1989). A motion to strike a petition, pursuant to § 25-913, may
be directed only to a petition filed in violation of a court’s order
or a rule of practice or procedure prescribed either by statute or
by the court in which the petition is filed.
In the present case, the appelices moved to strike Heckers’
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824 237 NEBRASKA REPORTS
fifth amended petitions as violations of the court orders, issued
on February 26, 1988, which provided that Heckers were
“hereby granted twenty (20) days from this date to file his Fifth
Amended Petition or may stand on his Fourth Amended
Petition... .” Heckers complied with the orders by filing their
amended petitions within 20 days. Yet, the district court
sustained the motions to strike. Although Heckers each filed
five amended petitions over 2 years, we are not directed to any
rule of practice or procedure, prescribed by statute or by rule of
the district court, which prohibited Heckers’ repetitive
pleading. Therefore, Heckers’ last amended petitions violated
neither a court order nor a rule of practice or procedure. Thus,
Hecker’s fifth amended petitions were not subject to a motion
to strike pursuant to § 25-913. Hence, the district court
improperly struck Heckers’ fifth amended petitions.
CONCLUSION
For the reasons expressed above, we affirm the district
court’s judgments sustaining Ravenna Bank’s demurrers
concerning misjoinder of the breach of contract actions against
the bank with the breach of contract actions against Pohimann
and Oliver, sustaining the demurrers concerning a defect of
parties for the conversion actions, sustaining the demurrers
regarding misjoinder of the causes of action for breach of
contract and “wrongful refusal” to honor the cashier’s check,
and sustaining the demurrers relative to a defect of parties
regarding the “wrongful refusal” actions. Accordingly, we
sustain the district court’s dismissal of the “wrongful dishonor”
actions against Ravenna Bank.
Further, we affirm the district court judgments sustaining
the Pohimann-Oliver demurrers pertaining to the breach of
contract actions, the “wrongful dishonor” actions, and the
“wrongful refusal” actions and, thus, affirm dismissal of those
actions against Pohlmann and Oliver. Additionally, we affirm
the district court’s judgments sustaining the Pohlmann-Oliver
demurrers regarding a defect of parties for the conversion
action.
However, we reverse the district court’s dismissal of Heckers’
breach of contract actions against Ravenna Bank; the
Petitioners’ Appendix
7 -
4 /
Nebraska Advance Sheets
TUTTLE & ASSOC . GENDLER RIS
Citeas237 Neb 825
conversion actions against the bank, Pohlmann, and Oliver:
and the “wrongful refusal” against the bank: hence, we remand
these particular causes, tnimediately aforementioned, for
further proceedings. We do not decide the propriety of joining
the specific causes of action mentioned in this paragraph
because the issue, as far as we are able to glean from the record,
was never presented to the district court.
Finally, we reverse the district court’s judgments striking
Heckers’ fifth amended petitions in their entirety, that is,
Heckers’ “last amended petitions,” which eventually may
become actuality or simply be an expression of hope by this
court.
AFFIRMED IN PART, ANDIN PART REVERSED
AND REMANDED FOR FURTHER
PROCFEDINGS
TUTTLE & ASSOCIATES. INC.. APPELLANT. V H. LEE GENDLER,
TRUSTEE, ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS:
CHADSEY ARCHITECTS, INC.: AND AMERACORP. INC.,ETAL.,
THIRD-PARTY DEFENDANTS, APPELLEES.
N.W.2d
Filed April 12,1991. No. 88-934.
1. Summary Judgment: Appeal and Error. in considering evidence on a motion for
summary judgment, both this court and the trial court must determine whether
there is any genuine issue as (0 any material fact, whether the ultimate inferences
to be drawn from those facts are clear, and whether the moving party is entitled
to judgment as a matter of law.
2. Summary Judgment. Summary judgment is proper when the pleadings.
depositions, admissions, stipulations. and affidavits in the record show that no
genuine issue exists as to any material fact or as to the ultimate inferences that
may be drawn from any material fact and that the moving party is entitled to
judgment as a matter of law.
3. Summary Judgment: Proof. A party moving for summary judgment has the
burden of showing that no genuine issue as to amy material fact exists.
Thereafter, the burden of producing contrary evidence shifts to the party
opposing the motion.
4. Summary Judgment: Real Estate: Vendor and Vendee: Liens: Foreclosure:
Petitioners’ Appencix
Page 128
emacs
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.