LOL Finance Company v. Johnson et al

Filing 303

MEMORANDUM AND ORDER - The defendant First National Bank of Omaha's motion for leave to file a reply brief (filing 302 ) is granted instanter. The defendant First National Bank of Omaha's objection to the entry of judgment including prejudgment interest (filing 298 ) is sustained. Final judgment shall be entered by separate document. Ordered by Judge Richard G. Kopf. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LOL FINANCE COMPANY,
Plaintiff,
v.
PAUL JOHNSON & SONS CATTLE CO.,
INC., FIRST NATIONAL BANK OF
OMAHA, ROBERT P. JOHNSON, KERI J.
MALOLEY, JOHN DOE and ABC
COMPANY,
Defendants.

PAUL JOHNSON & SONS CATTLE CO.,
INC.,
Third-Party Plaintiff,
v.
MAVERICK FEEDERS, INC.,
SHON SAWYER and JULIE SAWYER,
Third-Party Defendants.

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4:09CV3224

MEMORANDUM
AND ORDER

This matter is before the court on the defendant First National Bank of Omaha’s objection
to the entry of judgment including prejudgment interest (filing 298). The objection will be sustained.
On December 23, 2010, the court entered a memorandum and order (filing 227) granting the
plaintiff’s motion for summary judgment against Paul Johnson & Sons Cattle Co. (“Johnson
Feedlot”) and Robert Johnson. The court held that Johnson Feedlot and Mr. Johnson were jointly
and severally liable for converting cattle proceeds belonging to the plaintiff in the amount of
$2,126,442.77, together with prejudgment interest in the amount of $191,553.40 plus $699.10 per
day from September 1, 2010, through the date of entry of a final judgment.
Pursuant to a temporary restraining order entered by consent of the parties on November 5,
2009 (filing 18), certain funds were deposited into an approved escrow account. On March 21, 2011,

in accordance with the parties’ joint stipulation (filing 256), the court entered an order (filing 262)
authorizing and directing the release of all funds held in the escrow account to the plaintiff.
The case went to trial on March 28, 2011. At the conclusion of the trial on April 1, 2011,
the court directed the plaintiff to file an affidavit calculating a judgment amount to a date certain
(with credit for its receipt of the escrowed funds) and set a deadline for the defendants to file any
objections to the affidavit. (Filing 281 (text minute entry).)
On April 4, 2011, the jury returned a verdict (filing 289) finding that First National Bank of
Omaha (“FNBO”) conspired with, and aided and abetted, Johnson Feedlot in converting the
plaintiff’s property. That same date, the plaintiff filed its affidavit (filing 284) showing that it
received $635,503.88 from the escrow account on March 29, 2011. The total judgment amount as
of that date was calculated to be $1,829,303.29, and prejudgment interest thereafter was calculated
to be $601.41 per day.
On April 29, 2011, after obtaining several extensions of time, FNBO filed an objection to the
inclusion of any prejudgment interest in the judgment to be entered against it. FNBO argues the
plaintiff’s claim was unliquidated as to it because there was a reasonable controversy concerning its
liability to the plaintiff. In particular, FNBO notes that court determined in its ruling on the
plaintiff’s motion for summary judgment that “there is a genuine dispute whether FNBO knowingly
assisted PJSCC in committing the tort of conversion” and that “there are genuine issues of material
fact whether the defendants engaged in a civil conspiracy.” (Filing 227, at 39, 41.)
The plaintiff’s opposing brief (filing 300) was filed on May 10, 2011. Today, FNBO has
filed a motion for leave to submit a reply brief (filing 301) and has also filed the proposed brief
(filing 302). The motion will be granted instanter.
While FNBO is jointly and severally liable with Johnson Feedlot and Mr. Johnson for the full
amount of damages sustained by the plaintiff, prejudgment interest is not considered to be an element
of damages for conversion under Nebraska law. See Otto Farms, Inc. v. First Nat. Bank of York, 422
N.W.2d 331, 336 (Neb. 1988). “The Nebraska rule on liquidated damages is that damages are
liquidated when (1) there is no reasonable controversy over liability, and (2) the amount due and the
date thereof can be computed without opinion or discretion.” Id.
The court determined that both conditions were satisfied with respect to the claim against
Johnson Feedlot for conversion, and with respect to the claim against Mr. Johnson for aiding and

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abetting the conversion, but the same cannot be said for FNBO. Because FNBO’s liability was
genuinely disputed, an award of prejudgment interest against it is not warranted.
Accordingly, the court will enter judgment providing (1) that Johnson Feedlot, Robert
Johnson, and FNBO are jointly and severally liable for the value of the converted property, in the
amount of $1,490,938.37 ($2,126,442.77 - $635,503.88), plus taxable costs, and (2) that Johnson
Feedlot and Robert Johnson are jointly and severally liable for prejudgment interest, in the amount
of $338, 364.92 ($1,829,303.29 - $1,490,938.37) plus $601.41 per day since March 29, 2011, or
$25,860.63 ($601.41 x 43), for a total of $364,225.55.
IT IS ORDERED that:
1.

The defendant First National Bank of Omaha’s motion for leave to file a reply brief
(filing 302) is granted instanter.

2.

The defendant First National Bank of Omaha’s objection to the entry of judgment
including prejudgment interest (filing 298) is sustained.

3.

Final judgment shall be entered by separate document.

May 11, 2011.

BY THE COURT:

Richard G. Kopf
United States District Judge

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