BLB Aviation South Carolina, LLC v. Jet Linx Aviation Corporation et al

Filing 193

ORDER - IT IS ORDERED: Judgment will be granted in favor of BLB and against Jet Linx for breach of contract in the amount of $141,400 for unpaid lease payments and in the amount of $22,553.17 for overpaid maintenance costs. Judgment will be granted in favor of the defendants and against the plaintiff on the plaintiff's remaining claims. Judgment will be granted in favor of Jet Linx and against BLB for breach of contract in the amount of $158,014.98 for maintenance costs resulting from the oil loss incident. The defendants' oral motion for judgment as a matter of law is denied. Ordered by Magistrate Judge Thomas D. Thalken. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BLB AVIATION SOUTH CAROLINA, LLC, )
)
Plaintiff,
)
)
v.
)
)
JET LINX AVIATION LLC, JET LINX
)
AVIATION CORPORATION, JET LINX
)
MANAGEMENT COMPANY, LLC,
)
and JAMIE WALKER,
)
)
Defendants.
)

8:10CV42
ORDER

This is an action to determine the parties’ rights and responsibilities related to
agreements involving the lease, maintenance, and management of aircraft. The court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1332, as the parties are citizens of
different states and the amount in controversy exceeds $75,000. Pursuant to 28 U.S.C.
§ 636 and the consent of the parties,1 the matter was tried to the undersigned magistrate
judge February 6-8, 2012. The parties submitted closing arguments in writing, whereupon
the case was deemed submitted for decision.

BACKGROUND
The parties’ dispute arises from their business relationship entered to allow the
defendants’ aircraft charter flight services operation to use the plaintiff’s aircraft. The
plaintiff BLB Aviation South Carolina, LLC (BLB), an aviation company based in Baton
Rouge, Louisiana, owned aircraft. See Filing No. 148 - Pretrial Order (PTO) ¶ B(9). The
defendants operate an aircraft charter business. Id. ¶ B(12). After the defendant Jamie
Walker (Walker) contacted BLB, BLB and the defendants Jet Linx Aviation, LLC, Jet Linx
Aviation Corporation, and Jet Linx Management Company, LLC (collectively Jet Linx)
entered into two contracts that allowed Jet Linx to use two aircraft owned by BLB for

1

On July 15, 2011, United States Chief District Joseph F. Bataillon transferred this m atter to the
undersigned m agistrate judge. See Filing No. 124.

charter flight services. Id. ¶¶ B(10), B(16), B(24). BLB alleges the defendants fraudulently
and negligently induced BLB to purchase an aircraft, breached both contracts between the
parties, and breached the covenant of good faith and fair dealing by charging unwarranted
maintenance charges. Id. ¶ B(38). The defendants deny liability to BLB, arguing the
parties entered into an accord and satisfaction on BLB’s claims, and assert a claim against
BLB for unpaid maintenance charges. Id. ¶¶ B(39), C(18).
Before trial, BLB filed a trial brief (Filing No. 155) and proposed findings of fact and
conclusions of law (Filing No. 154). The defendants filed a trial brief (Filing No. 157) and
proposed findings of fact and conclusions of law (Filing No. 156). At the conclusion of
BLB’s case-in-chief, the defendants made an oral motion for judgment as a matter of law,
which the court took under advisement. See Filing No. 173 (court minutes); Trial Transcript
(TR.) 564-568. After the trial transcript (Filing Nos. 184, 185, and 186) was completed, the
parties simultaneously filed written closing arguments, then replies. BLB filed a brief (Filing
No. 189) and a reply brief (Filing No. 192). The defendants filed a brief (Filing No. 190)
and a reply brief (Filing No. 191). At the conclusion of briefing, the matter was deemed
submitted.

FINDINGS OF FACT
Based on the evidence presented and pursuant to Fed. R. Civ. P. 52(a)(1), the court
makes the following findings of fact:
BLB is a South Carolina limited liability company with its principal place of business
in Baton Rouge, Louisiana. See Filing No. 148 - PTO ¶ B(1). The members of BLB are
Barry L. Bellue, Sr. (Barry Bellue) and Barry L. Bellue, Jr. (Lee Bellue), both of whom are
citizens of the State of Louisiana. Id. Jet Linx Aviation, LLC is a Delaware limited liability
company with its principal place of business in Omaha, Nebraska. Id. ¶ B(2). Jet Linx
Aviation Corporation and Jet Linx Management Company, LLC are Delaware corporations
with their principal place of business in Omaha, Nebraska. Id. ¶¶ B(3), B(4). Walker, an
individual, is a resident and citizen of the State of Nebraska. Id. ¶ B(5). There is no
dispute the court has personal jurisdiction over the parties and subject matter jurisdiction,

2

pursuant to 28 U.S.C. § 1332(a)(1). Id. ¶¶ B(6), B(7). The parties also agree venue is
proper. Id. ¶ B(8).
BLB is an aviation company based in Baton Rouge, Louisiana. Id. ¶ B(9). BLB
owned and owns aircraft that have, from time to time, been used for aircraft charter flight
services. Id. On or about March 29, 2007, Walker, the president of Jet Linx Management
Company, contacted BLB regarding the possibility of entering into a dry lease or charter
agreement for a Diamond 1A airplane. Id. ¶ B(10); TR. 597. In response, Lee Bellue
called Walker during the first week of April 2007 regarding Jet Linx’s proposal to use BLB’s
existing aircraft in Jet Linx’s charter operations. See Filing No. 148 - PTO ¶ B(10). In
addition to discussions regarding Jet Linx’s management of BLB’s existing aircraft, Walker
and Lee Bellue discussed the possibility of entering into a dry lease agreement if BLB
purchased another aircraft. Id. ¶ B(12). Walker explained the terms and procedures for
a dry lease under which Jet Linx would lease an additional plane from BLB. Id.
In June 2007, BLB contacted an aircraft broker to purchase a type of aircraft Jet
Linx had indicated would be suitable for management under a dry lease agreement. Id.
¶ B(13). Ultimately, the broker identified a Mitsubishi MU300 Diamond 1A jet aircraft,
bearing aircraft registration number N400GK (N400GK). Id. Tony Boatwright (Boatwright),
the Jet Linx head of maintenance, met Lee Bellue in Little Rock, Arkansas, to evaluate
N400GK’s suitability for use in Jet Linx’s charter flights services. Id. ¶ B(14). N400GK was
acceptable to Jet Linx, if BLB refurbished the interior. Id. On or about August 10, 2007,
BLB purchased N400GK. Id. ¶ B(15). BLB invested $1,350,000 to purchase and upgrade
N400GK, including approximately $50,000 for the new interior. Id. As part of the purchase
agreement, the aircraft underwent equipment inspection and maintenance by Central
Flying Service beginning in June, 2007. Id.
On or about June 20, 2007, BLB and Jet Linx executed an Aircraft Dry Lease
Agreement for N400GK (the Dry Lease Agreement). Id. ¶ B(16); Ex. 20. The Dry Lease
Agreement provides, “[t]his Lease of aircraft is made effective as of August 1, 2007.” Ex.
20 p. 1. The Dry Lease Agreement states, “[Jet Linx] guarantees [BLB] a minimum
monthly lease payment of $47,100 per month, no matter the number of actual hours flown.”
Ex. 20 § 1 and Sched. A. The $47,100 amount is equal to 50 hours of flight time multiplied
3

by a $942 hourly rate. Id. Sched. A. The Dry Lease Agreement anticipated flight time in
excess of the initial 50 hours would be paid based on an hourly rate. Id. With the
exception of maintenance costs, Jet Linx agreed to pay for all costs associated with
N400GK during the term of the lease, including fuel, pilots, training, hangar, and insurance.
See Filing No. 148 - PTO ¶ B(16); Ex. 20 Sched. A.
Under the Dry Lease Agreement, certain maintenance charges were to be passed
through to BLB at Jet Linx’s cost. See Filing No. 148 - PTO ¶ B(17); Ex. 20 § 7 and Sched.
A. The Dry Lease Agreement states:
Lessor will pay for:
- maintenance (unscheduled maintenance, [Federal Aviation
Regulations] FAR Part 135 conformity, minor inspections and
A and B inspections will be performed by Jet Linx maintenance
technicians at a Labor Rate of $75 per hour and Parts plus
15%. Major inspections and C and D inspections will be
performed by an agreed upon third party).
Ex. 20 Sched. A.
The Dry Lease Agreement further provides: All “inspections, repairs, modifications,
maintenance, and overhaul work” would be performed “in accordance with the standards
set by Federal Aviation Regulations.” Ex. 20 § 7. Jet Linx agreed to “maintain log books
and records accurately reflecting the completion of such maintenance work during the term
of the Lease in accordance with the Federal Aviation Regulations.” Filing No. 148 - PTO
¶ B(18); see Ex. 20 § 7.
BLB delivered N400GK to Jet Linx in Omaha, Nebraska, on approximately August
24, 2007. See Filing No. 148 - PTO ¶ B(20); TR. 602. N400GK underwent additional
maintenance and was available for its first revenue producing flight in October 2007. See
TR. 602-603. In certain months during the term of the Dry Lease Agreement, Jet Linx paid
BLB less than the $47,100 minimum monthly payment under the Dry Lease Agreement.
See Filing No. 148 - PTO ¶ B(21). Jet Linx sent BLB monthly statements deducting
maintenance expenses incurred on the N400GK from the amounts due BLB under the Dry
Lease Agreement. Id. ¶ B(22).
During the time the parties negotiated the Dry Lease Agreement, the parties
negotiated an arrangement for BLB’s existing aircraft (N789DJ) to be available for Jet Linx
4

to charter out of Baton Rouge, Louisiana. See Filing No. 148 - PTO ¶ B(23). On or about
August 16 or 17, 2007, BLB and Jet Linx executed an Aircraft Management Services
Agreement (MSA), effective August 26, 2007, for BLB’s existing aircraft, N789DJ, based
in Baton Rouge, Louisiana. Id.; Ex. 48 p. 1, 11, 13. Under the MSA, the parties agreed
“BLB would make the aircraft available for a certain number of charter hours each month”
and Jet Linx would remit a $12,000 annual Aircraft Management Fee paid in installments
of $1,000 each month. See Filing No. 148 - PTO ¶ B(23); Ex. 48 - MSA Ex. 1. The parties
agreed BLB would receive 85% of charter revenue Jet Linx generated per hour with a
minimum of $1,572.50 per flight hour plus a fuel surcharge. See Filing No. 148 - PTO
¶ B(23); Ex. 48 - MSA Attach. 1.
Under the MSA, “Jet Linx agreed to ensure that all maintenance and repair work on
N789DJ was performed in accordance with the standards set out in the Federal Aviation
Regulations and to ensure that all such maintenance work was accurately recorded in
accordance with the Federal Aviation Regulations applicable to Jet Linx’s operation.” See
Filing No. 148 - PTO ¶ B(26). Additionally, the parties agreed BLB would reimburse Jet
Linx for expenses such as routine and non-routine maintenance. See Ex. 48 - MSA p. 5
and Ex. 3 ¶ g. Jet Linx sent BLB monthly statements deducting N789DJ’s maintenance
expenses from the amount due BLB under the MSA. See Filing No. 148 - PTO ¶ B(27).
From nearly the beginning of the contractual relationship between the parties,
disputes arose regarding amounts due from Jet Linx to BLB under the Dry Lease
Agreement and MSA. See Filing No. 148 - PTO ¶ (B)28. Disputes also arose regarding
maintenance expenses Jet Linx charged to BLB. Id. In May and June of 2008, the
disputes between the parties began to escalate. Id. ¶ (B)30.
On June 4, 2008, Barry Bellue requested that N789DJ be taken off Jet Linx’s
certificate and control of the aircraft be turned over to BLB. Id.; Exs. 14, 47. BLB
subsequently took over management of N789DJ. See Filing No. 148 - PTO ¶ (B)30. Also
on June 4, 2008, Jet Linx informed BLB that it was not interested in continuing the Dry
Lease Agreement after its August 1, 2008, expiration date under the existing terms and
proposed to BLB that Jet Linx continue to lease N400GK under a dry lease agreement with
terms different from the original Dry Lease Agreement. Id. ¶ (B)31; Ex. 64. The parties
5

subsequently entered into discussions about N400GK possibly remaining with Jet Linx
under different lease terms. See Filing No. 148 - PTO ¶ (B)31. The parties did not reach
such an agreement. Id.
From June through August of 2008, the parties had various discussions regarding
how much money the parties owed each other as the parties’ contractual relationship was
about to end. Id.; Exs. 60, 63. On August 6, 2008, Jamie R. Barrett (Barrett) of Jet Linx
sent a letter to BLB in which he stated that the parties had reached an agreement to end
the Dry Lease Agreement and settle the outstanding disputes between the parties
regarding payments owed. See Filing No. 148 - PTO ¶ (B)34; Ex. 66. The August 6, 2008,
letter enclosed a check to BLB for $12,347.50. See Filing No. 148 - PTO ¶ (B)34; Ex. 66.
On August 8, 2008, Barry Bellue sent an email to Barrett and Walker, objecting to some
of the maintenance charges discussed in the August 6, 2008, letter and ending the
remarks by writing, “I will keep open my options.” See Filing No. 148 - PTO ¶ (B)34; Ex.
68. On August 14, 2008, BLB cashed the check enclosed with the August 6, 2008, letter.
See Filing No. 148 - PTO ¶ (B)34; Ex. 67. On November 6, 2008, Barry Bellue told Jet Linx
to buy N400GK for $1.2 million or he would file a lawsuit. See Filing No. 148 - PTO
¶ (B)35; Ex. 144. Barrett replied, Jet Linx “has no interest in acquiring 400GK.” See Filing
No. 148 - PTO ¶ (B)35; Ex. 144.
On February 19, 2008, James Clark (Clark), the pilot in command, and Shannon
Montanye (Montanye), the second in command, both Jet Linx employees, flew N789DJ
from Omaha, Nebraska, to Sioux Falls, South Dakota. See Ex. 1 - Clark incident report.
After arriving in Sioux Falls, Clark performed a post-flight inspection of N789DJ. Id. Clark
checked the port and starboard engines and found acceptable oil levels, replaced the caps,
closed the caps, and turned the triggers in the down position. Id. Clark noted both engines
were a quart low on oil. Id.
On February 20, 2008, Clark and Montanye operated N789DJ when, prior to takeoff,
the aircraft lost significant oil pressure. See Filing No. 148 - PTO ¶ B(29); Ex. 1. When
Clark started the engine, all warning lights were green. See Ex. 1. Clark taxied N789DJ
to the runway and was cleared for takeoff. Id. Before takeoff, Clark and Montanye noticed
the port-side engine low oil pressure light illuminated. Id.; Ex. 2 - Montanye incident report.
6

Montanye also noted the oil pressure gauge read zero. See Ex. 2. Montanye informed the
flight control tower dispatcher who suggested Clark taxi off the runway. See Ex. 1.
Montanye instructed Clark to taxi clear of the runway and called Boatwright. Id.; Ex. 2. As
Clark taxied clear of the runway, the pilots shut down the engine in accordance with
Boatwright’s instruction. Id. Once taxied, Clark checked the oil cap on the port engine.
See Ex. 1. Clark observed the cap was still in place, but loose, and oil poured out of the
cowling. Id. The mechanic onsite removed the lower engine cowling and found the
dipstick laying in the cowling. See TR. 321:16-17.
On February 29, 2008, Dallas Airmotive performed a tear-down inspection of
N789DJ in accordance with the Pratt and Whitney JT15D-4D Maintenance Manual,
Section 72-00-00, Unscheduled Inspection For Oil Loss, which requires the engine be
removed and taken to an approved overhaul facility when oil pressure drops below a
certain level. See Ex. 101. Dallas Airmotive removed and inspected the engine, resulting
in significant maintenance and repair charges. See Filing No. 148 - PTO ¶ B(29). Dallas
Airmotive noted, “the oil filler cap exhibited cracking in the top locking feature of the
assembly.” See Ex. 101. Dallas Airmotive concluded the probable cause of distress was
from “[l]oss of oil from the engine [due] to a loose filler cap during engine runs in the field.”
Id.
After the incident, Clark and Montanye submitted statements describing the
February 20, 2008, incident to Mike Kopp (Kopp), Jet Linx’s Chief Pilot. See Exs. 1, 2. Jet
Linx disciplined Clark for failing to check the security of the oil cap the morning of the flight.
See Ex. 3 - Employee Disciplinary Report. Jet Linx also disciplined Clark for failing to shut
down the engine immediately following the indication of low oil pressure. Id. Jet Linx
determined Clark’s failure to follow Jet Linx’s policies “resulted in significant avoidable
expense to the company.” Id.
On April 28, 2008, Jet Linx submitted an insurance claim for the February 20, 2008,
oil loss incident. See Ex. 344. AIG Aviation determined the engine damage occurred
because of a mechanical failure and denied the claim on October 16, 2008. See Ex. 100.
After reconsideration, AIG Aviation maintained the denial of coverage on December 30,
2008. Id. Also, on December 30, 2008, Jet Linx sent BLB an invoice for $158,014.98 for
7

N789DJ’s maintenance charges. See Filing No. 148 - PTO ¶ B(37); Ex. 36. BLB refused
to pay arguing the charges were not BLB’s responsibility because Jet Linx’s pilots’
negligence caused the engine damage. Id. - PTO ¶ B(37).
After an investigation, on January 5, 2010, the FAA concluded evidence suggested
the oil cap was not properly installed at the time of the incident. See Ex. 101. The FAA
also noted the evidence suggested although the lock tab was cracked, the cap locking
feature still functioned. Id.

CONCLUSIONS OF LAW
Nebraska contract law governs this diversity action. See Filing No. 154 - Plaintiff’s
Proposed Findings of Fact and Conclusions of Law p. 19 ¶ 97; see generally Filing No.
156 - Defendants’ Proposed Findings of Fact and Conclusions of Law p. 10-15; see also
JN Exploration & Prod. v. W. Gas Res., Inc., 153 F.3d 906, 909 (8th Cir. 1998) (stating
“it is axiomatic that federal courts apply state substantive law in diversity suits”) (citing Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). When a federal district court exercises
its diversity jurisdiction over claims brought under state law causes of action, it is bound
by the state’s law as determined by the highest court in that state. Foy v. Klapmeier, 992
F.2d 774, 780 (8th Cir. 1993). “If there be no decision by that court then federal authorities
must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings
of other courts of the State.” Comm’r v. Estate of Bosch, 387 U.S. 456, 465 (1967); see
also First Colony Life Ins. Co. v. Berube, 130 F.3d 827, 829 (8th Cir. 1998) (stating a
federal court exercising diversity jurisdiction “must predict how the state’s highest court
would decide the issue”).

A.

Accord and Satisfaction
The parties dispute whether they reached an accord and satisfaction, in August

2008, settling their disagreements about the maintenance charges, lease payments, and
charter revenues owed to each other under the Dry Lease Agreement and MSA. See
Filing No. 148 - PTO p. 13 ¶ C(18). Jet Linx contends the parties settled or compromised
the amounts owing with regard to both aircraft, except for the expenses incurred for
8

N789DJ as a result of the February 20, 2008, oil loss incident. Id. BLB denies the parties
settled the matter. See Filing No. 189 - Plaintiff’s Closing p. 21.
“An executed compromise settlement of a good faith controversy is an accord and
satisfaction.” Farmland Serv. Coop., Inc. v. Jack, 242 N.W.2d 624, 626 (Neb. 1976).
“An accord and satisfaction is a discharge of an existing indebtedness by the rendering of
some performance different from that which was claimed as due and the acceptance of
such substituted performance by the claimant in full satisfaction of the claim.” Mischke v.
Mischke, 571 N.W.2d 248, 256 (Neb. 1997). The party seeking to enforce an accord and
satisfaction has the burden to prove “(1) a bona fide dispute between the parties, (2)
substitute performance tendered in full satisfaction of the claim, and (3) acceptance of the
tendered performance.” Lone Cedar Ranches, Inc. v. Jandebeur, 523 N.W.2d 364, 369
(Neb. 1994).
The evidence clearly establishes a bona fide dispute between the parties about the
maintenance charges, lease payments, and charter revenues owed under the Dry Lease
Agreement and MSA. Additionally, BLB accepted a $12,347.50 payment from Jet Linx.
See Filing No. 148 - PTO ¶ (B)34; Exs. 66, 68.

The key element of accord and

satisfaction, and the key issue here, is the intent of the parties. See Mischke, 571 N.W.2d
at 256. Such intent generally presents a question of fact unless the evidence creates no
conflict as to intent, then intent is determined as a matter of law. Lone Cedar, 523 N.W.2d
at 369. Accordingly the defendants must show the parties had a meeting of the minds to
resolve their dispute in exchange for the tendered substitute performance. See id.;
Peterson v. Kellner, 513 N.W.2d 517, 519-20 (Neb. 1994) (finding no accord where
payment amount and explanation letter were inconsistent).
The defendants contend Barry Bellue’s conduct including negotiations to conclude
the parties’ business relationship, verbal and written statements culminating in his August
8, 2008, email, and cashing Jet Linx’s $12,347.50 payment are sufficient evidence of the
parties’ accord and satisfaction. See Filing No. 190 - Defendants’ Closing p. 9-14. The
defendants argue Barry Bellue’s conduct is sufficient evidence to determine intent as a
matter of law. Id. at 14-17.

9

“[T]ender of a check does not work an accord and satisfaction unless there is a
condition that the money be accepted as full payment or not accepted at all.” Journal
Broad. Group, Inc. v. Spaghetti Works Rests., No. A-99-480, 2000 WL 1375541, at *3
(Neb. App. Sept. 26, 2000); see Peterson, 513 N.W.2d at 519-20 (finding no accord
despite accepting payment). Nevertheless,
[It] is a well-settled principle of Nebraska law that where a
certain sum of money is tendered by a debtor to a creditor on
condition that he accept it in full satisfaction of his demand, the
sum due being in dispute, the creditor must either refuse the
tender or accept it as made subject to the condition. If he
accepts it, he accepts the condition also, notwithstanding
any protest he may make to the contrary.
Rees v. Huffman, 384 N.W.2d 631, 634-35 (1986) (quoting Langness v. “O” Street
Carpet Shop, 353 N.W.2d 709, 713 (1984)). At a minimum, “use of the [payment]
enclosed should . . . be considered in determining whether or not there is an accord and
satisfaction.” Cox v. City of Freeman, Mo., 321 F.2d 887, 892 (8th Cir. 1963) (emphasis
added).
On June 23, 2008, Barry Bellue stated he received a billing statement related to
N789DJ and asked Barrett if it were the final billing. See Ex. 62. The parties continued
to “navigate this wrap up” to “finalize [their] business” by discussing and negotiating the
various maintenance and other charges until August. See Exs. 61, 62, 63, 336, 337, and
339. The August 6, 2008, letter from Barrett states:
Dear Barry:
As a follow up to our phone conversation of Friday, August 1,
Jet Linx is in agreement with your offer to end the aircraft lease
agreement for N400GK dated August 1, 2007 in the following
manner:
1.
Jet Linx will pay BLB Aviation South Carolina LLC (BLB)
reduced minimum monthly lease payments of $16,000
from $47,100 for each month of June and July and the
aircraft dry lease will terminate effective July 31, 2008.
2.
BLB will pay Jet Linx for work orders totaling $4,032.58
(see attached detail) for items outlined in WO6629 for
maintenance items incurred in June for the amount of
$2,260.92 plus $1,771.66 (our cost), for reimbursement

10

of Duncan WO associated with the radar altimeter
repair.
3.
Barry Bellue will pay the outstanding balance of the
June 2008 monthly billing for Owner’s Overhead &
Operating Expenses for N789DJ in the amount of
$15,619.92.
4.
In order to facilitate the transaction, Jet Linx will agree
to net out the amounts owed by each party: Jet Linx
$16,000 plus $16,000 and BLB $4,021.58 plus
$15,619.92 with a difference of $12,347.50 owed by Jet
Linx. A check in that amount is enclosed.
Barry, all of us at Jet Linx wish you and Lee the best in all of
your future aviation endeavors. Perhaps our paths will cross
again in the future. In keeping with our commitment to you, we
appreciate that both parties were able to work out an
acceptable agreement.
Ex. 66.
BLB cashed the check and Barry Bellue responded by email dated August 8, 2008.
See Exs. 67, 68. The subject line contains the notation “final check.” Ex. 68. The text of
the message states:
You guys deserve the ultimate in awards for shaking down the
wealthy who put their planes in your care. In our final wrap up
we get hit with a $4,000+ bill for creative charges. Thank God
we have finally escaped your shack [sic] downs. . . . I can’t
see how JetLinx will survive this fraudulent and questionable
business conduct. I will watch with special attention to see the
future of your company.
You guys are shady and
unscrupulous business dudes that talk a noble and sacred line
to you [sic] unsuspecting clients. I will keep open my
options.
Ex. 68 (emphasis added).
Barry Bellue testified at trial that he wrote the August 8, 2008, email immediately
after he received the August 6, 2008, letter to “let them know that I didn’t settle anything.”
TR. 478. Barry Bellue testified that prior to receiving the August 6, 2008, letter, he did not
know it was coming and it was a “ploy to try to suggest that [he] had reached some sort of
settlement with [Jet Linx].” TR. 477-478. However, during his deposition Barry Bellue
described the letter saying, “This was a letter that Jamie Barrett sent, based on me fighting
tooth and nail with him over a lot of issues and this was a letter that was sent after [they
11

returned N400GK].” Barry Bellue Depo. p. 32. Barry Bellue stated he now knows the
defendants contend the August 6, 2008, letter was a final settlement, but “[t]here was
never any discussion of settlement. We were trying to get an aircraft back, and if they
wanted to pay me anything at the end, I’m thankful. . . .” Id. at 36. Barry Bellue admitted,
“I responded to [the letter] . . . unprofessionally [and] . . . . the relationship was over with.”
Id. at 32. Communications between the parties ceased until Barry Bellue contacted Jet
Linx on November 6, 2008, suggesting Jet Linx purchase N400GK or he would file a
federal lawsuit and FAA complaint. See Ex. 144. Again on March 3, 2009, Barry Bellue
offered to sell N400GK to Jet Linx in exchange for BLB releasing all claims relating to
N789DJ and Jet Linx dropping any claims for maintenance charges relating to that plane.
See Ex. 70.
The court finds no meeting of the minds existed to settle the claims between the
parties as of the August 6, 2008, letter and August 8, 2008, response. The parties were
engaged in negotiations over the termination of their business relationship, however the
business relationship ended with the expiration of the one-year lease and Barry Bellue’s
June 4, 2008, request to terminate the MSA. Although the parties continued to attempt to
negotiate a financially beneficial arrangement involving the operation of the aircraft, they
were unable to do so.

Therefore, references to the end of the parties’ business

relationship does not indicate Barry Bellue’s intent to enter an accord and satisfaction.
Similarly, the parties’ lack of continued discussions immediately following the August 8,
2008, email does not support Barry Bellue’s intent to enter an accord and satisfaction.
Barry Bellue admitted his email was unprofessional and likely the parties would allow the
conflict to cool while waiting for additional information, such as whether BLB could sell
N400GK and the insurance decision about N789DJ. In the fall of 2008 both parties would
reasonably have known they had unfinished concerns.
The defendants argue Barry Bellue’s failure to explicitly object, on August 8, 2008,
to the substituted terms of performance contained in the August 6, 2008, letter is evidence
of an accord. The reasonable alternative, and BLB’s position, is Barry Bellue rejected the
entire offer of substituted terms. Although, the August 8, 2008, email subject line states
“final check,” Barry Bellue’s statements in the email and later correspondence indicate his
12

intent was to proceed with litigation or other means to obtain the funds he felt were owed.
BLB cashed the check because the Bellues knew the defendants owed BLB for
outstanding lease payments. Moreover, Barry Bellue testified he did not handle the check,
which was likely deposited by a member of his staff. See Barry Bellue Depo. p. 34-35.
Finally, neither the August 6, 2008, letter, nor the check itself stated there was a condition
the money be accepted as full payment or not accepted at all. Under the circumstances
present in this case, BLB’s cashing Jet Linx’s $12,347.50 payment does not support Barry
Bellue’s intent to enter an accord and satisfaction. When viewed as a whole, Barry
Bellue’s statements and conduct are evidence he did not have the intent to enter into an
accord and satisfaction in August 2008.
The defendants’ conduct similarly suggests the defendants knew the parties had not
reached an accord in August 2008. The defendants later sought payment for additional
maintenance charges. Additionally, the defendants failed to mention the August 6, 2008,
accord when Barry Bellue threatened litigation in November 2008 and sought settlement
in March 2009.

B.

Misrepresentation
BLB argues Walker knowingly made material false misrepresentations to BLB

regarding the maintenance expenses, flight hours, and profit BLB could reasonably expect
to earn if BLB purchased an aircraft and leased it to Jet Linx, which misrepresentation
induced BLB to purchase N400GK. See Filing No. 148 - PTO ¶ C(1); Filing No. 155 Plaintiff’s Trial Brief p. 18-22. BLB contends it sought detailed information from Walker
about the possibility of a dry lease agreement to determine whether the venture would be
profitable. See Filing No. 189 - Plaintiff’s Closing p. 5. BLB contends Walker’s responses
to this request constitute material false misrepresentations inducing BLB to purchase
N400GK and enter into the Dry Lease Agreement at issue. Id. Specifically, Walker
indicated the agreement would be based on a guaranteed minimum of 50 hours of flight
time each month, but based on his experience Jet Linx could easily fly an aircraft dry
leased from BLB to Jet Linx for 60-70 hours each month. See Ex. 74, 80; TR. 64-65; 7576. Additionally, at Lee Bellue’s request Walker provided “maintenance projections” based
13

on Jet Linx’s experience with Diamond Jet aircraft used in charter operations. Walker
provided “maintenance projections” indicating costs for scheduled maintenance and
unscheduled maintenance, the latter which was $21,396 over a 12-month period for aircraft
flown an average of 50 hours each month. See Ex. 74 p. 5. Based on Walker’s
representations, Lee Bellue prepared a budget to assess the profitability of purchasing an
aircraft for lease to Jet Linx. See Ex. 152; TR. 76-80.
Nebraska adopted Restatement (Second) of Torts § 552, which outlines the
elements of negligent misrepresentation as follows:
One who, in the course of his business, profession or
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance
of others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon
the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
Knights of Columbus Council 3152 v. KFS BD, Inc., 791 N.W.2d 317, 330 (Neb. 2010)
(quoting Restatement (Second) of Torts § 552).
“Generally, fraud cannot be based on predictions or expressions of mere
possibilities in reference to future events.” Outlook Windows P’ship v. York Int’l. Corp.,
112 F. Supp. 2d 877, 894 (D. Neb. 2000) (citing NECO v. Larry Price & Assoc., 597
N.W.2d 602, 606 (1999)). An exception to the general rule exists when “the future event
is within the control of the person making the representation.” Outlook Windows, 112 F.
Supp. 2d at 894. The recipient of the information must prove he reasonably relied on it.
Cao v. Nguyen, 607 N.W.2d 528, 532 (2000).
On April 19, 2007, Lee Bellue asked Walker, “If we do dry lease with the Diamond,
would . . . your company still be willing to do the remote charter here in Baton Rouge with
another airplane. We would buy an additional aircraft, probably a Beech 400A. We would
be interested in at least 200 to 300 hrs per year.” Ex. 74. Walker responded on April 20,
2007, “We would jump at the chance to offer you service out of Baton Rouge and could
easily offer you 200-300 of additional charter revenue, depending on your own utilization.”
Id. At that time, Lee Bellue understood he and Walker were discussing the projected flight
hours for N789DJ. TR. 64-65. Attached to the April 20, 2007, email was a spreadsheet
14

describing “estimated costs” for scheduled and unscheduled maintenance. Ex. 74 p. 5.
The “non-scheduled maintenance” is defined as, “estimated at 12 tire changes, 1 brake
change, and 10% of squawk2 recovery for items occurring outside of inspections per 12
months.” Id. The estimate for an aircraft in 2008 for non-scheduled maintenance based
on 600 hours flight time was listed as $21,396. Id. This figure is not explicitly represented
on Lee Bellue’s budget, which lists a general “maintenance reserves” category showing
$90,000 and was prepared for an aircraft other than the N400GK. See Ex. 152; TR. 80-81.
By May 8, 2007, Lee Bellue had agreed to purchase another aircraft for the purpose
of leasing it to Jet Linx. See Ex. 16; TR. 69-70. On May 15, 2007, Walker responded to
Lee Bellue’s concerns about revenue and the number of projected flight time hours by
stating, “We will commit to the 50 hour lease payment per month to meet you in the middle
and hopefully we’ll get 60 hours.” Ex. 80. Lee Bellue testified at trial Walker told him
Walker “felt” Jet Linx would be able to fly the leased aircraft 60 to 70 hours each month.
TR. 75-76.
BLB fails to sustain its burden of proving negligent misrepresentation. BLB failed
to show the representations made by Walker were false when made. Additionally, the
uncontroverted facts show Walker reasonably believed the information was true, based on
his experience and the market conditions at the time he made the representations to BLB.
Finally, it is doubtful the representations made by Walker are actionable as negligent
misrepresentations under Nebraska law, in any event, because the representations were
based on Walker’s opinion regarding future values which were not susceptible to definite
knowledge. This is particularly true where Walker clearly indicated the maintenance costs
were estimates based on particular maintenance examples and revenue was uncertain,
leading BLB to negotiate a particular lease payment based on a minimum number of flight
hours.

Additionally, Walker suggested Lee Bellue use national estimates for cost

projections rather than rely on Walker’s experience. TR. 153-154, 489-490, 598-601.
Finally, Walker acted reasonably by providing his opinions at BLB’s request. Accordingly,
BLB’s claim for negligent misrepresentation must fail.
2

Squawks are unscheduled m aintenance problem s found to need replacem ent or repair during a
routine inspection. TR. 342.
15

C.

Breach of Contract
“In order to recover in an action for breach of contract, the plaintiff must plead and

prove the existence of a promise, its breach, damage, and compliance with any conditions
precedent that activate the defendant’s duty.” Henriksen v. Gleason, 643 N.W.2d 652,
658 (2002). A “contract written in clear and unambiguous language is not subject to
interpretation or construction and must be enforced according to its terms.” Lexington Ins.
Co. v. Entrex Commc’n Servs., Inc., 749 N.W.2d 124, 132 (Neb. 2008). “A breach is a
nonperformance of a duty.” Id. “In any damage action for breach of contract, the claimant
must prove that the breach of contract was the proximate cause of the damages.” Sack
Bros. v. Great Plains Co-op., Inc., 616 N.W.2d 796, 809 (Neb. 2000). “As a general rule,
a party injured by a breach of contract is entitled to recover all damages which are
reasonably certain and which are naturally expected to follow the breach.” Phipps v.
Skyview Farms, Inc., 610 N.W.2d 723, 733 (Neb. 2000). “[T]he ultimate objective of a
damages award is to put the injured party in the same position that the injured party would
have occupied if the contract had been performed, that is, to make the injured party whole.”
Centurion Stone of Neb. v. Trombino, 812 N.W.2d 303, 309 (Neb. 2012).

1.

Lease Payments

BLB contends Jet Linx breached the Dry Lease Agreement by failing to pay BLB
$47,100 for each month of N400GK’s one-year lease. See Filing No. 189 - Plaintiff’s
Closing p. 15; Filing No. 148 - PTO ¶¶ C(6), C(7). BLB argues Jet Linx failed to make or
made insufficient payments for four of the twelve months. BLB contends Jet Linx failed to
make any lease payment for August 2007. Ex. 154; TR. 117. Jet Linx does not dispute
this allegation. Jet Linx paid BLB $15,000 on October 26, 2007, credited toward the lease
payment for September 2007. Ex. 154. BLB credited Jet Linx for $32,000 paid on August
8, 2008, toward the lease payments for June and July 2008. Ex. 154.
The defendants argue BLB neglected to fulfill its own obligation under the Dry Lease
Agreement by failing to provide Jet Linx with an operable aircraft until October 2008, thus
relieving Jet Linx of its duty to make full payments. See Filing No. 190 - Defendants’
Closing p. 28-29. Additionally, the defendants contend the contract did not actually require
16

monthly payments of $47,100 because maintenance and other charges were to be
deducted. Id. at 29, 37. Finally, the defendants assert the parties modified the Dry Lease
Agreement to allow reduced payments for the four months at issue. Id. at 36. Specifically,
the defendants argue Lee Bellue accepted Walker’s offer to pay a reduced lease payment
of $15,000 for August and September 2007. Id. Similarly, the defendants contend Barry
Bellue accepted Walker’s offer to pay a reduced lease payment of $16,000 for June and
July 2008. Id.
The Dry Lease Agreement provides, “[t]his Lease of aircraft is made effective as of
August 1, 2007.” Ex. 20 p. 1. The Dry Lease Agreement states, “[Jet Linx] guarantees
[BLB] a minimum monthly lease payment of $47,100 per month, no matter the number of
actual hours flown.” Ex. 20 § 1 and Sched. A. The $47,100 amount is equal to 50 hours
of flight time multiplied by a $942 hourly rate. Id. Sched. A. The Dry Lease Agreement
anticipated flight time in excess of the initial 50 hours would be paid based on an hourly
rate. Id. BLB delivered N400GK to Jet Linx in Omaha, Nebraska, on approximately
August 24, 2007. See Filing No. 148 - PTO ¶ B(20); TR. 602. N400GK underwent
additional maintenance and was available for its first revenue producing flight in October
2007. See TR. 602-603. The Dry Lease Agreement terminated by its own terms on July
31, 2008, without renewal. Exs. 20, 64.
“To successfully bring an action on a contract, a plaintiff must first establish that the
plaintiff substantially performed the plaintiff’s obligations under the contract.” VRT, Inc. v.
Dutton-Lainson Co., 530 N.W.2d 619, 623 (Neb. 1995).
Substantial performance is shown when the following
circumstances are established by the evidence: (1) The party
made an honest endeavor in good faith to perform its part of
the contract, (2) the results of the endeavor are beneficial to
the other party, and (3) such benefits are retained by the other
party. If any one of the circumstances is not established, the
performance is not substantial and the party has no right to
recover.
Id.
The evidence presented at trial shows BLB made an honest effort to supply the
defendants with N400GK in an operable and charter-worthy condition. BLB purchased

17

N400GK had repairs made, refurbished the interior, and delivered the aircraft on August
24, 2007. BLB’s conduct was in response to Jet Linx’s request and beneficial to Jet Linx
in terms of providing N400GK in an operable and charter-worthy condition. The aircraft
underwent additional unanticipated maintenance, paid for by BLB, at no fault to either
party. In any event, the parties would have reasonably been aware on June 20, 2007,
when they executed the Dry Lease Agreement, that N400GK was not ready to begin
charter service on August 1, 2007. See Ex. 20. Nevertheless, the Dry Lease Agreement
stated it became effective on that date. Id. The Dry Lease Agreement makes no provision
for delaying, suspending, or omitting payment under the lease until N400GK began making
revenue producing charter flights. Accordingly, Jet Linx retained the duty to pay BLB under
the terms of the lease.
The defendants contend the parties modified the contract to reduce the lease
payments owed for the four months at issue. See Filing No. 190 - Defendants’ Closing p.
35-36. By its own terms, “any change or modification [to the Dry Lease Agreement] must
be in writing and signed by both parties.” Ex. 20 - Dry Lease Agreement p. 7 § 13. In any
event, “where the modification of a contract substantially changes the liability of the parties,
mutual assent is required.” Whorley v. First Westside Bank, 485 N.W.2d 578, 581 (Neb.
1992). The evidence before the court is Lee Bellue sought payment under the Dry Lease
Agreement in October 2007, reminding the defendants that he had to make monthly
payments of $15,000 on his bank loan for N400GK. TR. 82, 121. In response, Jet Linx
paid $15,000, however Lee Bellue did not agree to reduce Jet Linx’s liability under the Dry
Lease Agreement. TR. 121, 158-160. Walker testified at trial he negotiated with Lee
Bellue to make a short payment of $15,000 until N400GK was available for revenue
producing flights. TR. 603-604. Walker, who had also negotiated and signed the Dry
Lease Agreement months earlier, remained under the misunderstanding that Jet Linx’s
lease payments were based on the number of charter hours flown, rather than the
minimum flat rate of $47,100. Ex. 82. Accordingly, Walker agreed to make the $15,000
payment “in the spirit of the – the bigger partnership” as opposed to meeting an obligation
under the Dry Lease Agreement. See TR. 603. As discussed in more detail above, the
court finds Barry Bellue did not accept Walker’s August 6, 2008, offer for reduced
18

payments for June and July 2008. For these reasons, the court finds the parties did not
modify the Dry Lease Agreement to decrease Jet Linx’s lease payments. Finally, the court
will not reduce Jet Linx’s obligation under the Dry Lease Agreement because there was the
possibility costs would have been incurred to deduct from the lease payment, if N400GK
had been flown in August and September 2007. The defendants provided no proof costs
were incurred during the period and the court will not speculate about costs which have no
basis in fact.
Jet Linx breached the Dry Lease Agreement by failing to pay BLB $47,100 each
month from August 2007 through July 2008. The court finds, however Jet Linx’s conduct
was not arbitrary and capricious but based on incorrect but reasonable assumptions. Jet
Linx owes BLB $141,400 under the terms of the Dry Lease Agreement.

2.

Absence of Maintenance Documentation

BLB argues Jet Linx breached its obligations under the Dry Lease Agreement and
MSA because Jet Linx failed to maintain maintenance records in accordance with
applicable FAA regulations. See Filing No. 148 - PTO ¶ C(10). BLB argues because BLB
lacked proper FAA required documentation, BLB would have to replace parts and redo
maintenance for which Jet Linx did not maintain proper records. See Filing No. 155 Plaintiff’s Trial Brief p. 18. Further, BLB argues the missing records reduced the resale
value of the aircraft. See Filing No. 189 - Plaintiff’s Closing p. 17. BLB argues it suffered,
according to Keith Flinn (Flinn), BLB’s expert, $171,363.37 3 in damages. Id. at 18; Ex.
156.
Jet Linx argues Flinn did not conduct an inspection in the same manner as a normal
pre-buy inspection because Flinn did not review all records up to the date of Flinn’s
inspection, but only the records Jet Linx maintained. See Filing No. 190 - Defendants’
Closing p. 32. Therefore, because Flinn did not perform an actual pre-buy inspection,

3

$39,228.07 in dam ages for m issing parts tags and $35,110.70 in dam ages for m issing m aintenance
log docum entation for work on N400GK. See Filing No. 189 - Plaintiff’s Closing p 18. BLB argues it suffered
$81,764.08 in dam ages for m issing parts tags and $15,260.52 in dam ages for m issing m aintenance log
docum entation for work on N789DJ. Id.
19

Flinn’s testimony lacks foundation. Id. at 32-33. Jet Linx also argues if Flinn had actually
inspected the aircraft, Flinn could have verified whether parts tag were missing. Id. at 33.
Jet Linx states under FAA regulations, records need only be maintained with an aircraft for
one year or until the described work is superseded. Id. at 32. Jet Linx argues the alleged
missing documents could have been properly discarded because either work was
superseded or one year had passed between the time Jet Linx returned the aircraft to BLB
and Flinn inspected the documents. Id. at 32. Lastly, Jet Linx argues, even assuming Jet
Linx breached the contract for failing to maintain FAA required documentation, BLB’s
damages are speculative. Id. at 35, 37.
In response, BLB argues Flinn’s failure to analyze maintenance records to the date
of the inspection does not cast doubt on Flinn’s conclusions that Jet Linx failed to properly
maintain FAA required documents. See Filing No. 192 - Plaintiff’s Reply p. 14. BLB
argues a document review up to the inspection is unnecessary because the relevant time
period is the time Jet Linx operated the aircraft. Id. at 14-16. BLB contends, for its breach
of contract claim, whether the FAA required BLB to keep records after one year is
irrelevant because Jet Linx had a contractual obligation to maintain FAA required
documentation while Jet Linx operated the aircraft. Id. at 14-16. BLB argues because Jet
Linx failed to maintain proper documents and provide BLB the documents, Jet Linx
breached the contract. Id. BLB argues in a pre-buy inspection, the inspector does not
verify parts by physically looking at the aircraft, as some parts are not accessible. Id. at
15. Lastly, BLB argues BLB’s damages are not speculative because BLB suffered
damages selling N400GK “as is,” which necessarily contemplates a lower price than if a
full pre-buy inspection was performed. Id. at 16.
Under the MSA, Jet Linx was responsible for “ensuring [N789DJ] complies with FAA
maintenance requirements for accurate record entries.” See Ex. 48 - MSA Ex. 1. In the
PTO, the parties agreed Jet Linx would “ensure that all such maintenance work was
accurately recorded in accordance with the Federal Aviation Regulations applicable to Jet
Linx’s operation [of N789DJ].” See Filing No. 148 - PTO ¶ B(26). Under the Dry Lease
Agreement, the parties agreed:

20

All inspection, repairs, modifications, maintenance, and
overhaul work . . . will be performed in accordance with the
standards set by the Federal Aviation Regulations. [Jet Linx]
will maintain all log books and records pertaining to the Aircraft
during the term of this Lease in accordance with the Federal
Aviation Regulations. Such records will be made available for
examination by [BLB], and [Jet Linx], at the termination of this
Lease, will deliver such records to [BLB].
Ex. 20 - Dry Lease Agreement p. 5, § 7. Further, the parties agreed in the PTO that Jet
Linx agreed “to maintain log books and records accurately reflecting the completion of such
maintenance work during the term of the [Dry Lease Agreement] in accordance with the
Federal Aviation Regulations.” See Filing No. 148 - PTO ¶ B(18).
FAA regulation 91.417 requires an owner or operator “keep the following
records . . . : Records of the maintenance, preventive maintenance, and alteration and
records of the 100-hour, annual, progressive, and other required or approved inspections,
as appropriate, for each aircraft (including the airframe) and each engine, propeller, rotor,
and appliance of an aircraft.” 14 C.F.R. § 91.417 (2012). The maintenance records “shall
be retained until the work is repeated or superseded by other work or for 1 year after the
work is performed.” Id. Under the FAA regulations and the contracts, Jet Linx had a duty
to maintain FAA required records for maintenance performed on N400GK and N789DJ
during the time Jet Linx operated the aircraft.
Once the court determines a duty exists, the court must determine whether a
breach, which “is a nonperformance of a duty,” occurred. Phipps, 610 N.W.2d at 730.
Flinn reviewed aircraft records for maintenance performed from August 2007 to May 2008
(N400GK) and July 2007 to May 2008 (N789DJ). TR. 367:16-22. Flinn concluded FAA
required documentation or part tags were missing for parts installed and maintenance
performed on N400GK and N789DJ. TR. 325:25 - 359:7; Ex. 156. Allen King, Jet Linx’s
expert, testified, “[s]ome of [the documents] met the exact requirements . . . . Not all the
documents I reviewed” and “some of the documents [he] reviewed were simple invoices.”
TR. 587:13-18; 588:2-10. Jet Linx’s argument that Flinn failed to review records after the
relevant time period is not persuasive. Additionally, Jet Linx’s argument that parts or
maintenance would have been superseded or the documents discarded because a year

21

had passed is not persuasive. The relevant time period is the time Jet Linx operated the
aircraft. If Jet Linx failed to maintain the documents, then Jet Linx breached the contracts.
BLB’s contract claim alleges Jet Linx failed to maintain FAA required documentation during
the time Jet Linx operated the aircraft. Even if Flinn performed a pre-buy inspection and
work was superseded or documents discarded, this court can still find Jet Linx breached
the contract terms by failing to maintain FAA required documentation. The evidence
indicates Jet Linx failed to provide all FAA required documentation; therefore, the court
finds Jet Linx breached its duty to maintain FAA required documentation for maintenance
performed on N400GK and N789DJ.
Although Jet Linx’s failure to provide proper documentation could cause damages,
BLB fails to show BLB suffered damages. Flinn testified “the effect of [the missing
documentation or part tags is] hard to show during that 12-month period . . . without having
the proper maintenance documentation, that the aircraft was maintained properly per [FAA
regulations]. And it could have an effect on the value of the airplane.” TR. 359:19-24. In
order to rectify the lack of documentation or part tags, Flinn testified BLB would “either redo
that maintenance task that you don’t have a record for, or if you don’t have a parts tag for
you’d have to take the part and get it recertified or something like that to make sure you
have airworthy components on the airplane.” TR. 360:3-7. BLB has not proven the
missing records diminished N400GK’s value at sale. Since an actual pre-buy inspection
was not performed, there is no evidence indicating how much N400GK’s value was
diminished. Although BLB sold N400GK “as is” and argues N400GK was sold at a lower
price, there is only speculation as to how much BLB was damaged by selling N400GK “as
is” instead of with a pre-buy inspection. Further, BLB did not install new parts or redo
maintenance because of missing documentation. Similarly, BLB has not shown BLB
installed new parts or performed maintenance again on N789DJ because of the missing
maintenance documentation and there is no evidence the alleged missing documentation
diminished N789DJ’s value. “Generally, while damages need not be proved with
mathematical certainty, neither can they be established by evidence which is speculative
and conjectural.” Sack Bros. v. Great Plains Co-op., Inc., 616 N.W.2d 796, 809 (Neb.
2000). “Damages which are uncertain, speculative, or conjectural cannot be a basis for
22

recovery.” Hitzemann v. Adam, 518 N.W.2d 102, 107 (Neb. 1994). BLB fails to show Jet
Linx’s breach caused BLB damages. BLB’s damages are speculative and therefore BLB
fails to carry its burden and establish a breach of contract.

3.

Maintenance Costs

Jet Linx marked up costs for maintenance third parties performed on N789DJ by
$15,774.67. See Ex. 155. BLB argues Jet Linx marked up the costs for maintenance and
parts without a contractual basis under the MSA. See Filing No. 192 - Plaintiff’s Reply p.
16-17. Additionally, BLB argues the parties did not reach a verbal agreement Jet Linx
could mark up maintenance and parts expenses. Id. at 17. BLB also argues Jet Linx
overcharged BLB for maintenance on N400GK in the amount of $6,778.50 by marking up
the cost of work performed by outside vendors and charging more than $75 per hour for
labor performed by Jet Linx maintenance personnel. See Filing No. 189 - Plaintiff’s Closing
p. 19.
Jet Linx argues BLB agreed maintenance and parts could be marked up for N789DJ
in exchange for the removal of a provision in the MSA requiring a maintenance reserve
account. See Filing No. 190 - Defendants’ Closing p. 39-40. Jet Linx references Barrett’s
deposition testimony wherein Barrett testified, “[he] believe[d] that because [Jet Linx and
BLB] negotiated the operating expense fund out of the contract, . . . [Jet Linx] needed to
have a markup on parts to make whole some of [Jet Linx’s] costs.” Id. (quoting Barrett
Depo. 44:19-24). Jet Linx argues the MSA supports Barrett’s testimony and the MSA
neither prohibit nor specifically allow mark ups. Id. at 40.
Jet Linx accurately states “[o]ne of the most well-established principles of Nebraska
law is that once the parties reduce their agreement to a writing, that writing controls to the
exclusion of any acts supposedly occurring prior to or contemporaneously with the signing
of the agreement.” See Filing No. 190 - Defendants’ Closing p. 18 (citing R & B Farms,
Inc. v. Cedar Valley Acres, Inc., 798 N.W.2d 121, 129-30 (Neb. 2011)). “The parol
evidence rule states that if negotiations between the parties result in an integrated
agreement which is reduced to writing, then, in the absence of fraud, mistake, or ambiguity,
the written agreement is the only competent evidence of the contract between [the
23

parties].” R & B Farms, 798 N.W.2d at 129-30. “The parol evidence rule renders
ineffective proof of a prior or contemporaneous oral agreement which alters, varies, or
contradicts the terms of a written agreement.” Par 3, Inc. v. Livingston, 686 N.W.2d 369,
373-74 (Neb. 2004). “[A] written contract which is expressed in clear and unambiguous
language is not subject to interpretation or construction, and the intention of the parties
must be determined from the contents of the document alone.” Lueder Const. Co. v.
Lincoln Elec. Sys., 424 N.W.2d 126, 129 (Neb. 1988).
The MSA BLB and Jet Linx executed contains an “Entire Agreement” provision,
which provides the agreement “contain[s] the entire understanding between Manager and
the Owner . . . and neither party is relying on any prior . . . verbal agreements . . . .” Ex. 48,
p. 10. Further, the MSA states the “[a]greement may be amended but only on a written
addendum executed by the Owner and Manager.” Id. No such written addendum for mark
up of costs was executed. Additionally, Barrett’s testimony that he believed the parties
negotiated mark ups in exchange for eliminating the operating expense fund is barred
under the parol evidence rule and does not affect the terms of the MSA. See R & B
Farms, 798 N.W.2d at 129-30.
Jet Linx has a duty to comply with the terms of the MSA.

The MSA limits

reimbursements to Jet Linx under MSA section 7.1, which provides, “[BLB] is responsible
for reimbursing [Jet Linx] for services and supplies . . . . Examples of reimbursable
expenses are listed in Exhibit 3.” See Ex. 48 - MSA p. 5. MSA Exhibit 3, in part, sets forth
the following as reimbursable expenses: “[r]outine and non-routine maintenance, including
parts, supplies and base labor, periodic inspections and repairs, engine and component
changes or additions, accessories or parts.” Id. at 18 Ex. 3 ¶ g. MSA Exhibit 3 does not
include Jet Linx’s mark up costs. Jet Linx breached its duty to comply with the terms of the
MSA when Jet Linx, in contravention to the terms and without basis under the MSA,
marked up of costs for maintenance and parts. As a result, Jet Linx caused BLB to pay
Jet Linx more than the MSA required. BLB suffered $15,774.67 in damages, which
represents the total amount overcharged due to Jet Linx’s mark ups on N789DJ. See Ex.
155. Therefore, BLB is entitled to $15,774.67 in reimbursement.

24

Jet Linx does not dispute it overcharged BLB for maintenance on N400GK by
marking up the cost of work performed by outside vendors and charging more than $75 per
hour for labor performed by Jet Linx maintenance personnel. BLB suffered $6,778.50 in
damages, which represents the total amount overcharged. See Ex. 155. Therefore, BLB
is also entitled to $6,778.50 in reimbursement for mark ups on N400GK’s costs.
Despite the court’s finding Jet Linx breached the contract with regard to the
maintenance costs, the facts do not support a finding that Jet Linx’s billing practices
significantly impaired the benefits BLB received under the MSA and Dry Lease Agreement.
See Spanish Oaks, Inc. v. Hy-Vee, Inc., 655 N.W.2d 390, 400 (Neb. 2003) (“A violation
of the covenant of good faith and fair dealing occurs only when a party violates, nullifies,
or significantly impairs any benefit of the contract.”). Therefore, BLB’s claim for breach of
the covenant of good faith and fair dealing as listed in the PTO, fails. See Filing No. 148 PTO ¶ C(14).

D.

Oil Loss Incident
1.

Breach of Contract

Jet Linx asserts a counterclaim against BLB for charges incurred due to
maintenance on N789DJ after the February 20, 2008, incident. See Filing No. 148 - PTO
¶ B(39). Jet Linx states the maintenance charges arise from the removal, tear-down, and
remounting of N789DJ’s engine. See Filing No. 157 - Defendants’ Trial Brief p. 8. Jet Linx
argues because the oil pressure dropped so low the engine had to be removed and torn
down to determine the extent of damage. See Filing No. 190 - Defendants’ Closing p. 41.
Jet Linx argues BLB, pursuant to the MSA, is required to pay for maintenance. Id. at 40.
Additionally, according to Jet Linx, the invoiced amount began accruing interest as of
January 20, 2009. See Filing No. 152 - Statement of Jet Linx’s Damages. Therefore, with
interest, Jet Linx alleges the amount due, as of January 24, 2012, is $240,972.84. Id.
BLB argues the evidence demonstrates the oil loss incident and subsequent
charges were the result of Jet Linx’s pilots’ negligence. See Filing No. 189 - Plaintiff’s
Closing p. 34. Therefore, BLB contends BLB is not responsible for the maintenance and
repair charges. See Filing No. 192 - Plaintiff’s Reply p. 19.
25

The parties do not dispute the MSA governs Jet Linx’s counterclaim for
reimbursement. Under the MSA, BLB is required to reimburse Jet Linx for certain
maintenance charges. Specifically, the MSA states:
7.1
REIMBURSEMENTS TO MANAGER. The Owner is
responsible for reimbursing Manager for services and supplies
(including insurance, if any) for the Aircraft, which are obtained
or furnished by Manager on behalf of the Owner. Examples of
reimbursable expenses are listed in Exhibit 3, of this
Agreement.
Ex. 48 - MSA p. 5. Exhibit 3 sets forth the following:
g)
Routine and non-routine maintenance, including parts,
supplies and base labor, periodic inspections and repairs,
engine and component changes or additions, accessories or
parts.
Id. at 18. BLB’s responsibility for maintenance services is limited under MSA section 10.2:
10.2 LIMITS OF LIABILITY. Manager does not assume
any liability for damages caused by or resulting from, directly
or indirectly, wholly or in part, any failure or fault other than its
negligence, willful misconduct or breach of contract in
furnishing or omitting to furnish services under this agreement.
Id. at 8 (emphasis added).
The engine required maintenance because the oil in the engine fell below the
minimum level required under the engine manufacturer’s maintenance manual. See Filing
No. 148 - PTO ¶ B(29). Due to the maintenance, Jet Linx incurred $158,014.98 in
expenses. See Ex. 36. After the insurance claim was denied on December 30, 2008, on
the same day, Jet Linx sent BLB an invoice for the full amount of expenses. Id. Under the
MSA, BLB is “responsible for reimbursing [Jet Linx] for services and supplies.” See Ex. 48
- MSA p. 5. An example of such services and supplies is non-routine maintenance for
engine repairs. Id. at 8. Thus, pursuant to the terms of the MSA, BLB is obligated to
reimburse Jet Linx for the $158,014.98, plus interest, unless the MSA excuses BLB from
performance.

BLB did not reimburse Jet Linx; however, BLB contends Jet Linx is

responsible for the maintenance charges related to the oil loss incident because Jet Linx’s
negligence caused the incident, resulting in the required maintenance. Therefore, in order

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to determine the party responsible for the maintenance charges, this court must determine
whether Jet Linx was negligent in operating N789DJ on February 20, 2008.

2.

Negligence

BLB argues the damage to the engine was the result of pilot error and therefore BLB
is not responsible for maintenance charges associated with the oil pressure incident. See
Filing No. 155 - Plaintiff’s Trial Brief p. 29. BLB argues Jet Linx agreed to assume liability
for damages arising out of Jet Linx’s negligence. Id. at 29-30. Jet Linx references the
disciplinary action taken against Jet Linx’s pilot, Clark, as evidence of Clark’s negligence.
Id. BLB further argues, even if the oil cap was cracked, there is no evidence the cracked
oil cap caused the loss of oil. See Filing No. 189 - Plaintiff’s Closing p. 37. BLB argues
the cracked cap likely resulted from Clark’s negligent failure to secure the cap. Id. at p. 37.
Lastly, BLB argues, even if the engine started to leak because the oil cap was cracked,
Clark was still negligent in failing to promptly shut down the engine when low oil pressure
was indicated. Id. at 38. Therefore, BLB contends Jet Linx is responsible for the
maintenance charges because Jet Linx’s pilots were negligent when they did not check
and secure the oil cap before the flight and failed to immediately shut down the engine
when there was low oil pressure. See Filing No. 192 - Plaintiff’s Reply p. 19.
Jet Linx argues there is no evidence of what caused the engine damage. See Filing
No. 190 - Defendants’ Closing p. 41. However, Jet Linx argues the evidence does show
the pilots followed procedure and did not breach any duty. Id. at 41. Jet Linx argues
“[t]here is nothing except speculation to show either that the pilot did not shut down the
engine fast enough to prevent the oil loss or even if it was possible that shutting the engine
down sooner would have prevented the oil loss.” Id. at p. 6. Jet Linx states, although it
first assumed pilot error caused the engine damage, after the tear-down inspection, Jet
Linx learned the oil cap was cracked. See Filing No. 191 - Defendants’ Reply p. 6.
“Ordinary negligence is defined as the doing of something that a reasonably careful
person would not do under similar circumstances, or the failing to do something that a
reasonably careful person would do under similar circumstances.” Wilke v. Woodhouse
Ford, Inc., 774 N.W.2d 370, 379 (Neb. 2009). “In order to recover in a negligence action,
27

a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such
duty, causation, and damages.” Martensen v. Rejda Bros., Inc., 808 N.W.2d 855, 861-62
(Neb. 2012).

“One alleging negligence has the burden to prove such negligence.”

Bargmann v. Soll Oil Co., 574 N.W.2d 478, 485 (Neb. 1998). The court will address the
elements of negligence seriatim.

a.

Duty

“The question of what duty is owed and the scope of that duty is multifaceted.”
Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 628 N.W.2d 697, 703 (Neb. 2001).
“[W]hether a legal duty exists for actionable negligence is a question of law dependent on
the facts in a particular situation.” Martensen, 808 N.W.2d at 862. “As a general matter,
the existence of a duty serves as a legal conclusion that an actor must exercise that
degree of care as would be exercised by a reasonable person under the circumstances.”
Id. at 863. “Once a court determines that a duty is owed by one party to another, it
becomes necessary to define the scope and extent of the duty. In other words, the
necessary complement of duty-the standard of care-must be ascertained.” Cerny, 628
N.W.2d at 703.
In the absence of statutes covering the operation and
management of airplanes at the time and place of an accident,
specifically applicable to the issue of negligence in the
operation thereof, the rules of law applicable to torts – the
ordinary rules of negligence and due care – obtain. Thus, the
rule of the common law that every person shall use ordinary
care not to injure another, that is, such care as the great mass
of mankind would use under the same or similar circumstances
or such care as the ordinarily prudent person would use under
the same or similar circumstances, applies. An aviator is
under no duty to use the highest degree of care that men of
reasonable diligence or foresight ordinarily exercise in the
operation of airplanes, but is bound only to use ordinary care,
although here, as in any other case, ordinary care differs under
the circumstances.
In re Kinsey’s Estate, 40 N.W.2d 526, 531-32 (Neb. 1949); see also Scarborough v.
Aeroservice, Inc., 53 N.W.2d 902, 909 (Neb. 1952).

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The parties have not provided a statute, regulation, or other ordinance that imposes
on the pilots the duty to check the oil cap prior to takeoff or immediately shut down the
engine upon illumination of the low oil pressure light. However, Jet Linx employees
testified to certain procedures pilots follow at Jet Linx. Specifically, Boatwright testified that
as part of the pre-flight inspection, the pilots “are required to check the oil quantity, which
requires removal of the oil cap and reinstallation.” See TR. 284:21 - 285:2. Kopp and
Smith also testified flight procedure requires the pilots to check the oil level and oil cap
security before takeoff. See TR. 400:18-25; 416:15-25; 417:1-4. With regard to shutting
down the engine when oil loss is indicated, Kopp testified there are no written procedures,
but when faced with loss of oil pressure, the pilots should “instantly” shut down the engine.
See TR. 405:7-12. Smith further testified if the low oil pressure light illuminates, standard
procedure would be to follow the appropriate checklist for the malfunction, which includes
shutting down the engine. See TR. 417:7-18. Smith testified it is not standard procedure
to call the director of maintenance when the low oil pressure light illuminates. See TR.
417:19-23. Lee Bellue testified if a pilot has zero oil pressure the pilot should immediately
shut down the engine. See TR. 126:15-20.
Therefore, in light of the testimony, the court finds Jet Linx’s pilots had a duty to
follow procedures in operating N789DJ by conducting a pre-flight inspection of the engine
and shutting down the engine upon illumination of the low oil pressure light.

b.

Breach

Once a legal duty is shown, the party alleging negligence must prove such duty was
breached. Martensen, 808 N.W.2d at 861-62. “[T]he ultimate determination of whether
a party deviated from the standard of care and was therefore negligent is a question of
fact.” Cerny, 628 N.W.2d at 704. “To resolve the issue, a finder of fact must determine
what conduct the standard of care would require under the particular circumstances
presented by the evidence and whether the conduct of the alleged tort-feasor conformed
with the standard.” Cingle v. Neb., 766 N.W.2d 381, 389 (Neb. 2009).
BLB argues Jet Linx’s internal documents, including the pilots’ statements, and Jet
Linx’s employees’ testimony demonstrate Jet Linx’s pilots’ negligence caused the oil loss
29

incident and resulting maintenance. See Filing No. 189 - Plaintiff’s Closing p. 34. BLB
argues Jet Linx’s disciplinary action of Clark after the oil loss incident is indicative of Clark’s
negligence wherein Kopp concluded “Clark and his associated Co-Pilot failed to ensure
proper security of the engine oil cap, and then failed to promptly shut the engine down
when low oil pressure was indicated.” Id. (quoting Ex. 3). Jet Linx argues the pilots’
statements establish the pilots followed procedure and, therefore, did not breach any duty.
See Filing No. 190 - Defendants’ Closing p. 41.
Boatwright, Kopp, and Smith all testified standard procedure required the pilots to
conduct a pre-flight inspection, which included checking and securing the oil cap.
According to Clark’s and Montanye’s statements, neither pilot inspected N789DJ’s engine
on the morning of February 20, 2008. See Ex. 1, 2. Clark’s Employee Disciplinary Report
Form, which Clark did not dispute for accuracy, confirms “the oil and oil cap security [were]
not checked on the day of the planned departure.” See Ex. 3. Therefore, Jet Linx’s pilots
breached their duty when the pilots failed to perform a pre-flight inspection of the engine
in accordance with standard procedure.
The evidence regarding the pilots’ actions after the engine lost oil pressure indicates
there were seconds of delay between the loss in oil pressure and the port-side engine shut
down. The pilots’ statements show once the low oil pressure light illuminated, Clark
informed Montanye, who then immediately called the flight control tower and Boatwright.
Ex. 1, 2. Montanye indicated to Boatwright the oil pressure dropped rapidly and asked
whether Clark and Montanye should shut down the engine. See TR. 280:7-11. Boatwright
told Montanye to “absolutely” shut down the engine. See TR. 280:13. The engine was not
shut down until after Boatwright’s instruction. TR. 280:12-22; 325:7-17. Boatwright
testified he told Montanye to shut down the engine because damage can occur to an
engine without oil pressure. See TR. 280:14-16.
According to Smith, the pilots should have shut down the engines once the oil
pressure light illuminated. See TR. 417:7-18. Kopp also testified the pilots should have
shut the engine down “instantly” as soon as there was low oil pressure. See TR. 405:7-23.
However, Kopp also testified there could be reasons for leaving the engine running
temporarily such as traffic or other circumstances. See TR. 403:23 - 404:6. Kopp testified
30

a pilot might need to exit the runway before shutting down the engine to get clear from
traffic. See TR. 397:1-10. Additionally, Kopp testified pilots have an obligation to follow
the flight tower’s instructions in a timely manner. See TR. 410:14-18. Boatwright testified,
according to the information he received, N789DJ was on an active runway and needed
to get off immediately. See TR. 288:14-17. By contrast, Lee Bellue testified under the
circumstances Jet Linx’s pilots were in, the pilots should have immediately shut down the
engine. See TR. 126:15-24. Lee Bellue testified once a controller provides a pilot with an
active runway, it is the pilot’s runway until the pilot can safely exit. See TR. 128:7-20.
In the Employee Disciplinary Report Form, Kopp noted Clark “failed to promptly shut
the engine down when low oil pressure was indicated.” See Ex. 3. Further, Kopp noted,
“[t]he lack of proper preflight and operational procedures in an abnormal situation caused
the need for engine removal and inspection as well as generator replacement due to oil
damage. This has resulted in significant avoidable expense to the company.”

Id.

Additionally, Clark was demoted, in part, due to “a delay in engine shutdown when low oil
pressure was indicated.” See Ex. 4.
In light of the evidence, the court concludes Jet Linx’s pilots breached their duty
when the pilots failed to promptly shut down the engine when the low oil pressure light
illuminated. The pilots’ own statements and the disciplinary reports establish Jet Linx’s
pilots failed to immediately shut down the engine pursuant to standard procedure. There
is no evidence of extenuating circumstances to show the pilots had reason to delay in
shutting down the engine. Although there is testimony the pilots are obligated to follow the
flight tower’s instructions, there is no indication the pilots were required to immediately
evacuate the runway to justify keeping the engine running. Therefore, Jet Linx’s pilots
breached their duty to follow procedures in operating N789DJ when the pilots failed to
immediately shut down the engine when the low oil pressure light illuminated.

c.

Cause

“A proximate cause is a cause that (1) produces a result in a natural and continuous
sequence and (2) without which the result would not have occurred.” Staley v. City of
Omaha, 713 N.W.2d 457, 466 (Neb. 2006). “A defendant’s conduct is a proximate cause
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of an event if the event would not have occurred but for that conduct, but it is not a
proximate cause if the event would have occurred without that conduct.” Worth v.
Kolbeck, 728 N.W.2d 282, 290 (Neb. 2007). The proximate cause does not have to be
the sole cause, but only a proximate cause. See Meyer v. State, 650 N.W.2d 459, 463
(Neb. 2002) (concluding “actions of a [party] be merely a proximate cause of the damage,
and not the sole proximate cause”).
The decrease in oil pressure caused the engine damage; however, there is no
evidence negligence caused the decrease in oil pressure. Although the pilots failed to
conduct a pre-flight inspection on February 20, 2008, there is no evidence this failure was
the “but for” cause of the decrease in oil pressure. The evidence does show that on
February 19, 2008, Clark checked N789DJ’s engine and “pulled the cap on the port engine
to find the oil in acceptable levels and replaced the cap and pushed the cap closing trigger
in the down position . . . .” See Ex. 1. Clark did not note the cap was loose or cracked.
Upon checking the engine after the decrease in oil pressure on February 20, 2008, Clark
noted the “oil fill cap on the port engine . . . is still in place, trigger down, but loose.” See
Ex. 1. Dallas Airmotive noted “the oil filler cap exhibited cracking in the top locking feature
of the assembly.” See Ex. 101. Dallas Airmotive concluded the probable cause of distress
was from “[l]oss of oil from the engine [due] to a loose filler cap during engine runs in the
field.” Id.
The aforementioned evidence establishes the pilots failed to inspect the engine
before takeoff on February 20, 2008, and there was a crack in the oil cap; however, the
evidence does not establish a causal link or a sequence of events which led to the
subsequent decrease in oil pressure. When the pilots inspected the engine on February
19, 2008, the pilots did not note an issue with the oil cap. There is no evidence to suggest
how the engine lost oil pressure between the time the pilots inspected the engine and the
time of the loss in oil pressure. Further, there is no evidence the engine lost oil pressure
because the pilots failed to conduct a pre-flight inspection on February 20, 2008.
Therefore, the pilots’ failure to conduct a pre-flight inspection on February 20, 2008, is not
the “but for” cause of the decrease in oil pressure.

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In addition to the court’s finding negligence did not cause the decrease in oil
pressure, the court also finds the pilots’ delay in shutting down the engine did not cause
the engine damage. There is no evidence the delay in shutting down the engine increased
the severity of the engine damage. In fact, once Montanye observed the low oil pressure
light illuminated, she noted the oil pressure gauge already read zero. See Ex. 2. This
suggests the damage to the engine had already occurred, thus the delay in shutting down
the engine did not cause additional damage. Although the pilots’ and Boatwright’s
statements establish the pilots delayed in shutting down the engine, the evidence does not
establish a causal link between the pilots’ delay in shutting down the engine and the
subsequent damages due to the decrease in oil pressure.
Jet Linx’s pilots did not negligently cause the decrease in oil pressure which resulted
in substantial damages to N789DJ’s engine on February 20, 2008. The MSA provides, in
the absence of Jet Linx’s negligence, BLB is required to reimburse Jet Linx for
maintenance on N789DJ. According to Jet Linx, the invoiced amount began accruing
interest as of January 20, 2009. See Filing No. 152 - Statement of Jet Linx’s Damages.
Therefore, with interest accruing until January 24, 2012, Jet Linx asserts the amount due
is $240,972.84.

Id.

“Prejudgment interest . . . is recoverable when the claim is

liquidated . . . .” Countryside Co-op. v. Harry A. Koch Co., 790 N.W.2d 873, 889 (Neb.
2010). However, “[w]here reasonable controversy exists as to the plaintiff’s right to recover
or as to the amount of such a recovery, the claim is considered to be unliquidated and
prejudgment interest is not allowed.” Langel Chevrolet-Cadillac, Inc. v. Midwest Bridge
& Const. Co., 329 N.W.2d 97, 101 (Neb. 1983). BLB reasonably disputed Jet Linx’s right
to recover. As such, Jet Linx’s claim is unliquidated and prejudgment interest is not
recoverable. Therefore, BLB is required to reimburse Jet Linx $158,014.98.

33

IT IS ORDERED:
1.

Judgment will be granted in favor of BLB and against Jet Linx for breach of

contract in the amount of $141,400 for unpaid lease payments and in the amount of
$22,553.17 for overpaid maintenance costs. Judgment will be granted in favor of the
defendants and against the plaintiff on the plaintiff’s remaining claims.
2.

Judgment will be granted in favor of Jet Linx and against BLB for breach of

contract in the amount of $158,014.98 for maintenance costs resulting from the oil loss
incident.
3.

The defendants’ oral motion for judgment as a matter of law is denied.

DATED this 27th day of September, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
34