United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on the Jury Verdict (Filing No.
274) and plaintiff Estate of Joyce Rosamond Petersen's
(the “estate”) Motion to Dismiss (Filing No. 266)
defendant John L. Henry (“Henry”).
Rosamond Petersen (“Petersen”), a long-time
resident of Omaha, Nebraska, met William E. Bitters
(“Bitters”), a financial advisor based out of
Sioux City, Iowa, in 2006. Bitters sold several financial
products to Petersen over the years, and, in 2008, prepared a
promissory note for a $150, 000 unsecured loan from Petersen
to Henry. Henry never repaid the loan, and Petersen died on
October 20, 2013.
December 1, 2014, the estate filed suit against Bitters and
Henry for damages arising out of the unpaid
loan. At trial, the jury was instructed on the estate's
claim against Henry for breach of contract, and the
estate's timely claims against Bitters for fraudulent
misrepresentation and breach of fiduciary duty. The jury found in
favor of the estate against Henry and calculated the
estate's damages to be $356, 619.30. The jury also found
in favor of the estate against Bitters and calculated the
estate's damages for those claims to be $356,
the trial, the Court discovered the estate had an undisclosed
settlement agreement with Henry. The settlement agreement
provided for the dismissal of the estate's case after
trial against Henry in exchange for Henry's
“truthful” testimony on certain specified topics.
After the Court instructed and submitted the matter to the
jury, the estate moved to dismiss the case against Henry.
See Fed. R. Civ. 41(a)(2). The Court took that
motion under advisement while expressing concern about the
estate's gamesmanship, given the settlement agreement
with Henry and the timing of the motion.
Nebraska, “a party may not have double recovery for a
single injury.” Tolliver v. Visiting Nurse
Ass'n, 771 N.W.2d 908, 917 (Neb. 2009). “Where
several claims are asserted against several parties for
redress of the same injury, only one satisfaction can be
had.” Jameson v. Liquid Controls Corp., 618
N.W.2d 637, 644 (Neb. 2000) (quoting Vowers & Sons v.
Strasheim, 576 N.W.2d 817, 825 (Neb. 1998).
each of the estate's claims, the Court instructed the
jury that the estate “may recover such damages as will
put the [estate] in the same position the [estate] would have
occupied if” the alleged misconduct had not occurred.
The jury determined those damages were the same for each
defendant and were equal to the estate's calculations of
the current amount owed under the contract. It is beyond
debate that the only damages awarded by the jury were the
amount of the original note plus the interest rates set forth
in the note, through the end of trial. The estate is not
entitled to double that amount.
Nebraska tort law, “[w]here two causes produce a single
indivisible injury, joint and several liability attaches.
Shipler v. GMC, 710 N.W.2d 807, 843 (Neb. 2006);
accord Tadros v. City of Omaha, 735 N.W.2d 377, 381
(Neb. 2007) (“Under Nebraska common law, an act
wrongfully done . . . contemporaneously by [several persons]
without concert, renders them liable for all damages . . .
jointly and severally.”). Although the remaining claim
against Henry was for breach of contract (the promissory
note) and not a tort, the Court predicts the Nebraska Supreme
Court would apply joint and several liability in these
circumstances. See Lindsay Mfg. Co. v. Hartford Accident
& Indem. Co., 118 F.3d 1263, 1267-68 (8th Cir.
though Bitters and Henry were held responsible by the jury
for the estate's failure to receive repayment of the
loan, the estate cannot recover the full amount due from
both. See Walker v. Probant, 902 N.W.2d 468, 482
(Neb.App. 2017) (“FSB is not allowed double recovery
from multiple defendants for the same claim as to the note,
and therefore, Raynor is liable only for the amount remaining
on the note after subtraction of the amounts FSB received
from the settling defendants.”). Thus, Bitters and
Henry are jointly and severally liable to the estate for
Motion to Dismiss
the timing of the estate's motion, the estate's
action against Henry “may be dismissed at the
[estate]'s request only by court order, on terms that the
court considers proper.” Fed.R.Civ.P. 41(a)(2). Because
the motion was filed after the jury began deliberations (and
for the reasons stated above and during the ...