Society Natl. Bank v. Parsow Partnership ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 96-3695
_____________
Society National Bank, a National *
Banking Association, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Parsow Partnership, Ltd., a Nebraska *
limited partnership; Alan S. Parsow, *
*
Appellants. *
_____________
Submitted: May 22, 1997
Filed: August 11, 1997
_____________
Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
_____________
BOWMAN, Circuit Judge.
Society National Bank ("Society") served as the subscription and distribution
agent in connection with a securities offering. In the course of the offering, Society
mistakenly issued 28,750 shares and warrants to Alan Parsow and his investment
partnership, Parsow Partnership, Ltd. (collectively "Parsow"), who, in turn, paid the
subscription price of $230,000 for these securities. Based on a determination of mutual
mistake, the District Court1 rescinded the transaction and ordered Parsow to return the
securities and Society to refund the purchase price. Additionally, Parsow was awarded
interest at the statutory rate of six percent per annum for the period beginning on the
date the offering closed and ending on the date Society first advised Parsow of the
mistake and offered to rescind the transaction. On appeal, Parsow challenges only the
interest component of the District Court's decision. We affirm.
Because the District Court's determination that the purchase and sale of the
securities in question resulted from the parties' mutual mistake has not been appealed,
we forego a detailed recitation of the circumstances in which the mutual mistake
occurred. Instead, we turn directly to Parsow's arguments that he has been
undercompensated by the District Court's award of interest.
As part of its remedy, the District Court awarded Parsow interest, pursuant to
Neb. Rev. Stat. § 45-102 (1993), at the rate of six percent per annum on the principal
sum of $230,000 for the period from January 27, 1993 (the date the rights offering
closed) to June 9, 1993 (the date of a letter whereby Society first informed Parsow of
the mistake and offered to rescind the transaction). The court reasoned that from
June 9, 1993 forward, any loss in interest resulting from the $230,000 outlay should
rest with Parsow and not with Society. If Parsow had accepted Society's June 9, 1993
offer of rescission, then Parsow would have had the $230,000 back and could have
invested it as he saw fit, while still retaining the option to seek to recover from Society
any additional amount he believed he was owed.
Parsow argues that the District Court erred in failing to award him interest on the
$230,000 from June 9, 1993 through the date of the court's judgment. Moreover,
1
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
-2-
Parsow argues that he is entitled to statutory interest at the rate of twelve percent per
annum pursuant to Neb. Rev. Stat. § 45-104 (1993).
In a federal diversity action, the law of the state where the cause of action arises
governs the award of prejudgment interest. See Fremont Nat'l Bank & Trust Co. v.
Collateral Control Corp., 724 F.2d 1410, 1415 (8th Cir. 1983). Under Nebraska law,
a trial court's decision to award interest as part of an equitable remedy is reviewed for
abuse of discretion. See Newton v. Brown, 386 N.W.2d 424, 432 (Neb. 1986).
"'[I]nterest is sometimes allowed by courts of equity, in the exercise of a
sound discretion, when it would not be recoverable at law. These courts,
it has been said, will, in their discretion, allow or withhold interest as,
under all the circumstances of the case, seems equitable and just, except
in cases where interest is recoverable as a matter of right.'"
Id. (quoting Mid-States Equip. Co. v. Poehling, 285 N.W.2d 689, 691-92 (Neb. 1979)
(further citation omitted)). Parsow argues that because a rescission, such as was sought
in this case, does not become effective until a court so decrees, the June 9, 1993 letter
from Society did not act to rescind the securities transaction; therefore, the letter should
not mark the point at which interest on the $230,000 ceases to accrue. Additionally,
he argues, notice, such as that provided to Parsow by Society's letter, is of no legal
significance in a case in equity where rescission is the remedy sought.
Parsow's arguments concerning the unique nature of equitable claims for
rescission miss the point. While rescission in such cases is not effective until a court
so decrees, see Kracl v. Loseke, 461 N.W.2d 67, 73 (Neb. 1990), Parsow's focus on
the timing of the rescission fails to consider adequately the broader notions of fairness
and equity that the District Court considered. "'Interest is not recovered according to
a rigid theory of compensation for money withheld, but is given in response to
considerations of fairness; it is denied when its exaction would be inequitable.'"
-3-
Newton, 386 N.W.2d at 432 (quoting 47 C.J.S. Interest & Usury § 6, at 28 (1982)); see
also Welch v. Welch, 519 N.W.2d 262, 274 (Neb. 1994) (stating that court of equity
has discretion to award interest when it is "reasonable and just"). As Parsow's counsel
conceded at oral argument, June 9, 1993 marked the time at which both Society and
Parsow realized that a mistake had been made. Although Parsow took the position that
the mistake was Society's alone, the District Court rejected that position. Given the
unappealed determination of mutual mistake, we cannot say that the District Court
abused its discretion by treating Parsow's decision to withhold the shares after learning
of the mistake as shifting the equities against an award of interest on the $230,000 from
June 9, 1993 forward. In evaluating the equities of the situation, the appreciation of the
securities while Parsow held them is of no moment, because he was never entitled to
ownership. Similarly misplaced is Parsow's argument that notice of putative grounds
for rescission before suit is unnecessary and thus that Society's letter is of no legal
consequence. While such prior notice is neither a prerequisite to a suit nor sufficient
to effectuate a rescission, see Haumont v. Security State Bank, 374 N.W.2d 2, 7 (Neb.
1985), notice such as that provided by Society's letter, carefully explaining the
existence of a perceived mutual mistake, surely qualifies as one of the "'circumstances
of the case'" that determines whether an award of interest "'seems equitable and just.'"
Newton, 386 N.W.2d at 432 (quoting Mid-States Equip. Co., 285 N.W.2d at 692).
Parsow also challenges the rate of the interest awarded. The District Court
awarded interest at the rate of six percent per annum pursuant to Neb. Rev. Stat. § 45-
102 (1993). Parsow argues that he is entitled to interest at the rate of twelve percent
per annum pursuant to Neb. Rev. Stat. § 45-104 (1993). Determination of the
appropriate statutory rate of interest is purely a question of law, which we review de
novo. See Peterson v. Abbott (In re Estate of Peterson), 433 N.W.2d 500, 501 (Neb.
1988). Section 45-102, entitled "Interest; legal rate; exception," provides: "Interest
upon the loan or forbearance of money, goods or things in action shall be at the rate of
. . . six percent per annum . . . on the unpaid principal balance, unless a greater rate . . .
-4-
be contracted for by the parties." Section 45-104, entitled "Interest; other contract
obligations," provides:
Unless otherwise agreed, interest shall be allowed at the rate of twelve
percent per annum on money due on any instrument in writing, or on
settlement of the account from the day the balance shall be agreed upon,
on money received to the use of another and retained without the owner's
consent, express or implied, from the receipt thereof, and on money
loaned or due and withheld by unreasonable delay of payment.
We are not convinced that either statute is applicable to the case at hand. Cf.
Lienemann v. State Farm Mut. Auto Fire & Cas. Co., 540 F.2d 333, 343 (8th Cir.
1976) (holding § 45-104 inapplicable where "the action lies in tort rather than in
contract"); In re Estate of Peterson, 433 N.W.2d at 502 (holding § 45-102 inapplicable
because "[a] devise under a will is neither a loan nor a forbearance"); I.P. Homeowners,
Inc. v. Radtke, 558 N.W.2d 582, 593 (Neb. Ct. App. 1997) (noting that § 45-104
"allows for interest on certain contractual obligations," but does not provide for interest
on property held in constructive trust). Because this case more closely fits within the
parameters of § 45-102, however, we agree with the District Court's decision to apply
an interest rate of six percent per annum. Cf. Priest v. Priest, 554 N.W.2d 792, 797
(Neb. 1996) (upholding decision to award husband eight percent interest on a deferred
marital property distribution, even though no statute provided for payment of interest
in such a case).
The judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-