First State Bank of Floodwood v. Jubie

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No. 95-2112
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First State Bank of Floodwood; *
Floodwood Agency, Inc.; John F. *
Schilling; William J. Gravelle; *
Joseph Bullyan; Eugene J. *
Stowell, *
*
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Jerry J. Jubie; Irene M. Jubie; *
Janine I. Suonvieri; Kirk M. *
Suonvieri; Todd Jubie; Thomas *
Jubie, Kathie Jubie; Timothy *
Jubie, *
*
Defendants - Appellees. *
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Submitted: December 11, 1995
Filed: June 7, 1996
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Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER,* District Judge.
___________
LOKEN, Circuit Judge.
John Schilling, William Gravelle, Joseph Bullyan, and Eugene Stowell
acquired the First State Bank of Floodwood, Minnesota (the "Bank"), from
Jerry and Irene Jubie by purchasing their stock in a holding company,
Floodwood Agency, Inc. (the "Agency"). Extensive litigation has ensued.
In this case, the individual purchasers,
*
The HONORABLE WILLIAM W. SCHWARZER, United States
District Judge for the Northern District of California,
sitting by designation.
the Bank, and the Agency (collectively, the "Purchasers") sued the Jubies,
asserting contract claims and common law and statutory fraud claims arising
out of allegedly undisclosed bad loans, insider loans, and other financial
problems that have plagued the Bank since its purchase. The Jubies
counterclaimed for breach of Jerry Jubie's Retirement Agreement with the
Bank. Following a lengthy trial, the jury returned a special verdict
awarding the Purchasers $106,218 on some of their claims, awarding them no
damages on their claims under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), rejecting their
remaining claims, and awarding the Jubies $292,947 on their Retirement
Agreement counterclaim. The district court1 entered judgment on the jury
verdict, denied the Purchasers' post-trial motions, and awarded them
$45,000 in attorney's fees under state law. The Purchasers appeal the
damage and fee awards. We modify the Retirement Agreement award and
otherwise affirm.
I. Background.
Jerry Jubie was President and Chairman of the Board of the Bank for
nearly twenty years. His wife Irene served as Secretary. They owned all
the Agency's stock, thereby controlling some 95% of the Bank's outstanding
stock. By early 1987, the Bank was in trouble and Jerry Jubie was in poor
health. The Bank's federal regulator, the Federal Deposit Insurance
Corporation (FDIC), was investigating its financial soundness and
management quality.
In March 1987, the Bank's board of directors rewarded Jerry Jubie's
long tenure with a Retirement Agreement, promising retirement payments of
$1500 per month for life commencing October 1987, plus continuing group
life and health insurance benefits.
1
The HONORABLE RAYMOND L. ERICKSON, United States Magistrate
Judge for the District of Minnesota, who tried the case by consent
of the parties. See 28 U.S.C. § 636(c).
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The Agreement was intended to pave the way for a management change and sale
of the Bank. On October 9, 1987, Jerry and Irene Jubie as sellers and
Schilling and Gravelle as buyers entered into a Purchase Agreement
providing that, at the end of that month, buyers would purchase the
Agency's stock at a price equal to 95% of the book value of the Bank's
stock, subject to regulatory approvals. The Purchase Agreement granted
buyers "access to all bank records." It provided that the Retirement
Agreement "shall remain in full force and binding on the bank," subject to
specific modifications, such as a provision that, after the sale, Jubie
would reimburse the Bank for the cost of his group life and health
insurance.
Regulatory approvals proved to be a problem. On November 30, Jerry
Jubie agreed to entry of an FDIC order prohibiting him from serving as a
director or officer of any bank without FDIC approval. The FDIC issued
this order on February 4, 1988, effective ten days later. More
significantly, on February 1, 1988, the FDIC issued a fifteen-page cease
and desist Order against the Bank, imposing onerous management, equity
capital, loan collection, and bad loan charge-off restrictions. At this
time, the Jubies still owned the Bank, but the buyers held two positions
on its board of directors.
On July 28, 1988, an Addendum to the Purchase Agreement was signed
by the Jubies and by all four individual purchasers fixing the purchase
price at $528,582, based upon 95% of the book value of the Bank's stock at
closing. The Jubies now guaranteed portions of four troubled loans to
outsiders, and made specific guarantees regarding numerous outstanding
loans to members of the Jubie family. All of these guarantees were secured
by the payments owed Jubie under the Retirement Agreement. With this
Addendum in place, the Purchase Agreement closed on August 9, 1988.
Some months after the purchase, the buyers commenced an internal
investigation at the Bank and allegedly discovered many bad loans,
concealed losses, and other irregular transactions.
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Shortly thereafter, the Bank ceased making payments under the Retirement
Agreement. The Purchasers then commenced this action, alleging, in
essence, that the Jubies had criminally mismanaged the Bank and then had
"cooked" the Bank's books at closing, concealing numerous insider and other
bad loans. Claiming some $350,000 in damages, the Purchasers asserted
causes of action for breach of contract, breach of fiduciary duty, common
law fraud, state and federal statutory fraud, and violations of RICO. The
Jubies counterclaimed for breach of the Retirement Agreement.
The case was submitted to the jury with an extensive special verdict
form. The jury found that the Jubies breached fiduciary duties to the
Bank, breached the Purchase Agreement, and violated two Minnesota statutes,
Minn. Stat. § 80A.01 (fraud in connection with the sale of securities) and
Minn. Stat. § 325F.69 (consumer fraud). It awarded damages of $106,218 on
these claims. The jury also found RICO violations but awarded no damages
on the RICO claims. It found that the Jubies had not violated S.E.C. Rule
10b-5 nor committed common law fraud. Finally, the jury awarded the Jubies
$292,947 in present and future damages on their Retirement Agreement
counterclaim. The district court then awarded the Purchasers $45,000 in
attorney's fees under the Minnesota fraud statutes, denied all other post-
trial motions, and entered judgment on the jury's verdict. Only the
Purchasers appeal.
II. The Purchasers' Claims.
The Purchasers first argue that they are entitled to judgment as a
matter of law or a new trial on the issue of RICO damages. They rely upon
Rosario v. Livaditis, 963 F.2d 1013, 1020-21 (7th Cir. 1992), cert. denied,
506 U.S. 1051 (1993). In that case, a jury awarded $600,000 damages for
violations of the Illinois Consumer Fraud Act but zero damages for RICO
violations that were "supported by identical facts," 963 F.2d at 1021.
Because of the complete factual overlap, the Seventh Circuit reversed the
verdict
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as contrary to law and remanded for a new trial on RICO damages. Accord
Video Int'l Prod., Inc. v. Warner-Amex Cable Commun., Inc., 858 F.2d 1075,
1085-86 (5th Cir 1988), cert. denied, 490 U.S. 1047, and 491 U.S. 906
(1989).
This case is very different. The Purchasers presented a multitude
of claims covering a wide variety of transactions. The jury made specific
findings that the Jubies' RICO violations did not proximately cause the
Purchasers damage. Our standard of review is clear: "Where there is a
view of the case that makes the jury's answers to special interrogatories
consistent, they must be resolved that way." Atlantic & Gulf Stevedores,
Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962). See also Transport
Ins. Co. v. Chrysler Corp., 71 F.3d 720, 722-23 (8th Cir. 1995).
Like the district court, we have no difficulty reconciling the jury's
verdict on RICO damages with the evidence and its other findings. The jury
found that the Jubies breached fiduciary duties and violated RICO while
they were in control of the Bank. Indeed, the FDIC's regulatory findings
strongly suggested that Jerry Jubie had seriously mismanaged the Bank. But
the jury also rejected the Purchasers' common law fraud and 10b-5 claims,
which required a finding of reasonable reliance by the Bank's subsequent
purchasers. Consistent with these findings, the jurors doubtless concluded
that pre-purchase RICO violations did not proximately cause damage to those
who purchased the Bank because, with many months of pre-purchase access to
the Bank's books and records and knowledge of the FDIC cease and desist
Order, they should have known of this misconduct and adjusted the purchase
price accordingly.
The Purchasers next argue that they deserve a new trial because the
jury's damage award was grossly inadequate. "Inadequacy of a verdict is
a matter for the trial court, and we will not reverse a verdict on these
grounds unless there has been plain injustice or a monstrous or shocking
result." Ford v. El
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Dorado & Wesson R.R., 848 F.2d 911, 914 (8th Cir. 1988). After careful
review of the record, we conclude that the Purchasers cannot meet this
rigorous standard. Virtually every aspect of this complex case was hotly
contested at trial, particularly the Purchasers' damage claims that the
Jubies successfully concealed numerous fraudulent or otherwise unsound pre-
purchase transactions. The jury accepted some of these contentions and
rejected others, as the conflicting evidence permitted. We agree with the
district court that substantial evidence supports the verdict and a new
trial is not required to prevent a miscarriage of justice.
III. The Jubies' Counterclaim.
The Purchasers launch many attacks on the Jubies' substantial
recovery under the Retirement Agreement. One is sound; the rest require
little discussion. They first argue that the district court erred in
refusing to void the Retirement Agreement because of the Jubies' statutory
fraud and RICO violations. The district court rejected this contention
because the Purchasers did not seek to rescind the Purchase Agreement.
Instead, they affirmed the transaction, including the Bank's obligations
under the Retirement Agreement, and sued to recover the benefit of their
bargain. We agree. See, e.g., Restatement of Contracts 2d § 380(2)
(1981).
The Purchasers alternatively argue that their performance under the
Retirement Agreement is excused by the jury's findings that the Jubies
breached the Purchase Agreement. The district court rejected this "novel
theory" on the ground that the Purchasers, having affirmed the contract,
"are in no better position than the [Jubies] to be excused from the
performance of their remaining contractual obligations." Again, we agree.
Though specifically ratified in the Purchase Agreement, the Retirement
Agreement was an independent covenant which the Jubies may enforce at the
same time the Purchasers obtain the full benefit of their bargain under the
Purchase Agreement. See 17A C.J.S. Contracts
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§§ 344, 453 at 331-33, 571-72; McNeal-Edwards Co. v. Frank L. Young Co.,
51 F.2d 699, 701 (1st Cir. 1931). The Purchasers' further contention that
they did not breach the Retirement Agreement by ceasing to make monthly
retirement payments flies in the face of the trial evidence construed in
favor of the jury's verdict.
That brings us to the most difficult issue in the case, whether the
Jubies may recover lump-sum future damages under a Retirement Agreement
that contains no acceleration clause. Historically, contracts for
installment payments of money have been excluded from the general rule that
anticipatory repudiation of a contract permits the aggrieved party to sue
for damages resulting from future as well as past non-performance. As the
Supreme Court said in Roehm v. Horst, 178 U.S. 1, 17-18 (1900):
In the case of an ordinary money contract, such as a promissory
note, or a bond, the consideration has passed; there are no
mutual obligations; and cases of that sort do not fall within
the reason of the [anticipatory repudiation] rule. . . .
[M]oney contracts, pure and simple, stand on a different
footing from executory contracts for the purchase and sale of
goods . . . .
This principle is recognized in the Restatement of Contracts 2d
§ 243(3). While some jurisdictions may have abandoned it, Minnesota has
not. In Palmer v. Watson Constr. Co., 121 N.W.2d 62, 67 (Minn. 1963), the
Minnesota Supreme Court declared, "We are committed in this state . . . to
the rule that nonpayment of installment obligations is not in and of itself
such prevention of performance as will make possible suit for loss of
profits." In
Sheet Metal Workers Local No. 76 Credit Union v. Hufnagle, 295 N.W.2d 259,
263 (Minn. 1980), after quoting the above portion of Palmer, the Court said
that perhaps "the exclusion of installment payment obligations from the
anticipatory breach doctrine should be reconsidered," but it declined to
reach that issue because there had been no unequivocal repudiation of the
promissory note in question, and because Minnesota law, including Uniform
Commercial
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Code § 1-208, allows a creditor to solve "the problem created by the
exclusion of installment payment contracts" from the anticipatory
repudiation doctrine by including an acceleration clause in the installment
payment contract.
In meeting our obligation under Erie to predict the development of
Minnesota law, the temptation is to approach this issue in formulaic terms
-- would the Minnesota Supreme Court now apply the anticipatory repudiation
doctrine to all types of contracts, or would it continue to recognize an
exception for installment payment contracts. However, we think that
greater light is shed on the issue by taking Justice Cardozo's rather
different approach in the pre-Erie case of New York Life Ins. Co. v.
Viglas, 297 U.S. 672, 679-81 (1936):
There may be times when justice requires that irrespective of
repudiation or abandonment the sufferer from the breach shall
be relieved of a duty to treat the contract as subsisting or to
hold himself in readiness to perform it in the future.
Generally this is so where the contract is a bilateral one with
continuing obligations, as where a manufacturer has undertaken
to deliver merchandise in instalments. . . . On the other hand,
a party to a contract who has no longer any obligation of
performance on his side but is in the position of an annuitant
or a creditor exacting payment from a debtor, may be compelled
to wait for the instalments as they severally mature, just as
a landlord may not accelerate the rent for the residue of the
term because the rent is in default for a month or for a year.
. . . The root of any valid distinction is not in the
difference between money and merchandise or . . . services.
What counts decisively is the relation between the maintenance
of the contract and the frustration of the ends it was expected
to subserve. The ascertainment of this relation calls for
something more than the mechanical application of a uniform
formula.
(citations omitted). We read the Minnesota Supreme Court's discussion in
Hufnagle as signaling that it would follow this more discriminating
approach to the future damages issue in this case.
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Under this approach, we conclude that the award of future damages
cannot stand. The Retirement Agreement granted Jerry Jubie monthly
payments for life as a mechanism to induce his retirement from active
management and to promote sale of the Bank, as the FDIC was no doubt
urging. The Bank stopped making monthly payments not because of insolvency
or other impossibility, but because the Purchasers believed that Jubie's
misconduct disentitled him to further retirement benefits. The Purchasers
were wrong, and the Bank therefore owes Jubie all unpaid installments, with
prejudgment interest.2 But the Bank is not disabled from meeting its
future Retirement Agreement obligations. And replacing fixed monthly
future obligations with a large lump-sum judgment will adversely impact a
struggling financial institution and seems entirely contrary to the
original purposes of the Retirement Agreement. Finally, any risk of
multiple lawsuits can be reduced, if not eliminated, by a judgment that
declares valid, or even specifically enforces, future installment
obligations. See 4 Corbin on Contracts § 969, at 893; Restatement of
Contracts 2d §§ 243 comment d, 359(2) & comment b.
IV. Attorney's Fees.
Finally, the Purchasers argue that the district court's $45,000
attorney's fee award for the Minnesota statutory violations is inadequate.3
Based upon specific findings, the court awarded only a portion of the
requested $159,820.25 in fees and $13,888.69 in costs because: 1) the
Purchasers enjoyed only limited success;
2
The Purchasers also argue that any award under the Retirement
Agreement is subject to offsets under the Jubies' bad loan
guarantees in the Purchase Agreement. We disagree. Given the
claims pursued by the Purchasers in this lawsuit, the jury's damage
award in their favor finally resolved all past and future claims
relating to the guarantees in the Purchase Agreement.
3
The Purchasers are not entitled to a fee award under RICO
because the jury found no injury. See 18 U.S.C. § 1964(c); Farrar
v. Hobby, 113 S. Ct. 566, 573-74 (1992).
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2) they submitted inadequate billing records that did not break out time
spent defending the Jubies' counterclaim; and 3) there was unnecessary and
redundant billing.
In awarding fees under these statutes, Minnesota courts consider the
results obtained critical to the award, particularly where a party has
prevailed only on some claims or has been awarded only a fraction of the
desired relief. Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 542
(Minn. 1986), citing Hensley v. Eckerhart, 461 U.S. 424, 434-36 (1983).
Fee requests are also reduced for "hours not reasonably expended."
Specialized Tours, 392 N.W. at 542, citing Hensley. Having carefully
reviewed the record and the district court's detailed reasons for reducing
the fee award in light of the Purchasers' limited success, we conclude that
the fee award was not an abuse of discretion.
V. Conclusion.
The portion of the district court's judgment awarding damages on the
Retirement Agreement counterclaim is reversed and the case is remanded with
directions to enter an amended judgment awarding compensatory damages
(including interest) for all past-due installments plus an appropriate
decree regarding future retirement installment obligations. The judgment
of the district court is in all other respects affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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