Frontline Processing Corp. v. First State Bank of Eldorado

FILED
UNITED STATES COURT OF APPEALS OCT 05 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
FRONTLINE PROCESSING CORP., a No. 08-35879
Nevada corporation,
D.C. No. CV 01-00074-RFC
Plaintiff-counter-defendant - District of Montana,
Appellee, Butte
v.
ORDER AMENDING
FIRST STATE BANK OF ELDORADO, MEMORANDUM DISPOSITION
ELDORADO, ILLINOIS, an Illionois AND DENYING PETITION FOR
corporation, REHEARING
Defendant-counter-claimant -
Appellant,
v.
LMA UNDERWRITING AGENCY,
INC.; CHRISTOPHER L. KITTLER,
Third-party-defendants -
Appellees.
FRONTLINE PROCESSING CORP., a No. 09-35166
Nevada corporation,
D.C. No. CV 01-00074-BU-RFC
Plaintiff-counter-defendant -
Appellant,
v.
FIRST STATE BANK OF ELDORADO,
ELDORADO, ILLINOIS, an Illinois
corporation,
Defendant-counter-claimant -
Appellee,
v.
LMA UNDERWRITING AGENCY,
INC.; CHRISTOPHER L. KITTLER,
Third-party-defendants -
Appellants.
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Appellant’s Motion for Leave to File a Reply in Support of Petition for
Rehearing is GRANTED. The reply tendered September 15, 2010, is ordered filed.
The memorandum disposition filed July 30, 2010, is amended as follows:
On page 4, replace the first full paragraph with:
We review for clear error a district court’s factual findings.
Bertelsen v. Harris, 537 F.3d 1047, 1056 (9th Cir. 2008). Defendant
argues that $160,000 of the Count IIA award is duplicative of the
Count IV award requiring payment of "the Wade Cook reserve
money, plus interest." The district court’s findings of fact show that
Defendant twice deducted from Plaintiff’s income "$80,000 going to
reserve." The district court specified neither which funds comprised
the Wade Cook Reserve nor which reserve account received the two
$80,000 deductions. Because the district court’s award and findings
of fact are ambiguous, we remand to the district court to determine
whether the $160,000 was awarded under either Count IIA or Count
IV, or both.
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On page 13, replace the last paragraph with:
AFFIRMED in part, and REMANDED in part with instructions
to dismiss Defendant’s indemnification counterclaims without
prejudice and to clarify the award under Count IIA and Count IV.
With these amendments, the petition for panel rehearing is DENIED. No
further petitions for rehearing or for rehearing en banc may be filed.
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