United States Court of Appeals

For the Eighth Circuit

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No. 18-3596

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Estate of Joyce Rosamond Petersen, Deceased

lllllllllllllllllllllPlaintiff - Appellee

v.

William E. Bitters, doing business as United Financial Information Services, doing

business as United Financial Services

lllllllllllllllllllllDefendant - Appellant

John L. Henry

lllllllllllllllllllllDefendant

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No. 18-3600

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 Estate of Joyce Rosamond Petersen, Deceased

lllllllllllllllllllllPlaintiff - Appellant

v.

Robert W. Boland, Jr.; William E. Bitters; John L. Henry

lllllllllllllllllllllDefendants - Appellees

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Appeals from United States District Court 
for the District of Nebraska - Omaha

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 Submitted: November 14, 2019

Filed: April 3, 2020

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Before GRUENDER, KELLY, and ERICKSON, Circuit Judges. 

____________

KELLY, Circuit Judge.

This action stems from an unpaid loan. After a seven-day jury trial, the district

court1

 entered a $356,619.30 judgment in favor of the estate of Joyce Rosamond

Petersen and against William E. Bitters and John L. Henry. The estate and Bitters

filed these cross-appeals challenging various rulings by the district court. We affirm.

I. Background

William E. Bitters was a financial advisor to Joyce Petersen and her husband

for many years. He advised Petersen to withdraw $150,000 from her annuities and

to loan it to another client of his named John L. Henry. Petersen followed this advice

and, in February 2008, she made Henry a 12-month, $150,000 loan, with the option

of a one-time renewal. Henry promised to repay the loan plus 11% interest

compounded on an annual basis. However, he never made any payments.

Petersen passed away in October 2013, and her estate filed this lawsuit on

December 1, 2014. The estate’s amended complaint asserted ten claims against

Henry, Bitters, and Robert Boland, who the estate alleged was “jointly and severally

1The Honorable Robert F. Rossiter, United States District Judge for the District

of Nebraska.

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liable for Bitters’s misconduct” as Bitters’s business partner. The district court

dismissed several of the claims against Henry and Bitters before trial. It also granted

summary judgment to Boland, finding no evidence of a partnership between him and

Bitters. After these rulings, the only claims that remained for trial were claims

against Henry and Bitters for fraud, breach of contract, and breach of the implied duty

of good faith and fair dealing, and claims against Bitters for breach of fiduciary duty

and negligence.

During the trial, Bitters discovered that the estate had agreed to dismiss Henry

from the lawsuit in exchange for $1 and his “truthful” testimony at trial. Bitters

moved for a mistrial. The district court stated that it was “very, very concerned”

about the undisclosed agreement, and it allowed the agreement to be admitted into

evidence and used to cross-examine Henry. However, the district court denied the

motion for a mistrial, reasoning that Bitters had not been prejudiced by Henry’s

participation in the case and that cross-examination was an effective remedy.

At trial, Petersen’s children testified that Petersen and Bitters exchanged

approximately 150 phone calls between 2009 and 2013. During these conversations,

Petersen asked Bitters when the loan would be repaid and Bitters responded that “he

was still working with Mr. Henry and that he was concerned that if [Petersen] pushed

too much or put too much pressure on him that Mr. Henry would claim bankruptcy

and that she wouldn’t get anything.” Petersen’s accountant similarly testified that,

in April 2013, Bitters told her that “he was trying to collect the finances from Mr.

Henry and that if he put too much pressure on Mr. Henry . . . Mr. Henry would file

for bankruptcy and [Petersen] would not receive any money.” Clarence and Valora

Nelson also testified that Bitters advised them to loan $200,000 to Henry around the

same time as Petersen. Their loan also was never repaid.

Henry testified that Bitters tried to sell him a life-insurance policy in 2008. 

Henry initially rejected the policy, and Bitters asked whether he would reconsider if

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Bitters “could secure the funds . . . through [a] private individual.” Henry agreed, and

Bitters secured the $150,000 loan from Petersen. Henry testified that, about a year

later, he decided not to renew the life-insurance policy and to repay the note, but

Bitters ultimately convinced him to extend the note rather than repay it and to use the

money to renew the policy. Henry testified that he did not have any contact with

Bitters after 2009, and that Bitters never asked him about repaying the note.

Bitters conceded that he advised Petersen to make the loan to Henry and that

he sold Henry a life-insurance policy, for which Bitters received a 25% commission. 

But Bitters denied ever telling Henry not to repay the loan. He testified that he went

to Henry’s office approximately eight to ten times around the time the note was due

and instructed Henry to repay the loan, and that Henry told him, “I’ll take care of it.” 

Bitters stated that he told Petersen, “I’m concerned if we push [Henry] too hard, from

what I’ve been told, he may claim bankruptcy, and then we wouldn’t get anything.”

The estate’s expert testified that, as a Certified Financial Planner, Bitters owed

fiduciary duties to his clients and was required to comply with standards imposed by

the Board of Certified Financial Planners. The expert testified that Bitters breached

these duties by not documenting various aspects of the transaction, by making

inadequate disclosures to Petersen, and by failing to act in an even-handed manner

between his two clients. The expert also testified that the amount of the note plus

interest through the trial was $356,619.30.

At the close of evidence, Bitters moved for judgment as a matter of law under

Rule 50 of the Federal Rules of Civil Procedure. The district court granted the

motion in part and denied it in part. The court submitted to the jury only the estate’s

claim against Henry for breach of contract and its claims against Bitters for fraud and

breach of fiduciary duty. The court also limited the claims against Bitters based on

Nebraska’s four-year limitations period for fraud and negligence claims. See

Neb. Rev. Stat. § 25-207. It held that (1) insofar as the estate’s claims were based on

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Bitters’s conduct in 2008, they fell outside of the four-year limitations period and

were time-barred; (2) insofar as the claims were based on the testimony that Bitters

persuaded Henry not to repay the loan in 2009, a reasonable jury could decide that the

limitations period was tolled under doctrine of fraudulent concealment; and

(3) insofar as the claims were based on statements that Bitters made to Petersen

between 2011 and 2013, they were within the limitations period. 

The district court instructed the jury in accordance with these rulings. 

It rejected the estate’s request for an instruction on pain-and-suffering damages,

concluding that there was not “any competent evidence” of non-monetary damages. 

While the jury deliberated, the estate moved to dismiss Henry from the lawsuit. 

The district court denied the motion because it was filed during jury deliberations and

appeared to be a product of “gamesmanship.”

The jury found Henry liable for breach of contract in the amount of

$356,619.30. It also found Bitters liable for fraud and breach of fiduciary duty in the

amount of $356,619.30. The district court decided that it was “beyond debate” that

the jury only awarded damages for the non-payment of the loan, and it declined to

permit double recovery for this single, indivisible injury. Accordingly, the court

modified the jury’s verdict to make Henry and Bitters jointly and severally liable for

a single $356,619.30 judgment. 

Bitters and the estate filed post-trial motions under Rules 59 and 60 of the

Federal Rules of Civil Procedure. Bitters argued that the estate’s claims were barred

by the statute of limitations, that the estate had not proven that it was injured by him,

and that he had not received a fair trial. The estate challenged the district court’s

modification of the jury’s award, its refusal to instruct the jury on pain-and-suffering

damages, its dismissal of the estate’s negligence claim, and its grant of summary

judgment to Boland. The district court denied the parties’ motions. These

cross-appeals followed.

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II. Standards of Review

The parties challenge the district court’s rulings on their motions for summary

judgment, for judgment as a matter of law, for a new trial, to amend the judgment, and

for relief from the judgment. They also challenge the district court’s jury instructions.

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Judgment as a matter of law is appropriate “[i]f a party

has been fully heard on an issue during a jury trial and the court finds that a

reasonable jury would not have a legally sufficient evidentiary basis to find for the

party on that issue.” Fed. R. Civ. P. 50(a)(1). We review these matters de novo,

applying the same standard as the district court, viewing the facts in the light most

favorable to the nonmoving party, and granting the nonmoving party all reasonable

inferences. See Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th Cir. 2000).

We review the denial of a motion for a new trial for “a clear abuse of

discretion.” Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000). “The key

question is whether a new trial should have been granted to avoid a miscarriage of

justice.” Id. (citation omitted). We also review the denial of motions to alter or

amend the judgment, or for relief from the judgment, for an abuse of discretion. 

Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1036 (8th Cir. 2007). We further

review the district court’s jury instructions for an abuse of discretion, considering

only whether the jury instructions, taken as a whole, fairly and adequately represent

the evidence and applicable law, and reversing only where the error affects the

parties’ substantial rights. Zebley v. Heartland Indus. of Dawson, Inc., 625 F.3d 449,

455 (8th Cir. 2010).

III. Analysis

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A. Bitters’s Appeal

Bitters asserts that the district court committed three errors in denying his

motion for judgment as a matter of law and instructing the jury. First, he argues that

the estate’s fraud and breach-of-fiduciary-duty claims were time-barred under

Nebraska’s two-year limitations period for claims of “professional negligence,”

Neb. Rev. Stat. § 25-222, and that the district court erred by instead instructing the

jury to apply the four-year limitations period for claims of negligence and fraud,

Neb. Rev. Stat. § 25-207.

We conclude that any potential error did not affect Bitters’s substantial rights. 

See Zebley, 625 F.3d at 455. The district court limited the fraud claim against Bitters

to “the estate’s claim that William E. Bitters represented to Ms. Petersen that he

would seek repayment from John L. Henry after the loan became due and did not do

so.” And it limited the breach-of-fiduciary-duty claim against Bitters to “(1) the

estate’s claim that William E. Bitters told John L. Henry not to repay the loan in

February of 2009 and [to] extend the term of the loan for one year, and (2) the estate’s

claim that William E. Bitters represented to Ms. Petersen that he would seek

repayment from John L. Henry after the loan became due and did not do so.” 

The court found that, insofar as these claims were based on the allegation that

Bitters told Henry not to repay the loan, “a reasonable jury [could] conclude that

fraudulent concealment applies” and thus that the limitations period was tolled. 

The court correctly instructed the jury on the elements of fraudulent concealment

under Nebraska law. See Andres v. McNeil Co., 707 N.W.2d 777, 787 (Neb. 2005)

(stating the elements of fraudulent concealment). The court also found that, insofar

as these claims were based on the allegation that Bitters represented that he would

seek repayment from Henry but did not do so, they stemmed from conduct that

continued until 2013 and thus fell within both the two-year and four-year limitations

periods. See Anthony K. ex rel. Ashley K. v. Neb. Dep’t of Health & Human Servs.,

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855 N.W.2d 788, 800–01 (Neb. 2014) (explaining the continuing tort doctrine). 

These findings are supported by the record, and Bitters cannot show that he was

prejudiced by the district court’s instructions to the jury. 

Second, Bitters argues that the district court erred by not deciding, as a matter

of law, that the estate failed to prove any damages attributable to him. He describes

the estate’s claims against him as alleging “fraud in the inducement” and argues that

such a claim would only warrant damages that resulted from Petersen entering into

the note and not damages from Henry’s subsequent non-payment. Further, he asserts

that the estate’s “fraud-in-the-inducement” claim asked the jury to rescind the note

and restore the parties to their original positions, whereas its breach-of-contract claim

against Henry asked the jury to affirm the note and award damages for Henry’s

breach. He contends that these theories of recovery are “inconsistent in the sense that

[the estate] cannot logically choose one without renouncing the other,” and that the

estate thus should have been required to make an election of remedies. See Genetti

v. Caterpillar, Inc., 621 N.W.2d 529, 546 (Neb. 2001).

We are not persuaded. Insofar as the estate’s claims against Bitters rested on

a theory of fraud in the inducement, the district court dismissed them on statute-oflimitations grounds. The theories that were presented to the jury were that Bitters

told Henry not to repay the loan and that Bitters told Petersen that he would seek

repayment from Henry and failed to do so. These claims were consistent with the

estate’s breach-of-contract claim against Henry in that each claim sought damages for

the non-payment of the loan. It was permissible for the jury to consider these

alternative theories of recovery so long as the district court allowed only “one

satisfaction [to be] had” for this single, indivisible injury. See id.

Third, Bitters argues that the estate was not the real party in interest because

the money Petersen used to fund the loan came from her annuities, which were

non-probate assets that would pass to her children rather than to her estate. The

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district court rejected this argument because Bitters made it for the first time in the

post-trial renewal of his Rule 50(a) motion for judgment as a matter of law. See

Fed. R. Civ. P. 50(b). We agree that Bitters failed to timely raise this argument and

decline to consider it for the same reason as the district court. See Nassar v. Jackson,

779 F.3d 547, 551 (8th Cir. 2015) (“A court reviewing a Rule 50(b) motion is limited

to consideration of only those grounds advanced in the original, Rule 50(a) motion.”).

Bitters also challenges the district court’s denial of his motion for a new trial. 

He argues that various rulings regarding the evidence, testimony, and arguments

allowed at trial, and opposing counsel’s “repeated and contumacious misconduct,”

deprived him of a fair trial. The district court carefully reviewed each of these

arguments and decided that, although some of Bitters’s concerns were “well-founded,

the trial was not unfair.” We give “great deference” to the district court’s judgment,

and we are not convinced that the court abused its discretion in deciding that a new

trial was not necessary to prevent a miscarriage of justice. See Belk, 228 F.3d at 878. 

B. The Estate’s Appeal

The estate asserts that the district court committed four errors. First, it argues

that the district court impermissibly “halved” its recovery by holding Bitters and

Henry jointly and severally liable for the jury’s award of $356,619.30 in damages. 

We disagree. The district court found that it was “beyond debate” that the only

damages awarded by the jury were for the non-payment of the note. Nebraska law

provides that “a party may not have double recovery for a single injury or be made

more than whole by compensation which exceeds the actual damages sustained.” See

Tolliver v. Visiting Nurse Ass’n of Midlands, 771 N.W.2d 908, 916 (Neb. 2009). 

The district court had “a duty to make the . . . damages award conform to the law,”

Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir. 2005), and did not abuse its discretion

by preventing the estate from recovering twice for a single, indivisible injury, see

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Genetti, 621 N.W.2d at 546 (“Where several claims are asserted against several

parties for redress of the same injury, only one satisfaction can be had.”).

Second, the estate argues that the district court erred by not instructing the jury

on pain-and-suffering damages. There was testimony at trial that Petersen was

anxious, nervous, agitated, and worried about the non-payment of the loan. But the

district court decided that, in the absence of more concrete testimony about the cause

and extent of these damages, and because Petersen also suffered from other medical

issues, there was “insufficient evidence” to submit this issue to the jury. Under

Nebraska law, “a plaintiff’s evidence of damages may not be speculative or

conjectural and must provide a reasonably certain basis for calculating damages.” 

Pribil v. Koinzan, 665 N.W.2d 567, 572 (Neb. 2003). We agree with the district

court’s conclusion that the evidence was insufficient to provide the jury with a

reasonably certain basis for calculating pain-and-suffering damages.

Third, the estate challenges the district court’s decision, at the Rule 50 hearing,

to dismiss its negligence claim as “duplicative” of its breach-of-fiduciary duty claim. 

In dismissing this claim, the district court correctly stated that, under Nebraska law,

the elements of negligence and breach of fiduciary duty are the same—duty, breach,

causation, and damages. McFadden Ranch, Inc. v. McFadden, 807 N.W.2d 785, 789

(Neb. Ct. App. 2011). The estate argues that this does not necessarily mean that the

claims are duplicative because “[a] fiduciary duty arises out of a confidential

relationship,” whereas negligence can occur in the absence of such a relationship. 

See Gonzalez v. Union Pacific R.R. Co., 803 N.W.2d 424, 446 (Neb. 2011). 

We agree that these claims are not always redundant. But here, the estate asserted the

same duty, breach, causation, and damages as to each claim. Because it was clear at

the Rule 50 hearing that these claims were identical, the district court did not err by

dismissing the estate’s negligence claim. See Renner v. Wurdeman, 434 N.W.2d 536,

542 (Neb. 1989) (affirming the dismissal of a redundant claim).

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Finally, the estate challenges the district court’s grant of summary judgment to

Robert Boland. The estate’s claims against Boland were based on its assertion that

Boland entered into a partnership with Bitters and was “jointly and severally liable

for Bitters’s misconduct.” It provided evidence that Boland had a profile on Bitters’s

website, that the two had “collaborated on speaking engagements, made referrals, and

exchanged financial and legal ideas over the years,” and that the two wrote articles

together and sometimes referred work to each other. The district court concluded that

this failed to raise a genuine dispute of material fact as to whether Bitters and Boland

had entered into a partnership because there was “no evidence of co-ownership.” See

Neb. Rev. Stat. § 67-410(1) (“[T]he association of two or more persons to carry on

as co-owners a business for profit forms a partnership . . . .”); In re KeyTronics, 744

N.W.2d 425, 441 (Neb. 2008) (“It is co-ownership that distinguishes partnerships

from other commercial relationships . . . .”). We agree with the district court’s

analysis. See In re KeyTronics, 744 N.W.2d at 441 (listing several “objective indicia

of co-ownership” that are not present here). 

IV. Conclusion

For the foregoing reasons, we affirm.

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