United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 96-1844 and 96-1874

___________ Norwest Bank Minnesota, * National Association, * Appellee/Cross- * Appellant, *

v. * Appeals from the United States Sween Corporation; Maurice A. * of Sween; Keith B. Brekke, * Minnesota. Appellants/Cross- * Appellees, * Office of the Comptroller of the * Currency, *
Amicus Curiae. *

*

* District Court for the District

*

*

___________ Submitted: February 12, 1997 Filed: July 8, 1997

___________ Before FAGG, HEANEY, and JOHN R. GIBSON, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge. Norwest brought this action against Sween Corporation, Maurice Sween, and Keith Brekke, seeking a declaratory judgment that its Corporate Financ e Division's

## Sween Corporation and Brekke also appe al. Because of their earlier dismissal, 1 

## h o wever, they do not have standing to appeal on any issue except for their dismissal, from which they do not appeal.
-2- business is incidental to its banking business, and that therefore Sween Corporation breached its agreement with Norwest by failing to pay it the advisory fee due unde r an agreement between Norwest Corporate Finance and Sween Corporation. Norwest asked the court to award it the advisory fee and attorneys' fees and expenses incurred in the action. Sometime after fi ling the complaint, Norwest dismissed Sween Corporation and Brekk e voluntarily, but left Maurice Sween as a defenda nt. On cross- motions for summary ju dgment the district court ruled in favor of Norwest. Swee n appe als, arguing that the agreement is unenforceable because Norwest' s

1 actions under the agreement were not incidental to the business of banking , and that Norwest's acts were beyond its powers because it did not obtain prior approval from the Board of Governors of the Federal Reserve System to enter into the agr eement. Even if the agreement is enforceable, Sween argues that the distr ict court incorrectly computed the advisory fee owed to Norwes t, and that the agreement's terms do not obligate Sween to pa y Norwest's legal fees in this action. Norwest cross-appeals arguing that it is entitled to prejudgment interest on the award granted by the distric t court. We remand to the district court for the award of prejudgmen t interest to Norwest, and affirm the district cou rt's judgment in all other respects.

Sween Corporation is a Minnesota corporation that develops an d manufactur es skin care products for the medical market. Norwest is a natio nal bank established in Minneapolis, Minnesota pursuant to th e Nation al Bank Act as amended. Norwest provides investment advisor y services related to mergers and acquisitions thr ough a division of Norwest referred to as Norwest Corporate Finance. This division is not a separate legal entity. The common stock of Norwest is owned by Norwest Corporation , a bank holding company governed by the Bank Holding Company Act as

## The com mon stock of Norwest Bank is owned by Norwest Corporation , 2 

## Lindeberg Financial Corporation, and Norwest Hold ing Company. The common stock of Lin deberg Financial Corporation and Norwest Holding Company, however, ar e owned by Norwest Corporation. Therefore, Norwest Corporation, either directly o r indirectly, owns all of the common stock of Norwest Bank.
Because Norwest Corporate Finance is simply a division of Norwest, and not 3


## a se parate legal entity, we will refer to Norwest Corporate Finance as Norwes t throughout the rest of this opinion.
-3- amended. Jeffrey Maas, Peter Slocu m, and D. Christian Osborne worked for

2 Norwest in the Norwest Corporate Finance Division when Norwest Corporate Financ e and Sween entered into the Engagement Agreement at issue. Non e

3 of these three employees has ever been licensed as a Minnesota broker.
An Engagement Agreement between Sween Corporation, Sween, Brekk e, and Norwest dated October 10, 1994, authorized Norwe st to act as the exclusive advisor to initiate negotiations regarding the sale of all or part of Swee n Corporation. Under the terms of the Engagement A greement, upon the sale of Sween Corporation, Sween Corporation agreed to pay Norwest an advisory fee

.

Immediate ly after October 10, 1994, Norwest prepared and circulated to prospective buyers an extensive brochure promoting Sween Corporation. Norwest contacted in excess of 135 potential buyers. By December 1994 , Swe en Corporation agreed to narrow the list to four prospective buyers

. These buyers brought teams to Mankato for a week in December to meet with representatives of both Sween Corporation and Norwest for the purpose of investigating and evaluating Sween Corporation. Two top ranking executive s of Coloplast A/S, one of the potential buyers, met with Sween personnel.

After these meetings, Maas was the go-between to the prospectiv e buyers and sellers. On December 18, 1994, a representative of Coloplast called Maas and said that

### -4-

Colop last was prepared to execute a letter of intent to purchase Swee n Corporation for $80,000,000. Sween, Brekke, and David Hackley, a n attorne y representing Sween Corporation, met with a representative o f Colop last to discuss the purchase. Maas also attended the meeting an d advised Sween. As a result of this meeting Coloplast entered into a lette r of inte nt in which it agreed to purchase, at its option, either all th e assets or all the shares of Sween Corporation on February 28, 1995. The pu rchase obligation was contingent upon a satisfactory due diligenc e exami nation of Sween Corporation, to be followed by the execution of a comprehensive purchase agreement.

Durin g a two-day meeting representatives of Sween Corporation an d Coloplast negotiated the terms of the stock purchase agreement. During th e first day, Hackley and Douglas Hemer represented Sween Corporation. On on e
or more occasions, Maas and Sween attended the meetings and participated in negotiations. At the conclusion of this proc ess, Sween Corporation and Coloplast reached a stock purchase agreement. A ttorneys represented Sween Corporation at all times through the negotiations leading to the stoc k purchase agreement. Norwest did not draft or prepare any part of the stoc k purchase agreement. On February 28, 1995, Sween Corporation transferred all of its shares to Coloplast's Georgia subsidiary. Norwest full y perfo rmed its obligations under the Engagement Agreement, but Swee n Corp oration refused to pay the advisory fee due to Norwest under th e Agreement.

Norwest brought this action before the district court seeking a declar atory judgment that its acts under the Engagement Agreement wer e incidental to its banking business, and that the refore it was not required to have a Minnesota r eal estate broker's license to maintain an action to colle ct the advisory fee. Norwest claimed that Sween had breached th e Engagement Agreement by failing to pay the advisory fee and asked the cour t to award the fee, as well as attorneys' fees and expenses in connectio n with enforcing the Engagement Agreement. The d istrict court granted summary judgment to Norwest concludin g that the acts

## A broker is "a ny person who . . . for another and for commission, fee, or other 4 

## valua ble consideration or with the intention or expectation of receiving the sam e directly or indirectly lists, sel ls, exchanges, buys, rents, manages, offers or attempts to negotiate a sale . . . of any business opport unity or business, or its goodwill, inventory, or fixtures, or any interest therein." Minn. Stat. § 82.17, subd. 4(c) (1996).
-5- engaged in by Norwest under the Engagement Agreement were incidental to th e busine ss of banking, and that therefore Norwest and Norwest Corporat e Fin ance's employees were exempt from the Minnesota broker licens e requirement. See No rwest Bank Minn., Nat'l Ass'n v. Sween Corp. , 916 F. Supp. 1494, 1510-11 (D. Minn. 1996). The court also concluded that Norwes t was not required to o btain prior approval from the Federal Reserve before entering into the Engagement Agreement. Id. at 1507-08. The court ordere d Sween to pay Norwest $2,741,707 in fees due under the Engagement Agreement , and also held Sween liable for Norwest's attorneys' fees in connection wit h this suit. Id. at 1508-11.

I.

A.

The pr imary issue before us is whether Sween is obligated to pa y Norwest the fee that he promised to pay under the Engagement Agreement

. Sween argues that Minnesota law prohibits Norwes t from collecting the fee. In formulating his argument, Sween first contend s that Norwest is a broker under Minnesota law, which Norwest does not dispute. Sween next point s 4 to a Minnesota statute that prohibits a person required to be licensed fro m bringing a suit for collection of compensation f or the performance of acts for which a license is required, without proving that the person wa s licensed properly at the time the alleged action occurred. Minn. Stat. § 82.33, subd. 1 (1996). Sween argues that because neither Norwest Corporat e Finance, nor its employees, were licensed as brokers under Minnesota law at the time the parties acted under the Engagement Agreement, Norwes t cannot bring this suit to collect the

### -6-

advisory fee.

Nor west responds by first pointing to Minnesota Statute sectio n 82.18( e), that exempts various entities, including banks, from the ter m "broker" when engaged in the transaction of business within the scope of their corp orate powers as provided by law. Norwest then asserts tha t pur suant to the National Bank Act, as a national bank, it had federa l authority to enter into the Engagement Agreement and to fulfill its duties under that agreement. See 12 U.S.C. § 24(Sevent h) (1994). Sween responds that Norwest's acts went beyond the authority provided to Norwest under th e Act. We review a grant of summary judgment de n ovo. See McKee v. Federal Kemper L ife Assurance Co. , 927 F.2d 326, 328 (8th Cir. 1991). We wil l affirmonly if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P

. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

The N ational Bank Act vests each national bank with the authorit y "[t]o exercise . . . all such incidental powers as shall be necessary to carry on the business of banking." Id. Though the statute lists a fe w activities in which b anks are authorized to engage, the incidental powers
are not confined to activities that are considered essential to th e exercise of express powers. See First Nat'l Ban k v. Taylor , 907 F.2d 775, 778 (8th Cir.), cert. denied , 498 U.S. 972 (1990). Our analysis thu s focuses on whether th e acts conducted under the Engagement Agreement fall withi n the "incidental powers" necessary to carry on the business of a national bank.

The Offic e of the Comptroller of the Currency, as the administrator charged with the regu lation of national banks, has primary responsibility for supervising the "business of banking." See 12 U.S.C. § 27 (1994). It is well es tablished that we must defer to the reasonable judgments o f agen cies on the meaning of ambiguous terms in statutes that they ar e charged with administ ering. See Chevron U.S.A. Inc. v. Natural Resources Defense C ouncil, Inc. , 467 U.S. 837, 842-45 (1984). See also Smiley v

. Citibank (South Dakota), N.A. , 116 S. Ct. 1730, 1733-34 (1996) ("[T]h e whole point

## The Comptroller's position in this litigation is based on a regulation and lon g 5 

## stan ding policy. We see no evidence that the Comptroller's position is a "'post ho c rationali zation advanced by an agency seeking to defend past agency action agains t attack.'" Lovilia Coal Co. v. Harvey , 109 F.3d 445, 452 (8th Cir. 1997) (quoting Auer v. Robbins , 117 S. Ct. 905 , 911 (1997)). The Comptroller is not a party to this action
an d because "[t]here is simply no reason to suspect that the [Comptroller's ] interpretation does not re flect the agency's fair and considered judgment on the matter in question" we will consider whether the Comptroller's view is reasonable. See id

. (quota tion omitted). The fact that the Comptroller reiterates its position in an amicus brief does not prevent us from considering it. See Skandalis v. Rowe , 14 F.3d 173, 179 (2d Cir. 1994).

-7- of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.") We previously have deferred to th e reason able interpretation of the Comptroller on the meaning of th e ambiguous phrase "incidental powers" necessary to carry on the "business of banking." See Taylor , 907 F.2d at 777-78. In addition, recently the Supreme Court has reemphasized the need to defer to the reasonable judgmen t of the Comptroller on the meaning of ambiguous terms in banking laws that the Comptroller is charged with enforcing. See Smiley , 116 S. Ct. at 1733

. "The Comptroller of the Currency is charged with the enforcement of bankin g laws to an extent tha t warrants the invocation of [the rule of deference] with respect to his deliberative conclusions as to the meaning of thes e laws." N ationsbank of N.C. v. Variable Annuity Life Ins. Co. , 513 U.S

. 251, 256-57 (1995) (citations and internal quotations omitted).

The Off ice of the Comptroller of the Currency, through 12 C.F.R. § 7.1002 (1997) and an amicus brief submitted in this appeal, ha s stated its 5 view th at Norwest's acts under the Engagement Agreement fall within a nati onal bank's powers. In 1971 the Comptroller adopted 12 C.F.R. § 7.7200, a regulation that specifically authorized a national bank to act
as a "'finder' in bringing together a buyer and seller." The presen t version of this regulation provides that:

### -8- (a) Gene ral . A national bank may act as a finder i n bringing together a buyer and seller.
(b) Qualific ation . Acting as a finder includes, without limitation, identifying potential parties, making inquiries as to interest, introducing or arranging meetings of intereste d par ties, and otherwise bringing parties together for a tra nsaction that the parties themselves negotiate an d con summate. Acting as a finder does not include activitie s that would characterize the bank as a broker under applicable Federal law.
(c) Advertis ement and fee . Unless otherwise prohibited, a national bank may advertise the availability of, and accept a fee for, the services provided pursuant to this section.
12 C.F.R. § 7.1002.
Th is regulation encompasses most of Norwest's activities under th e Enga gement Agreement which involved locating suitable buyers for Swee n Corporation. In fact , Sween himself concedes in his brief that he "would be pressed if forced to point to significant doings of [Norwest] that woul d not arguably fit within subparagraph (b) of the amended regulation." In addition, the Office of the Comptroller of the Currency argues tha t Norwest's role in the negotiations between Sween Corporation and Coloplast is of no consequence because these additional activities also fall within a national bank's incidental powers under 12 U.S.C. § 24(Seventh).

Under Chevron , we must now consider whether the Comptroller's vie w that Norwest's action s were within a national bank's powers is based on a permissible construction of the National Bank Act. 467 U.S. at 843. Swee n argues that neither Norwest nor the Comptroller has articulated wh y Norwest's acts under the Engagement Agreement were "necessary to carry on the business of banking" because Norwest has not identified any activity in the business of ba nking that would be impaired, or at least moderately inconvenienced, if Norwest could not conduct this type of business. W e emphasize, however, that the "'incidental powers' of national banks are no t limited to

### -9-

act ivities that are deemed essential to the exercise of express powers

. Rather, courts have analyzed the issue by asking whether the activity is clo sely related to an express power and is useful in carrying out th e bus iness of banking." Taylor , 907 F.2d at 778 (the Comptroller' s determination that debt cancellation contracts are within the incidental powers g ranted by the National Bank Act is reasonable). See als o Nationsbank of North Carolina, N.A. , 513 U.S. at 257-63 (the Comptroller's determination that national banks may serve as a gents in sale of annuities was a reasonable cons truction of the National Bank Act). The Comptroller expla ins that Norwest's activities are within the incidental power s necessary to the business of banking because allowing banks to use their expe rtise as an intermediary effectuating transactions between partie s fac ilitates the flow of money and credit through the economy. Th e Comp troller further explains that as recognized intermediaries betwee n other nonbank participants in financial markets and payment systems, banks have expertise to effectuate transactions between parties. Finally, the Comptroller emphasize s that it has issued numerous administrative rulings that expressly author ize banks to offer these types of services. We find nothing unreasonable about the Comptroller's vie w as this type of activity is related to an express banking power and is useful in carrying out the business of banking. See Taylor , 907 F.2d at 778.

B.

Sween next argues that he does not have to show that Norwest' s conduct does not fit within subparagraph (b) of the amended regulatio n because the amended regulation is a significant change from the original regulation. The original regulation provided:

A national bank, pursuant to request, m ay act as "finder" in bringing together a buyer and seller, where the bank' s activity is limited to the introduction and it take s no further part in the negotiations. For this service the ban k may accept a fee.

### -10-

12 C.F.R. § 7.7200 (1996).

Sween con tends that the original regulation confined the authorized activities of nationa l banks to the introduction of the buyer and seller, and did not authorize any activities beyond the introduction, but he admit s the amended regulatio n goes further. Because this "significant change" in the law occurred after Norwest entered into and acted under the Engagement Agreeme nt, Sween argues that Norwest cannot use the new regulation t o cre ate permission it did not have when it acted under the origina l regulation.

In Smiley , the Supreme Court deferre d to a regulation concerning the definition of "interest" as used in a provision of the National Bank Act
even though the Office of the Comptroller of the Currency had passed the regulation after the acts at issue had occurred. 116 S. Ct. at 1733-35. Sween attempts to dis tinguish Smiley , arguing in his brief that in Smiley the Su preme Court emphasized the critical importance that the ne w regulation was not a change in existing law, but rather "the first formal enunciation of existing law." The petitioner in Smiley argued that the ne w regulation was inconsistent with positions taken previously by th e Comptroller, and the Supreme Court acknowledged that some interpretative letters from the Offi ce of the Comptroller of the Currency could indicate
some "unce rtainty and confusion." Id. at 1735. The Court concluded , however, that absent "[s]udden and unexplained c hange, or change that does not take a ccount of legitimate reliance on prior interpretation . .

. change is not invalidating since the whole point of Chevron is to leave th e discretion provided b y the ambiguities of a statute with the implementing agency." Id. at 1734 (citations omitted).

Here, Sw een offers no evidence of a sudden and unexplained change

. Indeed, all evidence presented suggests the new regulation was no differen t from the allowed practices under the old regulation. For example, th e district court cited at least two opinion letters from the Office of the Com ptroller of the Currency supporting the view that national banks ma y provide advisory services regarding mergers and acquisitions.

### -11-

916 F. Supp. at 1504-05. Neither letter makes mention of any limitation of this authority beyond the introduction stage. We also look to th e discussion in the notice of proposed rule making. "Proposed § 7.100 2 revises current § 7.7200 to reflect more recent [Officer of the Comptrolle r of the Currency] inte rpretations. The proposal clarifies that a national ban k may act as a finder of certain goods and services other tha n insu rance." 60 Fed. Reg. 11924, 11925 (to be codified at 12 C.F.R. § 7.10 02) (proposed Mar. 3, 1995). Finally, in the section by sectio n discussion of the fin al rule adopted, the Comptroller again stressed that the proposal "clarified that a national bank may act as a finder" an d observed that section 7.1002 was adopted as proposed. See 61 Fed. Reg

. 4849, 4850-51 (to be codified at 12 C.F.R. § 7.1002).
Sween also argues that the amended regulation is a significant change because the distribut ion table in the Federal Register commented that the amended regulation was a "significant change" from the original regulation

. The Supreme Court did not discuss the distribution table in Smiley

. However, our review o f the distribution table in the Federal Register for the regulation at issue in Smiley , reveals that the table indicated that the am ended regulation was a significant change from the origina l provision. See id. at 4861. We therefore reject Sween's argument and hol d that the amended regulation is not a sudden and unexplained change from th e original regulation.

II. Sw een next argues that Regulation Y, 12 C.F.R. pt. 225, require d Norwest to apply or provide notice to the Board of Governors of the Federa l Reserve System before entering into the Engageme nt Agreement. In order to understand this regulation, it is first necessar y to consider the relevant statuto ry framework. The Bank Holding Company Act grants the Federa l Res erve principal regulatory power over bank holding companies. See 1 2 U.S.C. §§ 1842-43 (1994). Section 1842 discusse s Federal Reserve approval for acquisition of ownership or control of a bank by a bank holding

### -12-

company. Section 1843 discusses a bank holding company's ownership o r
con trol of voting shares of any company not a bank and the nonbankin g activities of a bank holding company. This section provides that:

Except as otherwise provided . . ., no bank holding company shall--
(1) . . . acquire direct or indirect ow nership or control of any voting shares of any company which is not a bank, or (2) . . . re tain direct or indirect ownership or control of any voting shares of any company which is not a bank or bank hol ding company or engage in any activities other than (A ) those of banking or of m anaging or controlling banks and other subsidiaries authorized under this chapter or of furnishin g servic es to or performing services for its subsidiaries, an d (B) those permitted under paragraph (8) of subsection (c) o f this section [governing notice and approval of service s "closely related to banking"] . . .
The F ederal Reserve issued Regulation Y pursuant, in part, to the Ban k Holding Company Act. Subpart C of Regulation Y, titled "Nonbankin g Activities and Acquisitions by Bank Holding Companies," contains a provision that provides that a bank holding company or a subsidiary may no t engage in some activities related to banking wit hout the prior approval of the Federal Reserve in accordance with the requirements of this regulation

. See 12 C.F.R. § 225.21(a) (1996).
Sween argues that Norwest's acts und er the Engagement Agreement were
a type of activity for which prior approval was required because Norwest is a subs idiary of a bank holding company. Sween contends that becaus e Norwest did not get prior approval from the Fede ral Reserve it went beyond its powers when it entered into the Engagement Agreement. Norwest respond s that though it is a s ubsidiary of a bank holding company, because it is a national bank subsidiary, it is not subject to regulation by the Federal Reserve, but only to regulation by the Comptroller. The Comptroller agree s with Norwest, arguing that the Bank Holding Act does not give the Federal

### -13-

Reserve the statutory authority to prescribe the permissible activities of national bank subsidiaries of bank holding companies.

The Secon d Circuit is the only circuit that has addressed the issue of the Federal Reserve's regulatory authority where the subsidiary of a bank holding company at issue was a bank. In In dependent Insurance Agents
v. Boar d of Governors , 890 F.2d 1275 (2d Cir. 1989), cert. denied , 49 8 U.S. 810 (1990), the Federal Reserve interpreted section 1843 of the Bank Holding Company Act that limited the nonbanking activities of bank holding companies. The Federal Reserve found that the Act did not apply to bank subsidiaries of a bank holding company, and thus concluded that it could not regulate the activities of the state bank su bsidiary of a bank holding company. Id. at 1279. In the Federal Reserve's view, in enacting the Ban k Holding Company Act, Congress did not wish to displace the traditiona l author ity of state and national bank chartering authorities to regulat e activities of banking, even though a bank holdin g company owned the actual banks. Id. at 1280. The Second Circuit applied Chevron analysis and firs t determined that the s tatute at issue did not directly address this issue, and then considered whether the Federal Reserve's conclusions wer e reasonable

. Id. at 1281. After a thorough analysis of the Federa l Reserve's interpretation of the statute and the legislative history of the Act, the Second Circuit concluded that the Federal Reserve's interpretatio n
was reasonable. Id. at 1279-84. Independent Insurance Agents thu s concludes that the Federal Reserve has no authority to regulate th e acti vities of bank subsidiaries of bank holding companies. See als o Citicorp v. Board of Governors , 936 F.2d 66, 73-76 (2d Cir. 1991 ) (e xtending Independent Insurance Agents and holding that the Federa l Rese rve also lacks authority to regulate the subsidiary of a holdin g company's bank subsidiary), cert. denied , 502 U.S. 1031 (1992).

We agree with the district court that the reasoning of the Secon d Circuit is sound and applicable to this case. We therefore hold that 12 C.F.R. § 225.21(a) does not apply to Norwest as a national bank subsidiary of a bank holding company. We thus

### -14-

reject Sween's argume nts that by failing to provide notice to the Federal Reserve before engagi ng in the activities under the Engagement Agreement, Norwest was acting be yond its powers, because Norwest was not required to obtain approval from the Federal Reserve.

III.

Sween next argues that even if the contingent fee agreement i s enforceable, its terms do not obligate Sween to pay Norwest's legal fees in this action. The district court did not err in concluding that th e indemnification clause included in the Engagement Agreement was not limite d to third-party indemn ity actions, and we therefore affirm the judgment of the district court on this issue.

On appeal, however, Sween also asserts that the indemnificatio n clause made only Sween Corporation, and not himself or Brekke, liable

. Sween argues that when Norwest dismissed Sween Corporation voluntarily , Norwes t simultaneously dismissed its claim for attorneys' fees. Sween , however, f ailed to raise this argument before the district court. I n Norwest's motion to dismiss Sween Corporation and Brekke, Norwest argued that because Sween, Brekke, and Sween Corporation had each entered into the En gagement Agreement all three parties were jointly and severall y liable, and therefore Norwest could elect to sue the parties jointly o r seve rally. Sween, in its reply before the district court, supporte d Norwest's motion for voluntary dismissal of Sween Corporation and Brekke conced ing that "[n]either Sween Corporation nor Keith Brekke is a n indispensable party. If Norwest prevails against Maurice A. Sween as the sole remaining defendant, it is afforded complete relief . . ." Sween's failure to raise the issue that Norwest dismisse d its claim for attorneys' fees before the district court prevents us from now considering thi s argument on appeal. See Roth v. G.D. Searle & Co. , 27 F.3d 1303, 1307 (8t h Cir. 1994); Thompson v. Brule , 37 F.3d 1297, 1301 (8th Cir. 1994).

### -15- IV.
Finally, Sween argues that even if the Engagement Agreement i s enforceable, the district court incorrectly com puted part of the advisory fee due to Norwest. After careful review of the district court's analysis , we see no error and we thus affirm the judgment of the district court on this issue.

V.

Norwes t cross-appeals arguing that the district court erred i n failing to include prejudgment interest in its judgment for Norwest. Swee n concedes that Norwest is entitled to prejudgment interest. Accordingly,
we remand to the district court for the award of prejudgment interest to Norwest, and affirm the judgment of the district court in all othe r respects.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.