In re: Erik Samuel De Jong and Daryl Lynn De Jong, 588 B.R. 879

Debtors (Erik and Daryl de Jong) continued operating a dairy on property purchased at foreclosure by JLE after their lease terminated; state court found they were trespassers.
Debtors filed Chapter 11; bankruptcy court allowed state trial to decide possession but restrained enforcement and repossession.
JLE sought disgorgement damages for trespass measured largely by Debtors’ net profits and the value of silage consumed during occupancy.
The bankruptcy court awarded prepetition and postpetition damages composed of disgorged net profits and silage value, then credited prorated rent/taxes.
On first BAP appeal, the Panel vacated only the postpetition silage component as double-counted (silage is an operating expense), and remanded for recalculation.
On remand the bankruptcy court eliminated postpetition silage but retained prepetition silage; this second appeal challenges (1) inclusion of prepetition silage and (2) several aspects of the net-profits and rent-credit calculations.

Issue	Plaintiff's Argument (Debtors)	Defendant's Argument (JLE)	Held
Whether prepetition silage value must be excluded from damages	Same logic as for postpetition: silage is an operating expense and cannot be separately disgorged	Prepetition silage was properly awarded because BAP earlier vacated only postpetition award	Court: Prepetition silage must be stricken; BAP’s rationale applies equally to prepetition period
Whether bankruptcy court could revisit prepetition silage on remand under rule of mandate	N/A (asks for consistency)	N/A (argued remand limited)	Court: Mandate did not bar reconsideration of issues not decided on appeal; bankruptcy court abused discretion by refusing to revisit prepetition silage
Proper measure and extent of disgorgement of net profits	Net profits earned during trespass should be reduced similarly to eliminate silage	JLE: disgorgement should be full net profits (gross revenue minus operating expenses) and court may adjust methodology	Court: Disgorgement must cover all net profits causally connected to trespass; bankruptcy court erred by reducing net profits by hypothetical profits Debtors "could have" earned elsewhere
Whether remand permitted JLE to press new challenges to profit calculations	N/A	JLE: allowed to press recalculation arguments although it defended the award on first appeal	Court: JLE did not waive these arguments; remand that reduced award "lessened" JLE’s position and allowed new challenges

Neptune Orient Lines, Ltd. v. Burlington N. & Santa Fe Ry. Co., 213 F.3d 1118 (9th Cir.) (de novo review of legal standard for damages computation)
E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 758 F.3d 1162 (9th Cir.) (de novo review of compliance with appellate mandate)
United States v. Thrasher, 483 F.3d 977 (9th Cir.) (mandate/jurisdictional error principles)
Hall v. City of Los Angeles, 697 F.3d 1059 (9th Cir.) (abuse-of-discretion when reconsidering issues on remand not foreclosed by mandate)
United States v. Hinkson, 585 F.3d 1247 (9th Cir. en banc) (two-step abuse-of-discretion standard for equitable relief)
Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d 1179 (9th Cir.) (disgorgement principles; reasonable approximation of profits causally connected to violation)
Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir.) (trial court may revisit issues on remand not expressly decided on appeal)