*1 above, noted tions judgment. As we have the did not warrant such a sweeping con- clusion, particu- flowage light of a easement is especially valuation of this court’s difficult. It is understandable larly that admonition that the Government in con- value conclusions of absolute drawn obligated the demnation actions is offer differ. Sawyers There is just price, Dane premium price. not a In light of Sawyers knew of ap- Amendments, however, no hint Dane’s the to reach praisal, been instructed a less court had no alternative but to confine otherwise generous conclusion or acted in itself to the before record the Commission significantly, faith. Most bad both the and its failure do so constitutes error. pre-trial Government’s settlement offer and When in a condemnation action the trial evidence its its matched concurrent experienced, Government qualified, selects appraisals. competent appraisers, and re consistently specific The district court offered no crit- lies on their just valuations its offers of appraisals, icisms Government’s compensation, without evidence of bad chiding from a aside reference Dane’s part, faith on its its course of personal appraisals record of other solid, founded, clearly well reasonable. F.Supp. ap- cases. 674 at 598. The court therefore, position, Its is substantially jus referring to five other parently was con- tified. apprais- Dane’s demnation actions which more as far from als were than twice the III. ap- award as the landowners’ adjudicated We conclude fees should not have (data praisals. F.Supp. See 614 at 607-11 been awarded to the Phisters under Government). supplied by Although Act. The of the district court perhaps record in cases prior Dane’s these awarding fees is reversed. undue suggests conservativism his of that praisals, relevance record is
questionable. appraisals in Dane’s
present pattern sug- case do not reveal justification
gesting a lack of substantial positions. Government’s Because final
Government’s initial and settlement appraisal based on offers Dane’s were Audrey COMMERFORD, Appellant, L. Sawyer’s appraisal, than the Phis- higher cannot contend ters Government OLSON, for a than it Ronald O. pushed lower settlement could justified have before the Commission. Re- Municipals, Miller & Schroeder relevance, gardless any possible Inc., Appellee. Act, the district court should the amended evidence, not have considered this No. 85-5056. proceed- the record United Court of Appeals, States leading ings to the condemnation award. Eighth Circuit. 2412(d)(1)(B). 28 U.S.C.A.
See Sept. Submitted 1985. The district also considered Decided in other condemnation the record federal involving appraisers other reach actions Rehearing En Rehearing Banc appeared to draw from ing its decision. It 7,1986. Aug. Denied wide-ranging comparison with other position in that the Government’s vir cases is not all condemnation actions sub
tually
stantially justified. F.Supp. at See 614 prior record of condemnation ac- *2 ROSS,
Before McMILLIAN AR- NOLD, Judges. Circuit McMILLIAN, Judge. Audrey appeals L. Commerford from a in final entered the District for Minnesota upon Court the District of a in Miller & favor of Schroeder Municipals, reversal ar- Inc. For gues court erred requested to submit verdict form on For below, we the reasons discussed reverse and remand.
Appellant During retired librarian. 1979, appellant the summer of sold her house York and moved Little New Rock, Appellant realized about Arkansas. $65,000 of her from the sale house and deposited money checking in her ac- count. firm,
Appellee municipal is a bond states and has offices in several head- quarters In 1977 in Minnesota. Olson, joined appellee nephew, Ronald O. vice-president salesperson. bond state Min- Olson was licensed Exchange nesota and the Securities municipal bonds to sell Commission may pellee. salesperson A sell bonds bond away from office and at time. appellee’s top Olson was one of bond sales- persons. deteriorating men-
Because of
condition,
physical
appellant’s depo-
tal and
sition,
in December
was sub-
taken
testimony
in lieu of
mitted
trial
and his
son. Olson testified
testimony
appel-
generally corroborated
misrepresen-
had
theory
lant’s
that Olson
money
his
to invest her
ted
intention
through appellee. The
municipal bonds
following.
testimony revealed the
July
informed
1979 Olson
money
a bond
that he
invest her
could
higher
earn a
rate
fund
order to
Minn.,
Taber, Minneapolis,
Daniel P.
checking
Appel-
account.
than
return
her
appellant.
money. Appel-
her
agreed
invest
lant
Minn.,
experience
Drake, Minneapolis,
prior
had no
lant
W. Michael
relied
advice.
on Olson’s
however,
appellant mailed a
believed
On
that Olson was still em-
$45,000,
payable
ployed by appellee.
made
to Olson
check for
at his
personally, to
home address.
Olson
May
discovered that
payable
check
Appellant made the
Olson
$161,000
received
from his in-
he told her that he would have to
because
laws,
Olafsons,
pretense
under the
with other
combine her check
customers’
money
he would invest the
in a mutual
*3
in
obtain
money
highest
order to
rate
Olson
bond fund.
had not invested this
of return.
money
but instead converted it to his
Appellee officially
sonal use.
terminated
1979,
19,
On
Olson
mailed
hand-
Olson and cancelled his license to sell bonds
appellant.
written note to
The note was
through appellee.
note,
plain
paper;
written on
memo
however,
appellee’s
was enclosed in one of
1980,
In September
appellant’s attorney
envelopes.
business
in
note stated
appellee’s president
inquire
called
about
part:
already
“Money arrived and is
work-
Appellee’s president
account.
ing for you.
August
Your check
2 will be
confirmed that
opened
Olson had not
an
starting September
then
$173.44. And
appellant
appellee.
account for
with
$346.87____
and each month thereafter
1981,
In March
the Minnesota authorities
get
you
Please let me know as soon as
revoked Olson’s securities license. Olson
put
additional cash
we will
work
and
it to
prosecuted
was later
for securities fraud
you right away.”
signed
The note was
Olafsons’
investment but not for
“Love,
“Liz”
Ron and Liz.”
refers to Ol- appellant’s
peti-
investment. Olson filed a
son’s wife.
bankruptcy
January
tion in
13, 1979,
September
appellant
On
sent
Appellant
against
filed this action
Olson
$10,000,
check for
payable
made
another
1981,
appellee in
in-
alleging,
and
October
Olson, to Olson
his home
Dur-
at
address.
alia,
ter
violations of state and federal
1979,
ing
the fall of
received two
laws,
fraud,
common law
breach
checks from
drawn on
personal
Olson
his
contract,
of
and
liability. Appel-
vicarious
account,
checking
ostensibly as “interest
sought compensatory
punitive
lant
and
income” from her investment.
damages,
attorney’s
interest and
fees. Ol-
son did not answer and a default
$13,000
April
On
sent
eventually
against
was
entered
him. Be-
personal
wire transfer Olson’s
check-
appellant voluntarily
fore trial
dismissed
ing
Appellant
any
account.
did not receive
statutory
her
federal
state
claims
but,
more “income” checks from
af-
Olson
“controlling person”
based on
liability
checks,
inquried
ter she
about future
against appellee.
appeal
The sole issue on
summer of 1980 she
checks
received two
appellee’s liability
concerns
for Olson’s acts
checking
from
drawn on
Olson’s wife
her
common
agency principles.
based on
law
account.
appellant requested jury
At trial
instruc-
appellant’s money
Olson did
invest
tions and
verdict forms on the basis
but
money
instead converted
his
of two theories of
liability scope
vicarious
personal
Appellee
use.
was
unaware
employment
apparent authority.
May
the fraud. From November 1979 until
the jury
instructed
on
1980 Olson
on an
was
extended leave
scope
employment
both
February
absence from
In
refused,
authority
but
over
ob-
appellee’s
of-
called
jection,
submit a
verdict form
fices and had been told Olson
on a
the apparent
which included
theo-
Appellee’s
leave
vice-president
of absence.
ry
of liability.
as a basis
industry
testified
em-
the securities
ployees
appeal appellant
of absence
cannot
that the
leave
status
On
asserts
dis-
lawfully engage
erred in
securities transactions
trict court
submit her
Appellant,
requested special
and are
considered terminated.
verdict form
it is un
Inc.
629 F.2d
Appellee
asserts
v.
Cir.),
denied,
(2d
address this
cert.
449 U.S.
for this court to
necessary
Although Myz- the Third has read 175, Cir.1981), rand, (3d 649 F.2d 180 cert. position that 1427, v. Fields as for the denied, 938, el 455 U.S. 102 S.Ct. 71 supplants common in some instances 20 § L.Ed.2d 648 The First Circuit has Brothers, agency principles, law Rochez 20(a) pre recently held that does not “[§] Rhoades, 880, (3d F.2d 885 Inc. v. 527 liability assertion clude the —based Cir.1975), we believe the Second Circuit’s ‘apparent authority’ common law notions of The Sec- interpretation corporation misrepre more accurate. —against a for the has that common important ond Circuit of an officer.” In Re sentations “assumfed] Inc., apply principles agency Management, Financial 784 Atlantic (1st Cir.1986). Second, 29, an liability 35 impose F.2d Seventh, Fourth, Fifth, Sixth, he and Tenth agent’s deceit committed in the business held Marbury have that federal securities appointed carry out.” Circuits was Baehler, (the 20(a) Metge In 762 person’ liable.” v. F.2d Act of 1934 1. Section Securities —, Cir.1985), denied, (8th Act) pertinent part: U.S. provides in 621 cert. 798, (1986), 88 774 this court 106 S.Ct. L.Ed.2d who, (a) Every person directly or indirect- language approving a district cited this any person any provi- ly, controls liable under two-pronged test court’s formulation of a regula- chapter or of this or of rule sion "controlling person" liability of a determine jointly and thereunder shall also be liable tion Baehler, Metge v. court found lender. this severally extent as such with and to the same controlling person evidence lia insufficient person any person to whom controlled court, however, bility. This reversed liable, person unless such controlled grant summary because it court’s good controlling person and did faith acted aiding an and abet found sufficient evidence of directly indirectly the act or induce Act, 10(b) ting violation under Section constituting of ac- the violation or cause acts court’s dismissal and also reversed the district tion. pendent of common law state law claims 78(t). § 15 U.S.C. expressly address the fraud. This court did not supplants common law § whether 20 Fields, 718, (8th issue of Myzel 738 v. F.2d 386 unwilling [Metge to read tire 951, ‘‘[w]e Cir.1967), denied, 88 S.Ct. cert. U.S. 390 ques implication deciding by v. Baehler as 1043, ] (1968), stated L.Ed.2d 1143 this court 19 appeal.” Paul F. Newton us on this tion before requiring interpreted "has that the Act been Bank, F.2d 630 v. Texas Commerce & Co. only discipline or influence some means of Cir.1980). (5th ‘controlling 1116 of actual direction to hold short
1323 preempt law does not common law “While the trial court has broad discre framing tion in principles recovery. interrogatories as a basis Hen special Henricksen, pursuant verdict 49(a), ricksen v. 640 F.2d 887 to Fed.R.Civ.P. ... this (7th Cir.), denied, discretion 454 102 does not cert. U.S. warrant withdraw ing from the (1981); 637 Paul valid theories of S.Ct. 70 L.Ed.2d F. recovery upon plaintiff Commerce, produced has Newton 630 & Co. v. Texas suffi Cir.1980); cient evidence.” (5th Ajax Marbury F.2d 1119 Hardware Manu facturing v. 629 F.2d Industrial Plants Corp., 569 181, 187 (2d Cir.1977)(reversible F.2d 716; Howerdd, 536 F.2d Holloway v. error to fail (6th Cir.1976); Burns, submit alternate v. 516 theories of Carras recov ery in Cir.1975); special forms). (4th F.2d Kerbs v. Fall See also Productions, Cutlass Industries, Inc. Bregman, River F.2d (10th Cir.1974). (2d Cir.1982) (discretion 682 F.2d of district court to frame verdicts agree We with those circuits that have “cannot be exercised a manner which held addressed the issue and that there is withdraws jury’s from the consideration a 20(a) believing no basis for “[§] theory [recovery] valid upon which a intended to narrow the remedies of custom- [party] produced has evidence”; sufficient brokerage ers of or to houses create novel numerous errors in verdicts consti governed defenses in cases otherwise error). tuted reversible agency principles. traditional On the con- trary 28(a), 78bb, specifical- case, U.S.C. In the contrary [§] instant *5 ly rights pro- enacts that the and appellee’s assertion, remedies recognizes Minnesota by vided the Act shall be in apparent addition authority a basis as [19]34 vicarious rights may all and remedies that liability. Under Minnesota law the ele equity.” exist at law or Marbury apparent authority ments of are as follows: Inc. v. 629 F.2d at principal The agent must have held the agency prin- “To utilize common law out having authority, as or must have ciples secondary liability to determine knowingly permitted agent the to act on violations of the securities acts does not behalf; furthermore, its party the deal expose corporations, employers, and other ing agent with the must have actual potential such defendants strict knowledge agent that the was held out agents all acts of their or cause them to principal having authority the such be agent’s insurers of their actions.” Paul permitted by or had principal been the Commerce, F. Newton & Co. v. Texas 630 behalf; act on the proof its of the F.2d at requirements 1119. “The familiar agent’s apparent authority must be of agency agent act ... within the ‘his principal, found in the of the apparent authority actual or serve to re- agent. the ” scope strict the principal’s liability.’ Barr-Nelson, Truck Crane Service Co. v. Id. Inc., (Minn.1983)(cita- 329 N.W.2d 826 omitted).
We now tion address assertion Vacura v. See also Haar’s failing Equipment, the N.W.2d district court erred 364 391 (Minn.1985). requested special law, submit her verdict form Under Minnesota apparent earlier, “[ajpparent only on has authority. authority As limited ef- noted only the district fect. It exists to those jury court instructed the on third liability scope two theories of sons who learn of the manifestation from employment apparent words or the conduct for which However, special responsible.” the submitted verdict Duluth Herald & News only Optical jury Plymouth asked the “Was Ronald Tribune v. 286 495, 498-99, acting Minn. N.W.2d scope employment within the with 176 555 (1970) (footnote omitted). Schroeder, plaintiff Miller Inc. when “The manifesta- & sent money]?” principal may directly tion of be made Olson the sums of [three 1324 pal, agent.” person, may be made to the not the Truck
to a third
Crane Service
Barr-Nelson, Inc.,
by signs,
advertising, by Co. v.
329 N.W.2d
community,
(Minn.1983)(citation omitted).
826
agent
authorizing the
to state that he
“[A]s
[or
holding
prerequisite to
that defendant’s
by continuously
is authorized or
em-
she]
Minn,
agent
acting
within his
au
agent.”
286
176
ploying
thority,
point
one must
to some conduct on
(citation
emphasis
at 556
omit-
N.W.2d
* * * which,
of defendant
reason
ted).3
ably interpreted, would have caused the
instructing
We hold that after
plaintiffs to believe that [the defendant]
apparent authority
on
agent].”
consented to the actions of [the
erred
to submit a
court
Hagedorn v. Aid Association
Luther
apparent authority.
verdict
ans,
297 Minn.
N.W.2d
“
as submitted
‘created an unfair
(1973).
agent’s apparent authority
“An
re
jury’s returning
to the
a verdict
obstacle
statements, conduct,
sults from
lack
or
”
[appellant].’
Pro
favorable
Cutlass
care,
dinary
or other manifestations of the
ductions,
Bregman,
Barr-Nelson, Inc., supra, N.W.2d at this case the record establishes even part principal conduct on the
less of the might support finding Crane, Truck
authority. As the evi- does not establish affirmative
dence “an conduct
course constitute holding or even know- out permitting” engage in
ingly Olson to Id.
complained-of majority conduct. point fails to evidence
opinion sufficient
tending to show this course of “affirmative on the
conduct” set forth in 3 clearly footnote Truck Crane. sufficient under NANCE, Jr.,
Edgar Appellant, Lee BENSON,
Charles Director
Department of Correctional
Services, Appellee.
No. 85-1812. Appeals,
United States Court of
Eighth Circuit.
Submitted March
Decided