                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

___________

No. 97-1396
___________

Stockmen's Livestock Market, Inc.,     *
                                       *
            Appellee,                  *
                                       *   Appeal and Cross-Appeal from
      v.                               *   the United States District Court
                                       *   for the District of South Dakota
Norwest Bank of Sioux City, NA,        *
                                       *
          Appellant.                   *
___________

No. 97-1397
___________

Stockmen's Livestock Market, Inc.,     *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Norwest Bank of Sioux City, NA,        *
                                       *
            Appellee.                  *

                                  ___________

                            Submitted: November 19, 1997
                                Filed: February 6, 1998
                                 ___________

Before BOWMAN, BRIGHT and MURPHY, Circuit Judges.
                                      ___________

BRIGHT, Circuit Judge.

       Stockmen's Livestock Market ("Stockmen's") filed this action against Norwest
Bank of Sioux City, NA (“Norwest”), alleging that Norwest defrauded and deceived
Stockmen's by characterizing Norwest's lending and banking relationships with D&R
Feedlots, Inc. ("D&R") as "satisfactory," and by breaching its promise to honor one of
D&R's nonsufficient funds (“NSF”) checks. Stockmen's also claimed that Norwest
converted funds "belonging to" Stockmen's when Norwest placed a hold on D&R's
checking account. The jury returned a verdict in favor of Stockmen's in the amount of
$620,404.04 in compensatory damages and $75,000 in punitive damages. The district
court denied Norwest's motion for judgment as a matter of law.

       On appeal from the adverse judgment (No. 97-1396), Norwest argues that the
evidence fails to support the jury's verdict and that the court erred in giving certain jury
instructions. In its cross-appeal (No. 97-1397), Stockmen's argues that the district
court erred in failing to award post-verdict, pre-judgment interest on the punitive
damages award. We affirm the jury's verdict, in part, with respect to fraud and deceit
and reverse with respect to conversion and promissory estoppel. Furthermore, we
affirm the award of punitive damages. On the cross-appeal, we reject Stockmen's'
claim for any interest on punitive damages before the district court's entry of judgment.

I.     BACKGROUND

       Gail Sohler operates Stockmen's, a livestock sales barn. Don Foreman operated
as a cattle broker doing business as D&R. D&R purchased mainly "fat cattle"--those
ready for slaughter--and then re-sold the cattle to slaughterhouses, including Iowa Beef
Processors ("Iowa Beef").



                                            -2-
       D&R had a $2.4 million line of credit at Norwest, which D&R initially obtained
to finance cattle buying. By the time the transactions in dispute occurred, D&R had
fully extended its line of credit. D&R financed its ongoing business transactions by
floating checks. Specifically, D&R purchased livestock by writing a check on the day
of purchase (the "fat cattle" sales at Stockmen’s were on Wednesdays). Stockmen's
would then hold D&R's checks until the following Monday when it deposited checks
received from the other feedlots that had also purchased “fat cattle.”1 During that
several day period, D&R would resell the livestock to a slaughterhouse and then
deposit the slaughterhouse’s check in its bank account.

        Between 1988 and February of 1994, D&R had issued a number of NSF checks.
By October 20, 1992, the problem had escalated to a level that caused Norwest to
notify D&R that Norwest would no longer honor any NSF check from D&R. D&R
had exhausted its line of credit in September, 1993, prior to the transactions in question
in February, 1994. On January 1, 1994, Norwest downgraded D&R's credit rating from
a 4 to a 4EW, an early warning classification. Mike Rickert, a Norwest loan officer in
the agriculture department, had managed D&R's account since late 1990.

       On February 1, 1994, Gail Sohler, the owner of Stockmen’s, learned that D&R's
checks to at least one other livestock barn had been returned NSF. Sohler directed his
office manager, Gary Stevens, to call the Livestock Board of Trade2 in Kansas City to
get an update on D&R. Before Stockmen's obtained a further credit check, Stockmen's
sold D&R 476 head of cattle on February 2, 1994, and obtained a check from D&R for
the full purchase price, $405,324.52. D&R took immediate possession of the cattle and


      1
      All of the other feedlots submitted their checks by mail, following the sale.
Only D&R submitted its checks on the day of sale.
      2
      The Livestock Board of Trade, as a branch of the Livestock Marketing
Association, conducts credit checks on customers for members of the Livestock
Marketing Association.

                                           -3-
sent at least 433 head to Iowa Beef for slaughter. Stockmen's deposited the
$405,324.52 check in its local bank on February 7. Tr. (vol. I) at 111, 114.

       On February 3, Stevens called the Livestock Board of Trade to inquire about
D&R's credit status. Joyce Knorr, a business information officer for the Livestock
Board of Trade, testified that after Stevens' inquiry, she called Rickert at Norwest.
Knorr further testified that Rickert informed her, according to Knorr's notes of the
conversation, that D&R's checking account fluctuates from zero to a high six-figure
amount and that Norwest considered the checking account "satisfactory." Tr. (vol. II)
at 286-87. With respect to D&R's line of credit, Knorr testified that Rickert informed
her that D&R had a "revolving line of credit to a low seven figure, there was [sic]
outstanding funds on the account" and the account was "satisfactory." Id. at 287.
Knorr testified that she immediately relayed this information to Stockmen's.

      Rickert in his trial testimony denied telling Knorr that funds were available on
D&R's line of credit. Rickert testified he told Knorr the account was "satisfactory"
because he believed the credit was fully secured. During this conversation, Rickert did
not indicate that D&R had "maxed out" its line of credit or that D&R had written
several NSF checks.

      On the same day, February 3, Norwest mailed a notice of security interest,
signed by loan officer Rickert, to the slaughterhouses doing business with D&R, which
included Iowa Beef. The notice of security interest required the slaughterhouses to
make all further checks from D&R’s sale of cattle payable jointly to D&R and
Norwest.

      On February 9, Foreman purchased 251 head of cattle from Stockmen's, paid for
them with a check in the amount of $215,079.52 and took delivery. On February 11,
Stockmen’s received notice from Norwest that D&R did not have sufficient funds to
cover the $405,324.52 check. At 11:20 a.m. that day, Stevens (office manager for

                                          -4-
Stockmen’s) called Rickert at Norwest regarding the $405,324.52 NSF check. Stevens
testified that Rickert told him that there had been a cash flow problem and that the
check would be good if Stevens resubmitted the check. Rickert testified he told
Stevens that D&R previously had cash flow problems and to rerun the check, but
denied telling Stevens the check would be good. Rickert and Stevens did not discuss
D&R's $215,079.52 check for the February 9 livestock purchase.

       Sometime after noon on February 11, Rickert conducted a drive-by inspection
of D&R's feedlot, and counted 300 cattle rather than the 1800 counted at the January
collateral inspection. At 4:20 p.m. that afternoon, Norwest placed a legal hold on
D&R's account. The legal hold allowed Norwest to exert complete control over the
account.

       On February 12, Rickert and his supervisor, Don Vaudt, met with Foreman.
Rickert and Vaudt evaluated the available records in an attempt to determine the status
of D&R's finances, and examined D&R's bank statements for the previous six months
in an attempt to determine what happened to the 1500 missing head of cattle. Norwest
asserts that it first learned at this meeting that livestock barns were waiting six to eight
days before presenting D&R's checks. At trial, Foreman testified that Rickert and
Norwest had known since sometime in 1993 that the sales barns routinely held D&R's
checks.

      On February 14, Stockmen's deposited D&R's check for $215,079.52 (for the
February 9 livestock purchase), along with the returned $405,324,52 check. Norwest
terminated D&R's line of credit on February 17. Norwest returned D&R's checks to
Stockmen's in the amounts of $405,324.52 and $215,079.52 marked "account closed."

       Stockmen's originally brought suit in South Dakota state court against Norwest.
Norwest timely removed the case to federal district court. After five days of trial, a
jury found for Stockmen's on each of the four theories of recovery: conversion,

                                            -5-
promissory estoppel, common law fraud, and statutory deceit, and awarded Stockmen's
$620,404.04 in compensatory damages and $75,000 in punitive damages. The district
court denied Norwest’s motion for judgment as a matter of law, as well as the motion
by Stockmen’s for pre-judgment, post-verdict interest on the punitive damages award.
Both parties timely appealed.

II. DISCUSSION

       The standard of review of the denial of a motion for judgment as a matter of law
is de novo. Lamb Eng’g & Constr. Co. v. Nebraska Pub. Power Dist., 103 F.3d 1422,
1430 (8th Cir. 1997). In the present case, the district court reviewed Norwest’s motion
for judgment as a matter of law under South Dakota law, which corresponds with South
Dakota’s standard for reviewing a motion for directed verdict. Specifically, the district
court stated that it reviews motions for judgment as a matter of law by:

      view[ing] the evidence in a light that is most favorable to the non-moving
      party and giv[ing] that party the benefit of all reasonable inferences that
      fairly can be drawn from the evidence. When viewed in this light, if there
      is any substantial evidence to sustain the cause of action or defense, it
      must be submitted to the finder of fact.


Weiszhaar Farms, Inc. v. Tobin, 522 N.W.2d 484, 492 (S.D. 1994) (internal citations
omitted). This court has articulated a similar standard for reviewing a sufficiency of
the evidence challenge. That standard requires that a jury verdict be affirmed "unless,
viewing the evidence in the light most favorable to the prevailing party, we conclude
that a reasonable jury could have not found for that party." Chicago Title Ins. Co v.
Resolution Trust Corp., 53 F.3d 899, 904 (8th Cir. 1995) (citation omitted).




                                          -6-
       A.     Conversion

       To recover on its claim for conversion, Stockmen's had the burden of proving (1)
that Stockmen's had an ownership interest or possessory right in the deposits in D&R’s
account; (2) that Stockmen’s' interest in D&R’s deposits was superior to Norwest’s
interests; (3) that Norwest’s exercise of dominion or control over D&R’s deposits was
inconsistent with Stockmen's’ possessory rights in the deposits; and (4) that Stockmen's
suffered a loss. We conclude that the judgment on the conversion theory must be
reversed because Stockmen’s cannot demonstrate that it had an ownership or
possessory interest in D&R’s account at the time of Norwest's alleged conversion.

        In Meyer v. Norwest Bank Iowa, Nat’l Ass'n., 112 F.3d 946, 948 (8th Cir.
1997), this court reviewed a similar conversion claim made by a different livestock
sales company, Wagner Livestock Sales Company (“Wagner”), against Norwest
relating to D&R’s account. In Meyer, Wagner argued that because it had a property
interest in the cattle it sold to D&R, it also had a traceable interest in the proceeds from
D&R’s resale of the cattle to Iowa Beef, which D&R deposited into its checking
account. Id. at 950. However, we stated that Wagner’s “ability to trace the funds into
the account before February 11, 1994 is not sufficient to establish an ownership or
possessory interest in those proceeds.” Id. Rather, we stated that Wagner must show
that it had "an ownership or possessory interest in the account at the time of the alleged
conversion." Id. (citation omitted). To make this determination, because D&R’s
account contained commingled funds from several different sources, we applied the
lowest intermediate balance rule. Id. at 950-51. "Under the lowest intermediate
balance rule, it is assumed the traced proceeds are the last funds withdrawn from a
contested account.” Id. at 951 (citation omitted). “Once the traced proceeds are
withdrawn, however, they are treated as lost, even though subsequent deposits are
made into the account.” Id. In Meyer, this court ultimately concluded that Wagner
could not show an ownership or possessory interest in any bank account funds


                                            -7-
deposited before February 9 because D&R's account had a negative balance on
February 9. Id.

       Applying the lowest intermediate balance rule to the present case, we conclude
that Stockmen's cannot show a property interest in D&R's account on February 11, the
date Norwest placed a legal hold on D&R’s account. D&R deposited two checks from
Iowa Beef (for cattle originally obtained from Stockmen’s) on February 2 and February
3. However, on February 4, D&R’s account had a negative balance of $191,298.77.
Furthermore, on February 3, 7, and 9, D&R deposited a total of six checks received
from Iowa Beef.3 Nevertheless, on February 9, D&R’s account had a negative balance
of $648,462.33. In light of D&R's negative account balances following the deposits
of Iowa Beef's checks, we conclude that under the lowest intermediate balance rule,
Stockmen’s cannot show an ownership or possessory interest in D&R’s account at the
time of the alleged conversion. Accordingly, we conclude that a jury could not have
reasonably determined that Norwest converted funds in which Stockmen's had an
ownership or possessory interest.

      B.     Promissory Estoppel

      Based upon the evidence presented at trial, the district court limited the
promissory estoppel claim to the alleged assurances by Rickert on February 11 that the
$405,324.52 check would be honored. Add. at 11. Within hours after Rickert’s
alleged assertions, Norwest placed a legal hold on D&R’s account.



      3
        By all accounts, the record of D&R’s deposits and withdrawals presents a
confusing picture. The record appears to show many deposits from Iowa Beef during
this time period. However, because Norwest has asserted that only the eight checks
mentioned above related to the cattle purchased at Stockmen’s and Stockmen’s did not
challenge that assertion, we assume that only these checks are relevant to the
conversion issue.

                                         -8-
      In its instructions to the jury, the district court explained that to establish
promissory estoppel, Stockmen's had the burden of establishing the following elements:

      (1)    the detriment suffered in reliance must be substantial in
             an economic sense;
      (2)    the loss to the promisee must have been foreseeable
             by the promisor; and
      (3)    the promisee must have acted reasonably in justifiable
             reliance on the promise made.

Id. at 11-12 (citation omitted).

       Both parties focus primarily on the issue of whether Stockmen’s can show
detrimental reliance upon Rickert’s assertions. Stockmen’s contends that Rickert's
assurances to Stevens (office manager for Stockmen's) on February 11, relating to the
status of D&R's account caused Stockmen’s to forebear from immediately presenting
the check to Norwest on February 11 and from pursuing some other course of action
to secure actual payment for the $405,324.52 NSF check.

      We conclude, however, that Stockmen’s has failed to identify any available
course of action on February 11 that would likely have produced actual payment on the
$405,324.52 check before Norwest placed a legal hold on the account later that
afternoon. At most, a five-hour time period existed between Rickert's telephone
conversation with Stevens and Norwest's decision to place the hold on D&R's account.
The record shows that one day earlier, on February 10, Norwest returned several NSF
checks including the $405,324.52 NSF check to Stockmen's. Had Norwest honored
these NSF checks, D&R's account would have reflected a negative balance of over
$600,000. The record further shows that D&R's account balance for February 10
amounted to only $27,846.81, and did not at any time thereafter contain sufficient




                                         -9-
funds to cover the $405,324.52 check. Finally, the record shows that no checks were
paid out on the checking account after February 10.

       Stockmen's argues that it need not show the availability of a legal remedy to
establish detrimental reliance. While we agree that detrimental reliance does not
necessarily require a showing of an available legal remedy, Stockmen's nevertheless
must establish that Norwest's assertions caused Stockmen's to detrimentally alter its
position. Therefore, Stockmen's had the burden of showing the existence of some
available option at 11:30 a.m. (the time of Rickert and Stevens' telephone conversation)
that could have produced payment of the $405,324.52 NSF check, and that the option
did not exist five hours later when Norwest placed a legal hold on the account.
Accordingly, we conclude that a jury could not have reasonably determined that
Stockmen’s established detrimental reliance based upon Rickert's February 11
conversation with Stevens.

      In addition, even if a reasonable jury could have determined that Stockmen's
detrimentally relied upon Rickert's statements, we conclude that Rickert's assertions to
Stockmen’s on February 11 did not amount to a promise upon which Stockmen’s could
have reasonably relied. In Garret v. Bankwest, Inc., 459 N.W.2d 833, 848 (S.D.
1990), sub. app. sub nom., Bankwest, N.A. v. Groseclose, 535 N.W.2d 860 (S.D.
1995), the South Dakota Supreme Court stated, "[w]hen the exact nature of the
representations . . . are disputed, the issue of estoppel should be presented to a fact
finder." At oral argument, Stockmen’s asserted that the exact nature of Rickert’s
statements to Stevens on February 11 are in dispute. Stockmen’s maintains that Rickert
told Stevens that “We'll make [the check] good.” After reviewing Stevens’ trial
testimony, however, we determine that no support exists for Stockmen’s' position
relating to what Rickert stated. Specifically, at trial Stevens repeatedly testified that
Rickert merely stated that "there was no problem" with D&R’s check and that Rickert
believed the check would be "good" if Stockmen’s re-deposited the check. Tr. (vol.
II) at 339-41.

                                          -10-
       Accordingly we conclude that despite giving Stockmen's the benefit of all
inferences from Stevens' testimony, Rickert's statements to Stevens on February 11 did
not amount to a promise. Rather, Rickert's statements constituted nothing more than
an equivocal assessment of the likelihood that the check would be honored. See
Garrett, 459 N.W.2d at 848-49 (stating that a collection of "vague, uncertain and
unsettled" statements does not constitute a promise); United States v. Gerth, 991 F.2d
1428, 1434 (8th Cir. 1993) (providing that "[a] promise is an assurance from one party
that performance will be rendered in the future, given in a manner that the other party
could rely on it").4

      C.     Common Law Fraud and Statutory Deceit

      The elements for common law fraud and statutory deceit are essentially identical
under South Dakota law. The essential elements of common law fraud under South
Dakota are:

      That a representation was made as a statement of fact, which was untrue
      and known to be untrue by the party making it, or else recklessly made;
      that it was made with intent to deceive and for the purpose of inducing the
      other party to act upon it; and that he [or she] did in fact rely on it and
      was induced thereby to act to his [or her] injury or damage.


      4
        Stockmen’s asserts that Norwest failed to argue to the district court that its
assertions did not amount to a promise and therefore should not be allowed to present
it on appeal. Upon review of the record, however, we conclude that even though
Norwest did not specifically challenge the existence of a promise to the district court,
that Norwest did make a general argument that Stockmen’s promissory estoppel claim
was not supported by the evidence. Norwest did not present any new evidence on
appeal. Moreover, both parties argued this issue on appeal. Under these
circumstances, we will consider Stockmen’s argument that its alleged assertions did not
amount to a promise. See Digi-Tel Holdings, Inc. v. Proteq Telecomm., 89 F.3d 519,
523 n.6 (8th Cir. 1996); Meyer, 112 F.3d at 950 n.2.

                                         -11-
Dahl v. Sittner, 474 N.W.2d 897, 900 (S.D. 1991) (quoting Northwest Realty Co. v.
Colling, 147 N.W.2d 675, 683 (S.D. 1967). Section 20-10-1 of South Dakota's
Codified Law, which governs actions for deceit, provides: "One who willfully deceives
another, with intent to induce him to alter his position to his injury or risk, is liable for
any damage which he thereby suffers." S.D. Codified Laws § 20-10-1 (Michie 1995).
Acts constituting deceit include, inter alia, "[t]he suppression of a fact by one who is
bound to disclose it, or who gives information of other facts which are likely to mislead
for want of communication of that fact . . . ." S.D. Codified Laws § 20-10-2(3) (Michie
1995).

       In light of the similarities between the fraud and deceit theories, we will discuss
both issues together. Under both theories, we must first determine whether sufficient
evidence in the record supports the jury's conclusion that Norwest intentionally or
recklessly mislead Stockmen's by making a false statement of fact or by suppressing
facts that Norwest had the duty to disclose.5 Joyce Knorr, a representative from the
Livestock Board of Trade, testified at trial that on February 3, Rickert told her: (1) that
Norwest deemed "satisfactory" D&R's checking account and that the account had funds
available; and (2) that D&R had a revolving line of credit to a low seven figure, with
outstanding funds, that "rolls daily with extensive usage," which Norwest also deemed
"satisfactory."6

     Norwest argues that Rickert's statements to Knorr concerning the status of
D&R's checking account were true. In the past, Norwest explains, D&R’s cycles of

       5
       Unlike Stockmen's’ promissory estoppel claim, Stockmen’s’ fraud and deceit
claims are not limited to Rickert's alleged assertions to Stevens on February 11.
Rather, these claims include Rickert's alleged statements to the Livestock Board of
Trade on February 3.
       6
      Knorr testified that she relayed to Stockmen's everything Rickert stated in their
conversation. Furthermore, Rickert testified that he expected creditors to rely on the
information he provided Knorr.

                                            -12-
low cash flow had either resolved themselves or Norwest had extended additional
credit. Therefore, Norwest argues that it did not believe D&R's account showed any
sign of default. Norwest denies that Rickert told Knorr that D&R had funds available
on its line of credit. Norwest concedes that D&R did not have any credit available and,
in fact, had been "maxed out" for months. Nonetheless, Norwest asserts that it
considered D&R's line of credit "satisfactory" because D&R's interest payments were
current, D&R did not default under the terms of its loan, and Norwest's collateral levels
appeared to be more than adequate.

       On our review of the record, we determine that sufficient evidence exists for a
jury to reasonably conclude that Norwest provided a misleading report of D&R's
financial status. According to Knorr's testimony, Rickert stated that D&R had funds
available on its line of credit, Tr. (vol. II) at 287, which Norwest concedes D&R did
not have. Tr. (vol. I) at 169, (vol. II) at 181-83. Furthermore, with respect to Rickert's
characterization of D&R's checking account and line of credit as "satisfactory," the
record shows that Rickert signed the notice of security interest on the same day he
spoke with Knorr. As previously stated, the notice of security interest required the
slaughterhouses, including Iowa Beef, to make all further checks from D&R’s cattle
sales payable jointly to D&R and Norwest. In fifteen years of doing business with
D&R, Norwest had never before sought this type of security interest. This evidence
bears on whether or not Rickert falsely or recklessly mislead Knorr. The jury could
reasonably conclude that issuing the notice of security interest would be unnecessary
if D&R's checking account and line of credit were actually "satisfactory."7 See


      7
        Moreover, the jury had before it the strong testimony of Don Scholten, one of
Stockmen's experts, who testified that D&R’s account should not have been deemed
"satisfactory" for the following reasons:


      1)     D&R lacked liquidity and operated exclusively on borrowed funds;
      2)     D&R was uncooperative with Norwest in handling past cash flow

                                          -13-
Weiszhaar Farms, Inc., 522 N.W.2d at 492 (stating that the jury’s verdict should
receive “all reasonable inferences that fairly can be drawn from the evidence”) (citation
omitted).

        In addition to these false statements, Norwest also failed to disclose information
that it had a duty to disclose. At trial, Rickert testified that when individuals call the
bank to seek account information, he may decline to provide any information.
However, Rickert recognized that when he does answer such inquiries, he has the duty
to give them honest and accurate information. Tr. (vol. II) at 227.

       Knorr's two primary questions to Rickert were: Is D&R's checking account
satisfactory? Does D&R Feedlots have the ability to purchase cattle? Tr. (vol. II) at
225. In response to Knorr's questions, Rickert did not disclose Norwest's January
decision to add an "early warning" designation to D&R’s risk rating or the fact that
D&R had a long record of overdrafts during the past year.8 We conclude that a jury


             shortages;
      3)     D&R had cash flow shortages every year;
      4)     D&R's records were poor;
      5)     D&R’s financial statements substantially underestimated the
             accounts payable; and
      6)     D&R had a pattern of overdrafts.

See Tr. (vol. III) at 406-407.
      8
      Norwest argues that it had no duty to disclose the early warning designation or
D&R's history of NSF checks. Norwest explains that the early warning designation
"does not really mean much." Norwest further explains that in the past D&R would
always satisfy NSF checks.


      “What one is bound to disclose is a fact question depending upon the particular
circumstances of each case.” Moss v. Guttormson, 551 N.W.2d 14, 16 (S.D. 1996).

                                          -14-
could have reasonably concluded that the nondisclosure of these facts contributed to
a misleading assessment of D&R's ability to purchase cattle, especially in light of the
inaccurate statements previously mentioned.9

        We turn next to the issue of whether sufficient evidence exists to support the
jury's determination that Stockmen’s relied upon Norwest’s misrepresentations and that
such reliance caused Stockmen’s' injury. First, with respect to the $215,079.52 check
D&R used to make its February 9 purchase, Norwest argues that Stockmen's cannot
establish detrimental reliance because Gail Sohler, the owner of Stockmen’s, conceded
that receiving NSF checks from a buyer that were later made good would be no reason
to stop doing business with the buyer. Therefore, Norwest argues that if it had
disclosed its receipt of overdrafts from D&R, along with its experience that D&R
unfailingly made good on such overdrafts, that Stockmen's would have continued doing
business with D&R.

        Stockmen's maintains that it would have refused to sell more cattle to D&R if
Norwest had fully disclosed D&R’s financial status on February 3. Gail Sohler, the
owner of Stockmen's, testified at trial that he would not have allowed D&R to purchase
cattle by check on February 9 if Sohler had known of D&R’s financial difficulties. Tr.


We determine that a jury could reasonably determine that Norwest had a duty to
disclose this information to provide a complete and honest response to Knorr’s question
of whether D&R had the ability to buy cattle.
      9
        Stockmen’s also had the burden of proving that Norwest acted with the intent
to deceive. See S.D. Codified Law § 20-10-1 (Michie 1995). In light of all the
evidence in this case, especially Norwest’s decision to send notices of a security
interest to the slaughterhouses on the same day Rickert assured Stockmen’s that
D&R’s account was “satisfactory,” a jury could reasonably conclude that Norwest had
the intent to deceive Stockmen’s. See Commercial Credit Equip. Corp. v. Johnson, 209
N.W.2d 548, 551 (S.D. 1973) ("Questions of fraud and deceit are generally questions
of fact and as such are to be determined by the jury.").


                                         -15-
(vol. I) at 116-17.10 Accordingly, with respect to D&R’s February 9 check for
$215,079.52 we conclude that sufficient evidence exists to support the jury’s finding
that Stockmen’s detrimentally relied upon Norwest’s fraudulent assertions.

       Next, we turn to the issue of whether sufficient evidence in the record supports
the jury’s determination of detrimental reliance relating to the $405,324.52 check. This
issue presents a different question than the $215,079.52 check because Stockmen’s
sold the cattle to D&R and received the $405,324.52 check in payment before inquiring
with Norwest on the status of D&R's bank account. Thus, to establish detrimental
reliance, Stockmen’s needed to prove that it could have collected its debt owed by
D&R, represented by the NSF check of $405,324.52, if it had received accurate
information from Norwest about D&R's financial circumstances. We have examined
the record. Adequate evidence does not support a conclusion that Stockmen’s
demonstrated detrimental reliance relating to the $405,324.52 NSF check.11

       Stockmen's relies upon highly speculative evidence and assertions. The
$405,324.52 check arrived at Norwest on February 9 whereupon Norwest returned the
check to Stockmen’s because of insufficient funds in the account. Jt. App. at 91; Tr.
(vol. II) at 241-42. Furthermore, the record does not indicate that Stockmen’s could


      10
        Although Sohler somewhat discredited this testimony during cross-examination,
we conclude that a jury could reasonably conclude that Sohler would not have sold
cattle to D&R on February 9, if he would have known the full extent of D&R’s
financial difficulties.
      11
         The jury did not specifically find that Stockmen's established detrimental
reliance with respect to either of the two checks in question. However, the fraud and
deceit claims are the only claims remaining in this case and the jury's award of
compensatory damages equaled the amount of the two checks in question. We
therefore conclude that Stockmen's may only recover the amount represented by the
check for which it has established detrimental reliance upon Norwest's fraudulent
misrepresentations.

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have obtained payment on the check if Stockmen’s would have presented the check
directly to Norwest before February 9. The record shows that the ending balance in
D&R's account between February 3 and February 9 did not approach $405,324.52. Jt.
App. at 91. Only one piece of testimony appears to support Stockmen's' contentions.
Specifically, Rickert testified that at one point on February 8, D&R’s account had a
balance of approximately $520,000. Tr. (vol. III) at 568. We, however, conclude that
this argument relies on the assumptions that Stockmen's could have presented the check
at that moment in time and that no other checks required payment. The record supports
neither of these assumptions. In fact, more than $300,000 in D&R checks arrived at
Norwest on February 8. Jt. App. at 90-91. At all other times, the account contained
insufficient funds to pay the $405,324.52. Moreover, Norwest did not owe Stockmen's
any obligation to honor the presentation of D&R's check by Stockmen's before paying
any other check presented at about the same time.

       In addition, we do not consider persuasive the assertions by Stockmen’s that it
could have contacted Iowa Beef to reclaim the cattle or to obtain payment for the cattle.
The record shows that D&R delivered most of the cattle to Iowa Beef on February 2,
the day before Norwest's misrepresentations. See Tr. (vol. IV) at 748-56; Jt. App. at
322-53. The record also shows that Iowa Beef paid advances on the cattle deliveries.
See id. Based on the evidence in the record, we conclude that by February 3, the cattle
purchased at Stockmen's and the proceeds from those cattle were beyond any remedial
action by Stockmen's.

      D.     Jury Instructions

       In reviewing a jury instruction, this court must "determine whether the instruction
fairly and adequately states the applicable law when reading the instructions as a
whole." First Dakota Nat’l Bank v. St. Paul Fire and Marine Ins. Co., 2 F.3d 801, 813
(8th Cir. 1993) (citation omitted). If a district court errs in giving or not giving an


                                          -17-
instruction, that error must be prejudicial before the appellant is entitled to any relief.
See Walker v. AT&T Techs., 995 F.2d 846, 849 (8th Cir. 1993).

      Norwest argues that the district court erred, as a matter of law, in giving Jury
Instruction Nos. 11, 12, 16, 19, 20, 21, 24 and 26. Our ruling with respect to
conversion and promissory estoppel, however, moots Norwest’s challenges to
Instruction Nos. 11, 12, and 24. Furthermore, we reject Norwest’s remaining
challenges to Instruction Nos. 16, 19, 20, 21, and 26.

       With respect to Instruction Nos. 16 and 21, Norwest argues that these
instructions separately instructed the jury on claims for common law fraud and statutory
deceit, even though both claims are virtually identical. Norwest asserts that it thereby
suffered prejudice because Stockmen’s essentially had two separate opportunities to
prove the same case. We, however, find no authority that provides that giving both a
fraud instruction and a deceit instruction in the same case is per se error. Furthermore,
in the present case, the jury found in favor of Stockmen's on both claims. These
separate findings indicate that the jury considered the evidence and found against
Norwest on both fraud and deceit. These findings negate prejudice.

        With respect to Instruction Nos. 19 and 20, Norwest argues that these
instructions redundantly instructed the jury both on the elements of deceit and on
Norwest's obligations with respect to a credit inquiry, creating an impression that
Stockmen's asserted separable causes of action of deceit and for an improper response
to a credit inquiry. The verdict form given to the jury clearly indicates the theories of
recovery, which did not include a claim for an improper response to a credit inquiry.
We reject Norwest's argument as unsound.

      Finally, with respect to Instruction No. 26, Norwest argues that this instruction
improperly instructed the jury with respect to punitive damages, and conveyed the
impression to the jury that Norwest was "guilty of oppression, fraud, malice, willful

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and wanton misconduct, or reckless disregard of Stockmen's rights," rather than
instructing the jury of the need to separately make such findings.

       We first note that Instruction No. 26 reflects a pattern jury instruction taken
directly from South Dakota Civil Pattern Jury Instruction No. 35-01. Furthermore, we
reject Norwest’s contention that this instruction implies a court determination that
Norwest has acted improperly. Thus, Norwest cannot show prejudicial error in the jury
instructions.

      E.     Punitive Damages

       South Dakota law allows punitive damages "[i]n any action for the breach of an
obligation not arising from contract, where the defendant has been guilty of oppression,
fraud, or malice, actual or presumed . . . ." S.D. Codified Laws § 21-3-2 (Michie
1987). Establishing fraud and deceit in this case gives rise to punitive damages.
Norwest's objection to punitive damages rests wholly on its defense that conversion,
fraud and deceit must be dismissed. As we have observed, the fraud and deceit claims
stand, and therefore support the award of punitive damages.

       We have considered whether the punitive damages award should be reduced in
light of our determination that compensatory damages in the sum of $405,324.52
should be set aside. We observe that the award of punitive damages is reasonable
compared to actual damages. We may assume that the relatively low award of punitive
damages could reflect the jury's award of full compensatory damages claimed by
Stockmen's. Should we remand, a jury might increase or decrease the amount of
punitive damages. Either result could be justified. Rather than remand, we believe the
punitive damage award of $75,000, without interest, should be affirmed as fair and
reasonable.

      F.     Post-verdict, pre-judgment interest

                                         -19-
       In its cross-appeal (No. 97-1397), Stockmen's asserts a right to post-verdict,
pre-judgment interest on the punitive damage award. In this case, the jury returned its
verdict on June 19, 1995. However, the district court did not enter judgment on the
jury verdict for 299 days, until April 23, 1996.

      Stockmen's seeks interest on the punitive damages for this period. Stockmen's
bases its claim on state law, asserting that the amount of punitive damages became
known on June 29, 1995 and that known amounts should bear interest. See S.D.
Codified Law § 15-16-3 (Michie 1984) ("When a judgment is for the recovery of
money, interest from the time of the verdict or decision until judgment be finally
entered must be added to the judgment of the party entitled thereto.").

      The district court, however, applied section 21-1-13.1 of the South Dakota
Codified Law, which states, "[p]rejudgment interest is not recoverable on . . . punitive
damages . . . ." See S.D. Codified Law § 21-1-13.1 (Michie 1987 & Supp. 1997).
Stockmen's has shown no error in applying this specific statutory direction to punitive
damages. We reject Stockmen's' appeal on this issue.

III.   CONCLUSION

     For the reasons stated in this opinion, we affirm in part and reverse in part the
judgment in favor of Stockmen's and remand for the entry of a modified judgment
consistent with this opinion. Stockmen's may recover 60% of its costs and




                                         -20-
disbursements attributable to Norwest's appeal. Norwest may recover its costs and
disbursements attributable to the cross-appeal.

      A true copy.

            Attest:

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




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