United States District Court, D. Kansas
ALEXANDER W. DUNLAP, Plaintiff,
KARIN NIELSEN, ET AL., Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.
Alexander W. Dunlap filed this breach of contract and
promissory estoppel action, alleging Defendants Karin
Nielsen, the Estate of Tyghe Nielsen (the
“Estate”), and Nielsen Capital Finance, LLC
(“NCF”) refused to pay amounts due on two
promissory notes signed by Tyghe and Karin Nielsen, in their
individual capacities, and/or as members of
NCF.After this Court granted Defendants summary
judgment on Plaintiff's promissory estoppel claim, the
parties tried the breach of contract claims to the Court on
March 28, 2018.
close of Plaintiff's presentation of evidence, Defendants
orally moved for judgment on behalf of Karin because there
was no evidence that she was a party to any contract with
Plaintiff. The Court declined to render any judgment until
the close of the evidence pursuant to Fed.R.Civ.P. 52(c) and
took the motion for judgment under advisement. The Court also
took Defendants' objections to Plaintiff's exhibits
1-14, 26, and 36-41 under advisement. After considering the
arguments, evidence, and testimony presented by the parties,
the Court now issues its findings of fact and conclusions of
law pursuant to Fed.R.Civ.P. 52(a). For the reasons explained
in detail below, the Court overrules Defendants'
objections to Plaintiff's exhibits and grants judgment in
favor of Defendants.
Findings of Fact
Court previously set forth a detailed statement of
uncontroverted facts in ruling on Defendants' motion for
summary judgment. The Court incorporates the stipulations
set forth in the Pretrial Order and in the Summary Judgment
Memorandum and Order (“SJO”) to the extent they
are relevant and are not explicitly recited herein.
and Karin Nielsen were married for over nine years preceding
his death. Around 2009, Tyghe was diagnosed with cancer. By
2012, Tyghe was unable to work at his occupation as a
physician. Around September 17, 2013, Tyghe formed NCF, with
him as its sole member.
and Plaintiff were former colleagues at a hospital in
Jonesboro, Arkansas. They became friends after working
together for several years. They maintained their friendship
even after Tyghe moved to Kansas in 2010.
about October 28, 2014, Plaintiff Alex Dunlap loaned $150,
000 to NCF. On or about November 27, 2014, Plaintiff made a
$50, 000 loan to NCF. Both loans were memorialized with
documents that contained two signatures, one was Tyghe's
and the other purported to be Karin's.
died on December 3, 2015. On May 24, 2016, Dustin Wiemers,
one of Tyghe's creditors, filed a Petition for
Appointment of Special Administrator for the Estate of Tyghe
Nielsen in the District Court of Miami County, Kansas,
Probate Section under case number 2016-PR-000046 (the
“Probate Case”). Weimers published a Notice to
Creditors of the May 24, 2016 Petition in the Kansas City
Star beginning June 2, 2016 and ending June 16, 2016,
and in the Miami County Republic beginning June 8,
2016 and ending June 22, 2016.
3, 2016, Karin recorded the Last Will and Testament of Tyghe
Lindberg Nielsen (“Tyghe's Will”) in the
Probate Case. On July 14, 2016, the Probate Court admitted
Tyghe's Will and appointed Karin as substitute Executor.
Tyghe's Will expressly states that it “shall not
extend the statute of limitations for payments of debts, or
enlarge upon my legal obligation or any statutory duty to pay
Analysis and Conclusions of Law
Court has subject matter jurisdiction under 28 U.S.C. §
1332. The Court also has personal jurisdiction over the
parties, and venue properly rests with this Court.
Objections to Exhibits
trial, Defendants objected to Plaintiffs exhibits 1-14, 26,
and 36-41 based on relevancy and the Court's in
limine ruling to exclude evidence of offers of
compromise or settlement pursuant to Fed.R.Evid. 408. The
Court sustains the objections to the extent these exhibits
were offered to establish liability based on any settlement
proposals. The Court overrules the relevancy objections and