had with Marquette Bank at that time -- interest on the value of the shares. Thus, with the November 8, 1996, agreed order and stipulation, Berens dismissed his claim for interest.
Berens tries to overcome his failure to provide for interest in the November 8, 1996, agreed order by claiming that the "value ascribed" to the stock was intended to include prejudgment interest. Berens contends that Marquette Bank is urging a narrow interpretation of the term "value" to exclude interest to support its claim that the sole intent of the parties in entering the agreed order was to hold Marquette Bank to the ultimate valuation of the shares, exclusive of any interest. Berens argues that even if the court accepts that this was Marquette Bank's belief, "the Court should not read the Bank's subjective belief into the document." (Pl.'s Reply in Supp. of Mot. to Alter or Amend J. at 10.) To the contrary, the document actually reflects Marquette Bank's belief because it says nothing about interest. It is Berens who asks the court to read his subjective belief into the document.
Moreover, Berens' contention that the term "value" encompasses interest is implausible. Throughout briefing on the Comptroller's motion for summary judgment, the parties spoke of the value of Marquette Bank stock in terms of how much each share was worth. The materials in the administrative record used "value" in the same context. The appraised value of each share, according to the Comptroller, was $ 13,033.52; that is, each share was worth $ 13,033.52. The Comptroller's appraisal of Marquette Bank's stock was based on other measures of value -- adjusted book, market, and investment value -- designed to determine the worth of a share of stock. None of these discussions included any type of interest as an element of value. See also Yabsley, 644 F. Supp. at 697 (the term "value" as used in section 215a does not encompass interest).
In addition, in his complaint, Berens referred to the value of his shares as what his shares were worth; that is, what the price per share should have been. Also in his complaint, Berens distinguished value from interest. In asking for relief, Berens asked that the court find that the value of Berens' stock was higher than the Comptroller appraised it to be; direct Marquette Bank to pay interest on the value of the shares; and award Berens costs and attorneys' fees. (See Compl. at 5-6.) Thus, Berens himself recognized that value is different from and not inclusive of interest.
Furthermore, the fact that Berens mentioned interest explicitly in his complaint but failed to account for it in the November 8, 1996, agreed order indicates that interest was not meant to be included in the settlement between Berens and Marquette Bank. See Delta Mining Corp. v. Big Rivers Elec. Corp., 18 F.3d 1398, 1405 (7th Cir. 1994) (citation omitted) (following the principle of exclusio unius est exclusio alterius, meaning that "when certain matters are mentioned in a contract, other similar matters not mentioned were intended to be excluded").
The court is not in the position to second-guess what the parties intended by entering into their agreed order, particularly when the agreed order is not ambiguous. See Brekken v. Reader's Digest Special Products, Inc., 353 F.2d 505, 506 (7th Cir. 1965) (courts "cannot rewrite the contracts" that parties have made). Accordingly, the court agrees with Marquette Bank that Berens abandoned his claim for interest on the value of his shares by entering into the November 8, 1996, agreed order settling and dismissing with prejudice his claims against Marquette Bank without explicitly providing for an interest award.
Because Berens has not shown that he is entitled, by statute or common law, to an award of prejudgment interest, and because Berens dismissed with prejudice his claim against Marquette Bank for interest on the value of his shares, Berens is not entitled to interest on the value of his shares.
For the foregoing reasons, the court denies plaintiff Mark H. Berens' motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e).
Date: MAY 22 1997
JAMES H. ALESIA
United States District Judge
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