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Wrong John Hoich?

John L. Hoich

President and Chief Executive Officer

Hoich Enterprises Inc

HQ Phone:  (402) 333-1919

Direct Phone: (402) ***-****direct phone

Email: j***@***.com


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Background Information

Employment History

Westside Community Schools

†Founder, Chairman and Owner


Advisory Council

Lakeside Hospital




Omaha Planning Board



Member of the Board of Managers

U.S. Grounds Maintenance , Inc.



University of Nebraska

Westside High School

Web References(41 Total References)

American Prairie Construction Co. v. Tri-State Financial, LLC: BANKRUPTCY | CIVIL PROCEDURE | CONTRACT - issues stayed by bankruptcy; no abuse not recusing, especially on untimely motion; claimed settlement contract questions St. Paul Lawyer Michael E. Douglas

injurylawtwincities.com [cached]

John Hoich, *
Tri-State Financial, LLC (TSF) and John Hoich (Hoich) appeal the district courts finding that TSF and Hoich were parties to a binding settlement agreement and Hoich breached the agreement and were jointly and severally liable to NCC in the amount of .5 million. For reasons discussed below, this opinion addresses only Hoichs claims on appeal, and we reverse the district courts judgment as to Hoich. In support of the post-petition financing motion, Hoich, an investor in both TSE and TSF, testified he had a net worth of to million and he could personally guarantee funds for the planned improvements, if his investment were given priority. Hoich clarified, however, he was only willing to guarantee funding for future improvements, and not for the payment of other creditors, adding he personally already had lost .5 million. Hoich represented TSF in the settlement discussions. Hoich and Rudeen continued settlement negotiations in a series of telephone conversations between Friday, June 18, through Sunday, June 20, 2004. Hoich was After Hoich spoke with Ruback and Jandrain, they decided Hoich would After Hoich spoke with Ruback and Jandrain, they decided Hoich would Hoich offered Rudeen this deal on the evening before the confirmation hearing, but it was not made clear who would provide the funds. The following morning, June 21, 2004, shortly before the hearing commenced, Rudeen called Hoich and accepted the offer. Hoich did not attend the June 21 hearing. Several other TSF representatives traveled from Omaha, Nebraska, to Sioux Falls, South Dakota, for the hearing, in the proceeding, Hall stated Strasheim did not represent Hoich, but it [was his] to confirm whether Hoich had agreed to be bound personally under the settlement agreement. Hoich did not contribute to these funds. TSF and Hoich declined to accept the tendered assignment and agreement against TSF and Hoich. binding and enforceable agreement which was breached by TSF and Hoich when they failed to perform. The district court awarded NCC .5 million in damages, plus prejudgment interest, for which TSF and Hoich were jointly and severally liable. The award was later reduced to ,025,000, plus interest, pursuant to a stipulation previously made by NCC. TSF and Hoich appealed the findings of the district court, and NCC cross-appealed. action was brought by NCC against TSF and Hoich. Consequently, this proceeding is stayed automatically as to the issues presented by TSF on appeal and the issues raised by NCC in its cross-appeal until further order by the bankruptcy court. We proceed with only those issues raised by Hoich. Hoich maintains the district court erred when it (1) denied Hoichs motion for recusal and disqualification; (2) found Hoich was a party to the June 21, 2004 agreement; (3) found Hoich personally guaranteed the June, 21, 2004 agreement; and After Hoich filed a motion asking the district judge to recuse himself, the district judge responded in an opinion thoroughly addressing Hoichs concerns. The judge admitted he erred in stating that settlements had been reached, and continued by resolving, they may or may not have been reached and the trial of this action will answer that question. American Prairie Const. Co. v. Tri-State Financial, LLC, No. Hoich now has the burden of proving the district court display[ed] a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky, 510 U.S. at 555. Hoich cannot meet this burden. Hoich filed his recusal motion on June 21, 2007, less than six weeks before trial. Hoich argues, because he was not a party to the bankruptcy proceedings, Hoichs counsel did not learn of the district courts opinions upon which his motion was based until June 3, 2007. However, Hoich played a prominent role throughout the bankruptcy proceedings and should have been monitoring the case status. The district court concluded Hoich was a principal in a settlement agreement formed between TSF, Hoich, Interstate, NCC, and TSE on June 21, 2004, in TSEs bankruptcy proceedings. See American Prairie Const. Co. v. Tri-State Financial, LLC, 529 F. Supp. 2d 1061, 1080 (D.S.D. 2007). In the alternative, the district court found Hoich made a personal financial commitment to guarantee the payment of the settlement proceeds. Id. at 1078, 1080. Hoich appeals each of these findings. 1. Guarantor Liability NCC did not claim, either in its complaint or at trial, Hoich was a guarantor of the settlement agreement. The district court held, sua sponte, Hoich was a guarantor. Hoich claims the district court erred by doing so, citing Armstrong Cork Co. v. Lyons, 366 F.2d 206, 208 (8th Cir. 1966) (quoting Sylvan Beach v. Koch, 140 F.2d 852, 861 not plead or pursue this guarantee claim to put Hoich on notice of the allegation as the The district court held Hoich made a personal financial commitment to Hoich did not sign a written contract to guarantee the settlement agreement. Hoich was not present at the June 21, 2004 hearing, and could not have made a personal financial commitment on the record. At no time during the hearing did any agent on behalf of Hoich expressly represent Hoich was guaranteeing the alleged settlement agreement. Hoich can only be liable if the alleged guarantee falls under one of the enumerated statutory exceptions. The district court declared, Even if not entered into the record, NCC agreed to part with the value of its claims, and did tender its claims, under circumstances such -13- as to render Hoich a guarantor. By then, NCC knew Hoich denied guaranteeing the alleged settlement. Second, there is no evidence Hoich agreed to answer for any obligation created between NCC and TSF. The district court stated, Hoich had, under oath, previously testified that he himself would make sure that cash would be available to TSF to pay its obligations. American Prairie, 529 F. Supp. 2d at 1077. This is an inaccurate statement of Hoichs testimony. Hoich agreed, in the bankruptcy proceeding, to provide funds to TSF for the sole purpose of assisting TSE in making planned -14- improvements to TSEs ethanol plant. Hoich then explicitly refused to guarantee payment to any other creditors. The district court continued, Without Hoichs participation, no settlement was possible, given the fact that TSF was an entity with no assets and no ability to pay anything. Id. The record suggests TSF did have assets and the ability to pay under the agreement because TSF later raised the .5 million for the settlement from investors other than Hoich. Neither the district court nor NCC identify any evidence to support the claim Hoich personally agreed to answer for TSFs obligations. Finally, because NCC did not part with anything of value on June 21, 2004, and because Hoich did not agree to be liable personally, the circumstances did not render Hoich the principal debtor. The exception to the writing requirement in S.D. Codified Laws 56-1-6 was not satisfied, and the district court erred in finding Hoich agreed, in writing or otherwise, to be a guarantor. 2. Principal Liability Our next inquiry is whether Hoich was a party to the settlement agreement. In its opinion, the district court declared, Hoich is liable as a principal in the settlement to bind Hoich on the record. American Prairie, 529 F. Supp. 2d at 1077. The district court concluded, Hoich caused and allowed Rudeen to believe that Jandrain had the authority to bind Hoich at the June 21, 2004, hearing. Hoich was himself at the settlement hearing, we must determine whether Hoich engaged in conduct which caused NCC representatives reasonably to believe, in good faith, and without negligence, Jandrain had authority to bind Hoich. days before the hearing on June 21, 2004, Hoich represented TSF in settlement negotiations with NCC representative Rudeen. Hoich was in close contact with other TSF representatives, including Ruback and Jandrain, throughout the negotiations. Hoich spoke to Ruback and Jandrain about what settlement figures Hoich was authorized to offer NCC, and after Hoich conferenced with Ruback and Jandrain, they On the evening of June 20, 2004, Hoich made the offer to Rudeen. Hoich told Rudeen he would try to raise the money, Hoich was committed to the deal, and .5 million was as high as Hoich and the other investors could go. Rudeen testified he did not know who the money would be coming from, and when asked if Hoich had guaranteed the money would be paid, Rudeen responded, I dont believe so. The following morning, June 21, 2004, shortly before the hearing commenced, Rudeen called Hoich and accepted the deal. After Rudeen accepted the deal, NCC attorney, Hall, discussed the terms of the agreement with representatives for TSF and Interstate, and summarized the terms on a note pad. Hoich was not present. Hoich did not ask anyone to represent him, Hoich did not notify anyone he would be sending an agent to represent his interests, and no one purported to be present as Hoichs representative. Once the terms of the settlement supposedly were established, the confirmation hearing commenced and Hall read the terms of the agreement on the record. Hall read the names of the parties involved, and listed Hoich, stating, who--its my continued, I believe that [Hoich] is in this deal but Im appearing here on behalf of Interestate [sic] Financial. In response Hall stated, I know that Mr. Strasheim does not represent John The complaint alleged Hoich was a party to the oral agreement made on June 21, 2004, because of Strasheims actions that day as agent for Hoich. Jandrain was never asked to confirm any representation of Hoich or whether Hoich had agreed to be bound personally under the settlement agreement. Hoich to the settlement agreement.4 South Dakota law dictates, Actual authority is such as a principal intentionally confers upon the agent, or intentionally or by want of ordinary care, allows the agent to believe himself to possess. S.D. Codified Laws 59-3-2. The record does not demonstrate Hoich gave Jandrain authority to act on Hoichs behalf, nor is there any evidence Jandrain believed he had such authority. Hoich to the settlement agreement, and Jandrain did so when Jandrain failed to object Rudeen admitted Hoich never told Rudeen, either during the Hoich. At trial when Hoichs counsel inquired of Rudeen, I asked you [at your deposition], well, did you understand Jim Jandrain was representing John Hoich at whether Jandrain had authority to bind Hoich to a .5 million settlement agreement. The established facts demonstrate: (1) Hoich did not tell NCC that Hoich intended to be personally liable under the agreement, (2) Hoich did not inform NCC that Jandrain was authorized to represent Hoichs interests at the confirmation hearing, (3) Hoich was not present when the terms of the agreement were drafted, (4) Hoich did not have counsel at the hearing when the other knew, or should have known, that an agent could not make Hoich a party to the oral agreement without a written document signed by Hoich. Hoich cites a significant Hoichs ostensible agent and in holding Hoich personally liable for the settlement agreement. D. Judicial Notice Hoich finally argues the district court erred in taking judicial notice of TSF business records and a book written by Hoich. During trial, the district court ordered different TSF members, including Hoich. The district court referenced this record in its opinion, stating, We also know that, based on the business records of TSF, Jandrain was the holder of a proxy given by Hoich as to the interests of Hoich in TSF. In other words, the proxy specifically authorized Jandrain to act as an agent for Hoich with the caption, Jim Jandrain (Johns CPA), John L. Hoich, and Doug Pugh (Real court found, John Hoich is not a babe in the woods. He is a very intelligent and enormously successful business person. . . . He is a friend of more than one President of the United States. He is a friend of Warren Buffet of Omaha, perhaps the most sophisticated business person in the world. Id. at 1078-79. Hoich gave Jandrain a proxy which authorized Jandrain to act as an agent for Hoich Hoich gave Jandrain a proxy which authorized Jandrain to act as an agent for Hoich from the document is Hoich, and eleven other TSF members, gave Jandrain a proxy Hoich had with Jandrain. be made after judicial notice has been taken.). While Hoich was present during trial and he knew the court requested TSF business records, Hoich did not have knowledge of the specific TSF documents which would be sent, nor did he know which documents the court would select for taking judicial notice. Thus, Hoich was not provided with advance notice that the court intended to take judicial notice of minutes from a TSF meeting. Hoich was also not provided with notice of the courts intent to a finding Jandrain was Hoichs agent and had authority to bind Hoich to a .5 million settlement agreement. III. CONCLUSION We affirm the district courts denial of Hoichs motion for recusal and disqualification. We reverse the district courts judgment that Hoich was a guarantor

Coach Koenig - Testimonials

www.coachkoenig.com [cached]

John L. Hoich, President and Founder, Hoich Enterprises, Inc.
Author, From the Ground Up---It's Not Just Business


John Lee Hoich
John Hoich President/CEO Office: 402-333-1919 Cell: 402-677-4848 Email: jhoich@hoich.com

Who wants to be a millionaire? - Gateway

unothegateway.com [cached]

"I put my faith in God first, my family second and business third," John L. Hoich, president of Hoich Enterprise Inc., told an International Campus Ministry audience Feb. 15.
Hoich spoke of how his faith has shaped his success as a father, husband and businessman and how it has helped him overcome years of struggle. "All my life was a struggle," Hoice said. Hoich grew up in Omaha with four sisters and one brother, who later died of a heart attack at age 21. He said not a day passed by that his father did not beat his mother and yell at him and his siblings. "I realized at 5 to 10 years old that my father was an alcoholic and he beat my mom every day," Hoich said. "I never knew any different and when I visited other friends' homes and saw their fathers did not act the same as my dad, I thought they were weird." Hoich's parents divorced when he was 10. His father died shortly thereafter. "That day, my life changed - I was no longer a boy," Hoich said. After his parents' deaths, Hoich was left head of the household and had to look after his siblings, a duty he said he continues to honor each day. He said he would have never gotten so strong if it was not for the help of his next-door neighbor, a minister named Miller, who was always there for him, encouraging him to be strong. "Some people would go kill others or themselves, but I told myself I had to be strong," Hoich said. He refused to give up and put himself on a path toward success by getting a job to help take care of his family. Hoich was able to put himself through college and graduate school at UNO. Devoted to his family, he helped his siblings become educated as well. "I raised my family," he said. "All I had to do was to give them what they didn't have and stay in their life. I tried to fix their problems." Hoich not only helped his own family, but others who came to him as well. "I always help people when they need me," he said. "My family as well as my friends are very important to me." "I love people, and I help people get out of bankruptcy and resolve their business problems. I fix things." Today, Hoich, a successful self-made millionaire and president of his own company, is a happy father of twin sons, Justin and Jeremy. Hoich said he doesn't forget his family, friends and especially his faith, the substance of his being. "I always thank God," he said. Hoich received the 2001 Community Service Family Award for his commitment to serving the community. An energetic man, Hoich serves on 29 boards for corporate and charitable organizations and enjoys working out and riding horses in his free time. He told the audience that his success did not happen overnight. He credits his success to mistakes he made as a young businessman with his lawn mowing business when he was 14 years old.

Omaha: A Victory in Middle America -- Grow Omaha - Economic Development Program - KKAR 1290 AM

www.growomaha.com [cached]

Omaha is a conservative city that still grows every year, says John Hoich, president of Hoich Enterprises.
“Omaha has had steady, 3 percent annual growth for 150 years,” he says. Hoich, who owns 800 apartment units in Omaha, says his units are 99 percent occupied. He says he is encouraged by the Omaha apartment market and plans to buy or build 200 more units by the end of the year.

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