UNITED STATES COURT OF APPEALS
Filed 1/7/97
FOR THE TENTH CIRCUIT
SONIC RESTAURANTS, INC.,
Plaintiff-Appellee,
v. No. 96-6193
(D.C. No. CIV-95-796)
MANFRED KRUGER; CHRISTINA (W.D. Okla.)
KRUGER,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendants Manfred and Christina Kruger appeal from the entry of
summary judgment holding them in breach of the parties’ “Termination of
Independent Contractor Services and Release of Claims” (termination agreement),
awarding plaintiff Sonic Restaurants, Inc. (Sonic) compensatory damages, and
enjoining future violations of the termination agreement. The district court relied
on a lengthy list of undisputed facts to uphold the validity of the termination
agreement, determine defendants’ breach thereof, and grant appropriate relief.
Upon de novo review, Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996), we
affirm for substantially the reasons stated in the district court’s orders of March
22 and May 29, 1996.
Most of the objections broadly stated in defendants’ appellate brief “lack
even rudimentary substantiation in factual argument and legal authority.”
Washington v. Department of Transp., 84 F.3d 1222, 1223 (10th Cir. 1996). We
shall therefore limit our discussion to the “discernible questions” raised regarding
lack of consideration, execution of the agreement under duress, and procedural
error on summary judgment. See id.
Defendants contend they were entitled to keep $15,000 in advances made
before the parties severed their relationship and, hence, plaintiff’s “forgiveness”
of this outstanding “debt” in the termination agreement did not constitute valid
consideration. This argument rests on an insupportable premise. The $15,000
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had been a matter of dispute between the parties--a dispute acknowledged and
settled by the very agreement defendants now attack by reassuming their
adversarial pre-agreement position. Countenancing such a challenge, by which
defendants seek to nullify a negotiated compromise essentially by reneging on it,
would effectively destabilize any agreement intended to settle disputed
obligations. Further, and in any event, defendants do not adequately support their
underlying position regarding the $15,000 with evidence, argument, and legal
authority.
Defendants also attack the termination agreement on the ground that
Manfred Kruger was under extreme duress at the time of its execution. However,
defendants fail to cite any evidence in the record to substantiate this conclusory
claim. Their reference to an affidavit executed months after the district court’s
decision is patently improper, see Aero-Medical, Inc. v. United States, 23 F.3d
328, 329 n.2 (10th Cir. 1994); Boone v. Carlsbad Bancorporation, Inc., 972 F.2d
1545, 1549 n.1 (10th Cir. 1992), and we will not sift through the record searching
for other, competent evidence to bolster their unsupported assertions of error, see
Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1540 n.3 (10th
Cir.), cert. denied, 117 S. Ct. 297 (1996).
Finally, defendants contend that the district court improperly adopted
plaintiff’s statement of undisputed facts. However, all we are told is that the
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seventeen facts in question “are contradicted by the Defendants’ evidence filed in
motions and 180 exhibits of evidence, like W-2's and payroll check stubs;
statements of witnesses and other documents relating to the employee status of
Manfred Kruger; relating to the circumstances of the signing of the Termination
Agreement of May 2, 199[5]; and the overall deception of [Sonic] with this
Termination Agreement and in this Termination Agreement of May 2, 1995.”
Appellants’ Opening Brief at 11. This catch-all record reference is plainly
inadequate from a procedural/evidentiary standpoint, see S.E.C. v. Thomas, 965
F.2d 825, 827 (10th Cir. 1992), and, more fundamentally, fails to provide this
court with specific, reasoned challenges to the various material facts relied on by
the district court. The only particular fact implicated by the reference concerns
Manfred Kruger’s employment status, which actually was never determined
in--indeed, was irrelevant to--the district court’s disposition. Rather, the court
merely recited the undeniable facts that defendants (1) conceded Mr. Kruger’s
status as an independent contractor in the termination agreement, and (2) later
took action contrary to this concession. To the extent defendants seek to attack
the termination agreement by recanting this concession and resurrecting the
employment-status dispute, they run afoul of the same principle discussed above
in connection with the advances. One may not nullify an otherwise proper
settlement by rearguing the merits of claims expressly resolved therein.
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We have considered all of defendants’ arguments and, whether explicitly
addressed or tacitly rejected, each has been found to lack merit. Accordingly, the
judgment of the United States District Court for the Western District of Oklahoma
is AFFIRMED. Defendants’ motion to supplement the record is denied. The
mandate shall issue forthwith.
Entered for the Court
John C. Porfilio
Circuit Judge
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