F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 26 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT J. LEVY and JOHN M.
LEVY,
Plaintiffs - Appellees, No. 98-1360
v. (D.C. No. 91-B-1460)
EDWARD M. LEVITT, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and LUCERO, Circuit Judges.
I. Background
In this diversity action under Colorado law, Plaintiffs sue Defendant for
contribution pursuant to their partnership and joint venture agreements. In 1983,
the parties formed Tri L Partners (Tri L), an equally-owned partnership, and
Tejon-Kiowa Associates (Tejon-Kiowa), a joint venture owned by Tri L and the
parties individually. Tejon-Kiowa was formed to acquire and develop certain real
*
This order and judgment is not binding precedent, except under the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.
estate—the Giddings Building—in Colorado Springs, Colorado. In order to fund
the purchase of the building, Plaintiffs and Defendant obtained two separate loans
for which they were liable individually, as joint venturers of Tejon-Kiowa, and as
general partners of Tri L.
The partnership and joint venture soon began losing money. In July 1987,
Defendant stopped making payments to fund the ongoing deficiencies of the joint
venture and partnership. However, Plaintiffs continued to make payments on
Defendant’s behalf, as allowed under the partnership and joint venture
agreements. These payments were initially classified as capital payments made by
Defendant with offsetting loans from Plaintiffs to Defendant; later they were
reclassified as loans from Plaintiffs to Defendant.
Despite his nonpayment, Defendant continued to serve for several months
as managing partner of the partnership. In addition, Defendant made payments on
a junior debt against the Giddings Building, received monthly reports on the
partnership and joint venture, and claimed partnership deductions on his federal
income tax returns for 1987-89. Defendant states that he told Plaintiffs “It’s
over” on June 9, 1988; nevertheless, he continued to indicate a willingness to pay
the sums he owed and even stated an interest in purchasing Plaintiffs’ shares in
the partnership.
On January 4, 1990, Tejon-Kiowa sold the Giddings Building and gave the
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proceeds to Tejon-Kiowa’s creditors. Plaintiffs then personally paid the balance
of Tejon-Kiowa’s debts, including Defendant’s share of the loss. Defendant
endorsed a Consent and Ratification approving the Giddings Building Deed and
was released from liability to the banks on the two notes. Defendant specifically
referred to himself in the Consent as a partner of Tri L and joint venturer of
Tejon-Kiowa. Plaintiffs and Defendant also discussed signing a mutual release of
all parties from the obligations incurred under payment of the bank notes in
exchange for Defendant’s endorsement of the Consent and Ratification; however,
Defendant found Plaintiffs’ release draft unsatisfactory and refused to sign it.
Plaintiffs, by letter of October 24, 1990, demanded that Defendant pay the
money he owed or they would dissolve the partnership and joint venture. When
they received no substantive response, Plaintiffs dissolved Tejon-Kiowa and
terminated Tri L on December 31, 1990, pursuant to the provisions of their
respective agreements. On August 22, 1991, Plaintiffs filed suit against
Defendant for amounts owed under the partnership and joint venture agreements.
Nearly a decade of litigation followed, during which the parties filed nine
separate motions for summary judgment and Defendant asserted more than twenty
different defenses to liability. The district court repeatedly attempted to resolve
or simplify the issues presented. On November 5, 1993, the court struck the
parties’ previous briefs and required both parties to submit simultaneous briefs in
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support of their existing summary judgment motions. Important to this appeal,
Defendant moved for summary judgment as to the date in which the partnership
and joint venture were dissolved and his release from liability to Plaintiffs.
Plaintiffs moved for summary judgment on their claims for breach of contract and
capital contribution and against all of Defendant’s defenses, including the
dissolution date and release. On January 19, 1995, the court granted Plaintiffs’
motion for summary judgment with respect to their breach of contract and capital
contribution claims and denied summary judgment for Defendant on his numerous
defenses. On August 12, 1998, the court entered judgment against Defendant for
Plaintiffs’ attorney fees and costs.
On appeal, Defendant asserts that the district court erred in granting
summary judgment on Plaintiffs’ breach of contract, dissolution date, and
contribution claims. In addition, Defendant alleges violations of due process and
requests that we set aside Plaintiffs’ award of attorney fees.
We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court. Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” F ED . R. C IV . P. 56(c). When applying this
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standard, we view the evidence and draw inferences therefrom in the light most
favorable to the nonmoving party. See id.
II. Partnership Accounting, Dissolution
Defendant first claims that the district court erred in entering summary
judgment in favor of Plaintiffs on their breach of contract claim. Defendant
contends that Plaintiffs’ action must be dismissed because Plaintiffs failed to
include a specific claim for a partnership accounting, as required by Boner v. L.C.
Fulenwider, Inc. , 513 P.2d 730, 732 (Colo. Ct. App. 1973). The Boner court
declared the general rule that individual members of a partnership “cannot
maintain an action for damages against another member unless there has been an
accounting.” Id. However, Colorado courts have enumerated several exceptions
to the Boner rule. The Colorado Supreme Court has held that “where a
partnership has been dissolved, or where its business has been concluded, or
where a partnership exists for a single venture or special purpose . . . the rule
does not apply.” Morris v. Redak , 234 P.2d 908, 914 (Colo. 1951).
In the instant case, although the parties dispute the exact date of
dissolution, both concur that the partnership was dissolved before Plaintiffs
brought suit. In addition, prior to this litigation all partnership business had
concluded with the dissolution and sale of the partnership’s property. Finally, the
partnership and joint venture existed for only one purpose: to manage the
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investment in a single piece of real property. Thus, by any of these three
exceptions, Plaintiffs were not required to make a specific claim for accounting
under Colorado law. 1
Defendant next claims that a genuine issue of material fact existed as to the
exact date of dissolution of the Tri L partnership. He asserts that his declaration
to the Plaintiffs that “It’s over” acted to dissolve the partnership on June 9, 1988,
as opposed to December 31, 1990, the date in which Plaintiffs formally acted to
dissolve both the joint venture and the partnership. The earlier dissolution date
was essential to Defendant’s statute of limitations defense. 2
The district court found that Defendant claimed partnership losses on his
1988, 1989, and 1990 tax returns. 3
In addition, on February 9, 1990, Defendant
1
We further note that some years after this suit was instigated, Colorado
adopted § 405 of the Uniform Partnership Act, which allows a partner to maintain
actions against other partners without an accounting to enforce the partner’s
rights under the partnership agreement. See C OLO . R EV . S TAT . § 7-64-405 (2000).
2
The Colorado Court of Appeals has recently ruled that a two-year
catch-all statute of limitations applied to a withdrawing partner’s action for
partnership accounting because the amount due from accounting was not capable
of ascertainment by reference to partnership agreement or by simple computation
derived from agreement. See Tafoya v. Perkins , 932 P.2d 836, 838 (Colo. Ct.
App. 1996). The district court had held that the applicable time frame for
Plaintiffs to bring suit in this action under Colorado law was six years. See Order
of May 27, 1993 (App. at 51-57).
As Defendant points out, the court erred in making this finding. It should
3
have determined that such losses were claimed in 1987, 1988, and 1989. Since
(continued...)
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signed a “Consent and Ratification” regarding the sale of the Giddings Building
in which he declared four separate times that he was a partner of Tri L and a joint
venturer of Tejon-Kiowa. The district court cited In re S & D Foods, Inc. , 144
B.R. 121, 159 (Bankr. D. Colo. 1992), for the proposition that a party is estopped
from denying the existence of a partnership where he has held himself out as a
partner by executing documents in behalf of the partnership. The court further
noted that under Colorado law, a party holds himself out as a partner if he claims
partnership losses on his tax returns. See Roberts v. Roberts , 155 P.2d 155, 157
(Colo. 1945). Thus, the court held, Defendant was estopped from arguing that
dissolution occurred on June 9, 1988.
On appeal, Defendant contends that Roberts is inapposite because, in
contrast to the defendant in Roberts , he does not deny the existence of a
partnership, only that his status as a partner was changed through dissolution.
However, Defendant asserts a distinction without a meaningful difference. While
Roberts dealt specifically with an individual denying the existence of a
partnership, its principle is equally applicable to individuals denying their status
in an existing partnership. The essential rule of Roberts is that an individual
cannot acquire the benefits of partnership without simultaneously assuming its
3
(...continued)
Defendant endorsed the Consent and Ratification as a partner in 1990, the error
was harmless.
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corresponding liabilities. Colorado courts have affirmed this rule since at least
1892: “It is well settled that where a person, with his knowledge and consent, has
been held out to the person having a claim or to third parties as a partner, liability
as a partner is fastened upon him.” Butler v. Hinckley , 30 P. 250, 252 (Colo.
1892). Defendant cannot deny his status as a partner of Tri L for a period in
which he induced the Internal Revenue Service and two banks to believe that he
had the right, as a partner, to receive tax refunds and manage partnership
property. This inducement of third parties to change position detrimentally in
reasonable reliance on the inducing party’s actions is the very purpose for
estoppel. Cont’l W. Ins. Co. v. Jim's Hardwood Floor Co., Inc. , 12 P.3d 824, 829
(Colo. Ct. App. 2000).
Since Defendant was estopped from denying his status as a partner after
June 9, 1988, and presented no other evidence refuting Plaintiffs’ claim that
dissolution occurred on December 31, 1990, the court held that December 31,
1990, was the proper dissolution date. We agree.
III. Release and Contribution
Defendant next claims that the court erred in granting summary judgment
against him on his release from liability defense. Defendant maintains that in
exchange for ratification of the Giddings Building deed, he was released from
liability on the two bank notes as to both the banks and Plaintiffs. Plaintiffs point
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out that Defendant did not also sign the mutual release on the indebtedness that
they proffered to him. Nevertheless, Defendant argues that his negotiations with
Plaintiffs over a mutual release in return for the Giddings ratification constituted
an implied release of his obligations on the notes to both the banks and to
Plaintiffs. However, Defendant fails to substantiate his inventive argument.
Defendant had full opportunity to sign Plaintiffs’ proposed release and refused to
do so. In addition, as the district court held, a release of his indebtedness to the
banks did not relieve him of liability to his partners under the partnership and
joint venture agreements. Viewing the evidence in the light most favorable to
Defendant, there is no triable issue concerning Defendant’s release claim.
Defendant next contests the district court’s grant of summary judgment on
Plaintiffs’ contribution claim. The court found that Defendant admitted failing to
make capital contribution payments in breach of the partnership and joint venture
agreements. In addition, Defendant did not dispute that, pursuant to the terms of
the joint venture agreement, Plaintiffs made capital contributions on his behalf
until dissolution and termination of the partnership and joint venture.
Nevertheless, Defendant argues that Plaintiffs did not follow the contribution
procedures described in the partnership and joint venture agreements, which allow
Plaintiffs to pay Defendant’s capital contributions and then buy out his interest.
Defendant claims that he should have been bought out under these procedures
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instead of held liable for his breach. However, as the district court noted, the
joint venture agreement also states that “nothing in the agreement is intended to
limit the rights ‘at law or by statute or otherwise’ of any party aggrieved by the
agreement’s breach.” App. at 243. The court also observed that under Colorado
law, a partner “shall contribute toward the losses whether of capital or otherwise
sustained by the partnership according to his share in the profits.” C OLO . R EV .
S TAT . § 7-60-118(1)(a). The court then held that section 118(1)(a) conferred
upon Plaintiffs the right to collect the capital contributions that Defendant failed
to provide. Defendant presented no genuine issue of material fact for the court to
decide. In addition, Defendant identifies no error in the court’s reasoning under
Colorado law, nor does he present evidence indicating a mandated hierarchy of
Plaintiffs’ remedies for his breach. Thus, the court did not err in granting
Plaintiffs’ motion for summary judgment on their contribution claim.
IV. Due Process
Defendant next claims that the district court denied him due process when
it ordered the parties to submit simultaneous briefs consolidating all outstanding
motions for summary judgment. Defendant contends that the simultaneous
briefing procedure prevented him from presenting rebuttal evidence in accordance
with Fed. R. Civ. P. 56, since he had no opportunity to respond to Plaintiff’s brief
after its submission. However, Defendant misconstrues the purpose and use of
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the simultaneous briefs. The parties had submitted nine separate briefs detailing
various motions for summary judgment, which were followed by the opposing
parties’ respective responses. This was an unwieldy load. The district court
struck the nine summary judgment briefs and ordered each of the parties to submit
a single consolidated brief that organized and condensed the arguments that each
had already made. The court did not deny Defendant the right to respond to
Plaintiffs’ arguments; Defendant had already done so, followed by which both
parties were required to consolidate their previous briefs. The court’s act was a
common and appropriate attempt to manage its caseload in accordance with local
rules. 4 Defendant was not prejudiced by this unremarkable consolidated briefing
procedure.
Defendant also alleges that he was denied due process because the initial
district court judge in charge of this action “had a personal bias or prejudice
against both parties within the meaning of 28 U.S.C. § 455(b)(1) such that he
should have disqualified himself years ago.” (Br. Aplt. at 43). Defendant
“constructively infer[s]” this bias by pointing out the number of times that trial
dates were rescheduled, the court’s order for simultaneous briefing, its rejection
4
D.C. C OLO . L. R. 7.1(H) states: “[B]riefs and Motions shall be concise. A
verbose, redundant, ungrammatical, or unintelligible brief or motion may be
stricken or returned for revision, and its filing may be grounds for imposing
sanctions. Limitations may be imposed on the length of any brief or motion.”
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of Defendant’s arguments, and even the judge’s retirement before this case had
concluded.
However, the Supreme Court, in discussing § 455(b)(1), has stated that
“judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States , 510 U.S. 540, 555 (1994). In addition,
opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible. . . . Not establishing bias or
partiality . . . are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as
federal judges, sometimes display.
Id. at 555-56; see also United States v. Young , 45 F.3d 1405, 1415 (10th Cir.),
cert. denied , 515 U.S. 1169 (1995).
At most, Defendant has shown that the district judge was impatient with the
parties’ numerous briefs and unheeding to Defendant’s pleas for exoneration.
This did not rise to the level of judicial bias or prejudice under § 455(b). Even if
it did, the remedy for judicial prejudice is a motion for recusal that “must be
timely filed,” and a party must act promptly in filing its motion once it knows of
the facts on which it relies. Willner v. Univ. of Kan. , 848 F.2d 1023, 1028-29
(10th Cir. 1988), cert. denied , 488 U.S. 1031 (1989). Defendant’s belated claim
of judicial bias stemming from over nine years of judicial administration is
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certainly not timely.
V. Attorney Fees
Lastly, Defendant argues that the award of attorney fees to Plaintiffs should
be set aside. Defendant’s one-sentence justification directs this court to peruse
three of his previous filings and alleges that Plaintiffs did not prove their
entitlement to attorney fees. However, Defendant fails to provide this court with
the documents he references. “It is not this court’s burden to hunt down the
pertinent materials. Rather, it is [Defendant’s] responsibility as the appellant to
provide us with a proper record on appeal.” Rios v. Bigler , 67 F.3d 1543, 1553
(10th Cir. 1995). We thus decline to review Defendant’s challenge to the district
court’s award of attorney fees. See Knowlton v. Teltrust Phones, Inc. , 189 F.3d
1177, 1182 (10th Cir. 1999) (failure to provide adequate record requires court to
disregard challenges to district court’s ruling on sanctions).
For the foregoing reasons, the judgment of the district court is
AFFIRMED .
Entered for the Court:
Monroe G. McKay
Circuit Judge
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