Cobank v. Reorganized Farmers Cooperative Ass'n

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

COBANK, ACB,

Plaintiff-Appellee,

v. No. 04-3385
(D. Kan.)
REORGANIZED FARMERS (D.Ct. No. 02-CV-1300-JTM)
COOPERATIVE ASSOCIATION, a
Kansas cooperative association; FCA
POST-CONFIRMATION TRUST, a
Kansas trust established pursuant to
the confirmed reorganization plan of
the Farmers Cooperative Association,

Defendants-Appellants.

ORDER AND JUDGMENT *

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.

Appellant The Reorganized Farmers Cooperative Association and its

successor-in-interest in bankruptcy, FCA Post-Confirmation Trust (referred to

*
This order and judgment is not binding precedent except under the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.
together hereafter as the Cooperative), appeal the district court’s decision

granting summary judgment in favor of Appellee CoBank, ACB, on the

Cooperative’s claims of breach of contract, breach of duty of good faith and fair

dealing, fraud, breach of fiduciary duty, and tortious interference with contract,

which relate to default on a loan agreement between CoBank, as the lender, and

the Cooperative, as the borrower. Exercising our jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I. Background

The relevant facts are undisputed, with the exception of certain facts which

the district court found immaterial to its summary judgment determination and

which we address hereafter. To begin, CoBank is an agricultural lending bank

chartered as a federal instrumentality, with its principal place of business in

Colorado, and the Cooperative is an organization formed by a collection of

farmers under the laws of the State of Kansas, with its principal place of business

in Kansas. On or about January 31, 2000, the Cooperative and CoBank entered

into a Master Loan Agreement (loan agreement) which was subsequently amended

on August 2, 2000.

Under the terms of the loan agreement, the Cooperative obtained both

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revolving and term loans based in part on a requirement it maintain working

capital of $1 million at the end of each fiscal year, ending on July 31 of each year.

It also provided any modification of the agreement must be approved by CoBank,

in writing, and signed on behalf of CoBank. The loan agreement, as amended,

also contained a default provision which stated CoBank had no obligation to

continue to extend credit to the Cooperative for any default event and in the event

of such a default could discontinue extending credit at any time without prior

notice. It also provided that in the event of default CoBank could, on notice to

the Cooperative, terminate any commitment.

On September 21, 2000, accountants presented the Cooperative with a

preliminary audit showing an operating loss of approximately $1.6 million for the

fiscal year and a violation of the working capital section of the loan agreement

requiring $1 million in working capital. Prior to the audit the Cooperative

reported working capital of $1.7 million for the 2000 fiscal year, while after the

audit its actual working capital totaled only $102,363. The next day, Friday,

September 22, 2000, the Cooperative advised CoBank of the results of the

preliminary audit. On the same day, a CoBank representative, David Ehret, met

with the Cooperative’s president and chief executive officer, Don Dumler, to

discuss the Cooperative’s default on the terms of the loan agreement and verbally

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advised Mr. Dumler that the Cooperative could continue to pay expenses

necessary to preserve CoBank’s collateral, such as payroll and utilities, and to buy

grain, provided it was purchased and sold in back-to-back transactions. 1

Although neither party discussed the amounts necessary to cover such

expenditures, Mr. Ehret anticipated only minimal expenses and back-to-back grain

sales over the weekend.

While it is disputed whether CoBank otherwise restricted or froze the

Cooperative’s line of credit immediately after obtaining the audit report, it is

undisputed that on Monday, September 25, 2000, the next business day after

receiving the audit, Mr. Ehret, on behalf of CoBank, faxed to the Cooperative a

letter of notice of default on the loan, based on its $1.6 million reported loss and

violation of the $1 million working capital contingency. In the letter, he

identified the Cooperative’s debt to CoBank at over $11 million, advised that

CoBank was suspending monetary advances on the Cooperative’s seasonal line of

credit, and stated, “We recommend only expenses necessary to safeguard the

1
On appeal, the Cooperative does not provide any evidence disputing Mr.
Ehret's contention he committed to only “back-to-back” grain transactions, which
we understand involves a transaction or contract garnering a price from a grain
buyer equal to the price to be paid to the grower. See Interior Elevator Co. v.
Limmeroth, 565 P.2d 1074, 1075 n.1 (Or. 1977).

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assets and maintain critical operations be incurred while repayment is made. ...

You may also want to reassess your ability to continue credit sales, ordering

supplies/inventories, or purchasing grain, in light of this Notice.” (Emphasis

added.)

On Sunday, September 24, 2000, even before CoBank sent the letter of

default, Cooperative officials, in anticipation of possibly filing for bankruptcy,

scheduled a meeting for the next day with a group of bankruptcy attorneys. On

Monday, September 25, 2000, at 9:00 a.m., the Cooperative’s president and chief

executive officer, chief financial officer, board chairman, and legal counsel met

for approximately four hours with bankruptcy attorneys, who discussed the time

frame for filing bankruptcy and the need to file in a timely manner if the

Cooperative elected to file for bankruptcy. During this time, the Cooperative

continued aggressive purchases of grain, even though by Monday, September 25,

2000, CoBank's default notice advised it to reassess its ability to continue

purchasing grain and its representatives were “on pins and needles” wondering

how they would “pay people.”

On the same day, Monday, September 25, 2000, a Cooperative employee

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requested and received from CoBank credit manager Dennis Blick the amount of

$60,000 for payment on a margin call on grain. That evening, the Cooperative’s

Board of Directors held a special meeting at which its counsel suggested the

board retain the same bankruptcy attorneys from the morning meeting to handle

the bankruptcy filing. During that meeting, Mr. Dumler called Mr. Ehret and

asked if the Cooperative could buy grain, to which Mr. Ehret again generally

approved back-to-back grain purchases without reference to amount.

The next morning, Tuesday, September 26, 2000, the Cooperative’s Board

of Directors met with the same bankruptcy attorneys and again discussed the

possibility of filing for bankruptcy. While the exact time is in dispute, it is

undisputed that on the same day the Cooperative’s chief executive officer, Mr.

Dumler, requested approval from Mr. Blick for an advance of $4,056,969.95 to

the Cooperative to pay for grain ($3.2 million), freight ($719,000), and payroll

($160,000). This amount was more than twice the amount the Cooperative had

ever requested from CoBank during its entire loan history and consisted of

unsecured creditor expenses. During a conference call later that day, CoBank

declined to advance the $4 million requested. The next day, Wednesday,

September 27, 2000, the Cooperative filed a petition for Chapter 11 bankruptcy in

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the federal bankruptcy court in Kansas, and any further discussions or requests for

monetary advances apparently ceased.

Following receipt of a demand letter from the Cooperative asserting its

intention to file a lawsuit against CoBank, CoBank filed a complaint for

declaratory relief. In response, the Cooperative filed counterclaims against

CoBank for breach of written contract, breach of oral contract, breach of duty of

good faith and fair dealing, fraud, breach of fiduciary duty, and tortious

interference with contract, but eventually abandoned its breach of oral contract

claim which it based on CoBank’s verbal commitments of continued monetary

advances for grain, utilities, and payroll. Following extensive briefing on

CoBank’s motion for summary judgment on the Cooperative’s counterclaims, the

district court granted summary judgment in favor of CoBank and against the

Cooperative for the reasons articulated hereafter. This appeal followed, in which

the Cooperative contends the district court erred in granting summary judgment to

CoBank and renews its claims of breach of written contract, breach of duty of

good faith and fair dealing, fraud, breach of fiduciary duty, and tortious

interference with contract. We address each claim in turn, noting the claims

raised by the Cooperative are based on the same operative facts in support of its

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abandoned breach of oral contract claim but stated under different legal theories

in an apparent attempt to find some means of success on at least one theory.

II. Discussion

A. Summary Judgment Standard of Review

To begin, we review de novo the district court’s summary judgment

decision, examining the record and drawing all reasonable inferences in the light

most favorable to the non-moving party. See Palladium Music, Inc. v.

EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). Summary judgment

is appropriate if the record shows there is no genuine issue as to any material fact

and the moving party is entitled to a judgment as a matter of law. Id. (relying on

Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In

considering summary judgment determinations, we may affirm the district court’s

grant of summary judgment for any reason supported by the record. See Baca v.

Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005). In considering disputed facts, we

have held mere allegations unsupported by other evidence are insufficient to

survive a motion for summary judgment. Id.

B. Breach of Written Contract and Covenant of Good Faith and Fair Dealing

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 The Cooperative suggests summary judgment is inappropriate based on

CoBank’s refusal to honor Mr. Ehret's verbal commitments to advance funds for

grain and other general expenses after its material default. It asserts these

commitments modified the written agreement, and CoBank’s failure to later

advance the $4 million requested breached not only the written loan agreement

but the covenant of good faith and fair dealing implied in every contract. 2

This claim resembles the breach of oral contract claim the Cooperative

admits it abandoned before the district court because it could not succeed on such

a claim under either Colorado or Kansas statute of frauds laws. Specifically, the

2
On appeal, the Cooperative also summarily contends a borrowing
provision in the loan agreement somehow breached the covenant of good faith and
fair dealing because it prohibited the Cooperative from borrowing additional
operating funds from another lender without first obtaining CoBank’s written
approval. Specifically, the borrowing provision prohibits the Cooperative from
incurring indebtedness or liability for borrowed money, except for: (1) debt to
CoBank; (2) accounts payable to trade creditors; (3) current operating liabilities;
(4) indebtedness to its member investment program; and (5) debt to existing
creditors, not to exceed certain express amounts. We decline to address this issue
further on appeal, given: (1) the Cooperative fails to show how inclusion of the
borrowing provision, to which the Cooperative agreed as part of the written terms
and conditions of the loan agreement, breached the covenant of good faith and
fair dealing implied in every contract; (2) it provides no explanation or examples
on appeal of the borrowing provision’s application or misuse; and (3) it fails to
direct us to any portion of the record in which the issue was raised prior to
appeal. See Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1385-86 (10th Cir.
1997) (stating “[g]enerally, we will not consider an issue that was not raised and
resolved in the trial court”).

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Colorado statute of frauds provides no debtor or creditor may maintain an action

relating to a credit agreement involving a principal amount in excess of $25,000,

unless the credit agreement is in writing and signed by the party against whom

enforcement is sought. See Colo. Rev. Stat. § 38-10-124(2). Similarly, the

applicable Kansas statute of frauds states no debtor or creditor may maintain an

action for legal or equitable relief or a defense based on failure to perform a

credit agreement, unless the material terms and conditions of the agreement are in

writing and signed by the creditor and debtor. See Kan. Stat. Ann. § 16-118(a).

The Colorado courts have determined any tort claim relating to an oral credit

agreement involving a principal amount exceeding $25,000 is barred by the

Colorado statute of frauds. See Hewitt v. Pitkin County Bank & Trust Co., 931

P.2d 456, 459 (Colo. Ct. App. 1995); Norwest Bank Lakewood, Nat’l Ass’n. v.

GCC P’ship, 886 P.2d 299, 302 (Colo. Ct. App. 1994). However, in Kansas,

fraud appears to be an exception to the general requirement monetary promises

between a lender and borrower be in writing. See Bittel v. Farm Credit Servs. of

Cent. Kan., 962 P.2d 491, 496-98 (Kan. 1998). Given the Cooperative abandoned

its breach of oral contract claim and neither the district court nor the parties in

their briefs on appeal addressed it, we decline to consider it further, other than to

agree such a claim could not succeed under either state’s statute of frauds.

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 Proceeding to the Cooperative’s breach of written contract claim, it is

obviously not prohibited by either state’s statute of frauds. As to the breach of

duty of good faith and fair dealing claim, we consider it together with the written

contract claim, given both Colorado and Kansas have determined the covenant of

good faith and fair dealing is implied in every written contract, see Duffield v.

First Interstate Bank of Denver, 13 F.3d 1403, 1405 (10th Cir. 1993); Daniels v.

Army Nat’l Bank, 822 P.2d 39, 43 (Kan. 1991), and in Colorado it is considered

part of the written contract claim. See Strey v. Hunt Int’l Res. Corp., 749 F.2d

1437, 1441 (10th Cir. 1984); Centennial Square, Ltd. v Resolution Trust Co., 815

P.2d 1002, 1004 (Colo. Ct. App. 1991). We recognize “[c]ontractual obligations

are created by state law,” and “[t]he interpretation and enforcement of contracts is

traditionally within the province of state courts.” Madsen v. Prudential Fed. Sav.

& Loan Ass'n, 635 F.2d 797, 802 (10th Cir. 1981). A federal district court’s

interpretation of state law is a question of law “reviewable de novo on appeal.”

Vermejo Park Corp. v. Kaiser Coal Corp. (In re Kaiser Steel Corp.), 998 F.2d

783, 789 (10th Cir. 1993). We also recognize parties to a contract may choose a

particular state’s law to apply to the execution and interpretation of a contract and

absent special circumstances we will honor the parties’ choice of law, see Boyd

Rosene and Assoc., Inc. v. Kan. Mun. Gas Agency, 174 F.3d 1115, 1121 (10th Cir.

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1999), as will the Colorado and Kansas courts. See Pepsi-Cola Bottling Co. of

Pittsburgh v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005) (considering

Kansas forum law); Hansen v. GAB Bus. Servs., Inc., 876 P.2d 112, 113 (Colo.

Ct. App. 1994) (considering Colorado forum law).

In this case, the loan agreement contained a forum provision stating the

“agreement and each Supplement shall be governed by and construed in

accordance with the laws of the State of Colorado,” although neither party

focuses on this provision or explicitly on Colorado law. Similarly, the district

court determined that the issue of whether Kansas or Colorado law applies was

not dispositive as to the written contract claim. We agree. Regardless of whether

Colorado or Kansas law is applied to the loan agreement, it is unambiguous for

the purpose of summary judgment under either state’s law, and the district court

correctly concluded the Cooperative materially breached the loan agreement when

it substantially violated the working capital covenant. Therefore, CoBank was

within its contractual rights and did not breach the agreement when it sent the

default notice and elected not to advance the $4 million requested. Given the

loan agreement contained a default provision releasing CoBank from any

obligation to extend credit to the Cooperative following a default event and

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allowed CoBank, on notice to the Cooperative, to terminate its commitment,

CoBank did not breach the written loan agreement when it timely sent a notice of

default one business day following receipt of the audit report evidencing the

Cooperative’s own material breach. Because any modification was required to be

in writing, we disagree with the Cooperative's assertion Mr. Ehret's verbal generic

representations somehow modified the written contract.

As to the issue of good faith and fair dealing, the result is the same,

regardless of which state law is applied. Under Colorado law, the implied duty of

good faith and fair dealing limits a party’s ability to “act unreasonably in

contravention of the other party’s reasonable expectations,” even if the express

terms of a contractual provision appear to permit unreasonable actions. Duffield,

13 F.3d at 1405-06 (emphasis added). This duty applies when one party has

discretionary authority to determine certain terms of the contract, such as

quantity, price or time. See Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo.

1996) (en banc). A breach may occur “[w]hen one party uses discretion conferred

by the contract to act dishonestly or to act outside of accepted commercial

practices to deprive the other party of the benefit of the contract.” Wells Fargo

Realty Advisors Funding, Inc. v. Uioli, Inc., 872 P.2d 1359, 1363 (Colo. Ct. App.

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1994).

On the other hand, the duty of good faith and fair dealing, as interpreted by

Colorado case law, “requires only that the parties to a contract perform the

obligations imposed by the agreement in good faith and in a reasonable manner.”

Crown Life Ins. Co. v. Haag Ltd. P’ship, 929 P.2d 42, 46 (Colo. Ct. App. 1996).

The question of good faith is determined on a case-by-case basis. See Amoco, 908

P.2d at 499. In Colorado, “[g]ood faith performance of a contract emphasizes

faithfulness to an agreed common purpose and consistency with the justified

expectations of the other party.” Wells Fargo, 872 P.2d at 1363 (emphasis

added). While the covenant of good faith may be relied on when the manner of

the performance under the contract terms allows for discretion on the part of

either party, it cannot contradict terms or conditions for which a party has

bargained. Amoco, 908 P.2d at 498. “[T]he duty of good faith and fair dealing

does not obligate a party to accept a material change in the terms of the

contract[,] ... assume obligations that vary or contradict the contract’s express

provisions,” or inject substantive terms into the contract. Wells Fargo, 872 P.2d

at 1363. The Colorado courts have concluded that while “[e]very contract

contains an implied duty of good faith and fair dealing[,] ... [w]hen that duty is

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breached in most commercial contracts, the result is merely a breach of contract

with standard remedies.” Id. (quoting Wheeler v. Reese, 835 P.2d 572, 578 (Colo.

Ct. App. 1992)).

In Kansas, the analysis is much simpler. “In dealing with good faith

arguments against lenders by borrowers, ... the test of good faith is subjective and

requires only honesty in fact.” Hartford v. Tanner, 910 P.2d 872, 880 (Kan. Ct.

App. 1996). Thus, in order to prevail in Kansas on a breach of duty of good faith

claim, the party so alleging must offer proof of dishonesty by the other party. See

Gillenwater v. Mid-Am. Bank & Trust Co., 870 P.2d 700, 704 (Kan. Ct. App.

1994).

In this case, the district court resolved the good faith and fair dealing issue

by concluding, “CoBank was in its discretion to decline an advance of $4 million

to a defaulting-borrower. To claim otherwise would contradict the terms of the

[loan agreement].” We agree with the district court’s holding, but are inclined to

expand on the reasons supporting the summary judgment decision. Specifically,

when the Cooperative requested an advance of $4 million after informing CoBank

of its material default, its expectation that it should or would receive such an

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enormous sum was not in any way a “justified expectation” for the purpose of

establishing a breach of duty of good faith and fair dealing, even if a

representative of CoBank made verbal commitments of unspecified sums for grain

and other critical expenses. Specifically, the Cooperative's expectation of

receiving an advance of $4 million — more than twice the amount ever requested

from CoBank and based on generic verbal commitments, working capital of just

over $100,000, a loan debt of over $11 million, and while in substantial default

on its loan commitment — was clearly unjustified and unreasonable. Such

unreasonableness is further evidenced by its decision to aggressively purchase

over $3 million worth of grain during the three or four days after it discovered its

extreme financial deficiencies, based on nothing but a CoBank representative’s

general commitment of unspecified sums. In addition, as the district court noted,

the Cooperative’s own actions in entering into discussions with bankruptcy

attorneys before CoBank sent the default notice and before the Cooperative

requested the $4 million advance shows it did not expect to continue to receive

substantial monetary assistance from CoBank. This lack of expectation is further

evidenced by the fact its representatives and employees were on “pins and

needles”over how the Cooperative would pay for the grain purchases in question.

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 Furthermore, as the district court suggested, for CoBank to have advanced

$4 million on a fraction of the $1 million working capital required would have

materially changed the terms of the parties' agreement. CoBank had no obligation

to accept a material change in the terms of the loan agreement or to assume an

obligation that varied from or contradicted its express provisions. Finally,

CoBank’s decision to suspend monetary advances to the Cooperative under the

explicit default terms of the contract is not the type of “discretionary authority”

used in determining “certain terms of the contract,” and nothing in the record

otherwise suggests CoBank acted “dishonestly” or “outside of accepted

commercial practices.” Amoco, 908 P.2d at 498; Wells Fargo, 872 P.2d at 1363.

See also Hartford, 910 P.2d at 880; Gillenwater, 870 P.2d at 704. Under the

circumstances presented and our standard of review, we conclude the district

court did not err in granting CoBank summary judgment on the Cooperative’s

counterclaims based on breach of written contract and the covenant of good faith

and fair dealing.

C. Tort Claims Choice of Law Issue

In the briefs submitted on appeal, neither the Cooperative nor CoBank

discuss which state law should apply to the tort claims presented, and at oral

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argument neither party substantially assisted on the issue when asked to address

it. Nevertheless, both parties rely on cases from both venues to support their tort

claim arguments on appeal.

As previously indicated, the forum contract provision in this case requires

application of Colorado law to the written loan agreement and its supplement and

does not explicitly reference tort claims. While “determining the scope of a

forum selection clause is a rather case-specific exercise,” Terra Int’l, Inc. v. Miss.

Chem. Corp., 119 F.3d 688, 694 (8th Cir. 1997), generally speaking, other circuits

applying state law have determined a contract forum provision cannot apply to

tort claims unless the provision is broad enough to be construed to cover such

claims 3 or the tort claims involve the same operative facts as a parallel breach of

contract claim. 4 Admittedly, in this case, the choice of law provision appears to

narrowly apply only to the loan agreement itself, although the operative facts

3
See Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325,
335 (2d Cir. 2005); Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 628
(4th Cir. 1999); Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 222-23
(5th Cir. 1998); Thompson & Wallace of Memphis, Inc., v. Falconwood Corp.,
100 F.3d 429, 433 (5th Cir. 1996); Consol. Data Terminals v. Applied Digital
Data Sys., Inc., 708 F.2d 385, 390 n.3 (9th Cir. 1983).
4
See Holden Farms, Inc. v. Hog Slat, Inc., 347 F.3d 1055, 1061 (8th Cir.
2003); Terra, 119 F.3d at 695; Lambert v. Kysar, 983 F.2d 1110, 1121-22 (1st
Cir. 1993); Hugel v. Corp. of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993).

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supporting the Cooperative’s tort claims are parallel to those presented in its

breach of oral and written contract claims. Our decision on which state law

applies to the tort claims raised in this case is not definitively resolved by either

Kansas or Colorado case law, given the Kansas courts have not specifically

addressed whether a contract forum provision applies to related tort claims, see

Ritchie Enters. v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1046 (D. Kan. 1990),

and the parties and a preliminary inquiry produce no precise answer with respect

to the Colorado courts’ position when a contract forum provision is at issue in a

tort claim. 5 Rather than labor any further over which state law applies, we follow

the district court’s lead in concluding that regardless of which state law applies,

the result is the same, as explained hereafter.

D. Fraud

The Cooperative’s fraud claim is based on its assertion CoBank made

5
Generally, in cases not involving contract forum provisions, tort claims in
Kansas are considered under the state law where the tort allegedly occurred,
including where the “wrong was felt” or the injured party “felt the financial
harm.” See ORI, Inc. v. Lanewala, 147 F.Supp.2d 1069, 1077-78 n.9 (D. Kan.
2001); Ling v. Jan’s Liquors, 703 P.2d 731, 735 (Kan. 1985). In Colorado, tort
claims are considered under the law of the state with “the most significant
relationship” to the occurrence and the parties. Siemens Med. Sys., Inc. v.
Nuclear Cardiology Sys., Inc., 945 F.Supp. 1421, 1426 (D. Colo. 1996); ITT
Specialty Risk Servs. v. Avis Rent A Car Sys., Inc., 985 P.2d 43, 47 (Colo. Ct.
App. 1998).

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verbal commitments to advance funds to the Cooperative to purchase grain from

various farmers over the four- or five-day period at issue. It claims CoBank did

not intend to advance such funds when it made such commitments and, instead,

intended to deceive and induce the Cooperative to enter into contracts to purchase

such grain, and that the Cooperative reasonably relied on such inducements,

entered into contracts for the purchase of grain, and sustained damages when

CoBank refused to provide the money requested — namely, the $4 million. In

support of its argument, the Cooperative contests the district court’s

determination that its fraud claim is precluded because it is based on the same

allegations made in support of its abandoned oral contract claim.

We agree with the district court that the Cooperative’s fraud allegations are

identical or closely related to those in its abandoned breach of oral agreement

claim, and under Colorado’s statute of frauds, any tort claim relating to an oral

credit agreement involving a principal amount exceeding $25,000 is barred. See

Hewitt, 931 P.2d at 459. However, in Kansas fraud is an exception to the general

requirement that any promise of monetary advancement between a lender and

borrower be in writing, see Bittel, 962 P.2d at 496-98, so we will consider it here.

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 Under Kansas law, the elements of fraud include an untrue statement of

fact, known to be untrue by the party making it, made with the intent to deceive or

with reckless disregard for the truth, on which the other party justifiably relies to

his detriment. See Bomhoff v. Nelnet Loan Servs., Inc., 109 P.3d 1241, 1246

(Kan. 2005). Similarly, even if we examine the Cooperative’s fraud claim under

Colorado law, the Cooperative must show CoBank made a false representation of

a material fact, knew the representation to be false and the person to whom it was

made was ignorant of its falsity, made the representation with the intention of it

being acted on, and that the reliance resulted in damage. See Nelson v. Gas

Research Inst., 121 P.3d 340, 343 (Colo. Ct. App. 2005). More specifically, in

Colorado, fraud requires more than mere nonperformance of a promise or failure

to do an agreed action at a future time; instead, it requires proof the person

making the representation “had the present intention not to fulfill the promise.”

Id.

In this case, given the Cooperative's material default, enormous debt, and

dire financial straits, it is clear Mr. Ehret anticipated only minimal expenses and

back-to-back grain sales when he generally committed to unspecified sums for

necessary expenses and grain purchases for the few days at issue. The

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Cooperative presents no evidence Mr. Ehret made statements known to be untrue

or with the intent to deceive when he generally advised CoBank would advance

sums to cover such expenses. The Cooperative’s self-serving claims to the

contrary are not sufficient to raise a dispute of material fact to overcome summary

judgment. See Baca, 398 F.3d at 1216. Applying our standard of review, we

conclude the district court did not err in granting CoBank summary judgment on

the Cooperative’s counterclaim based on fraud.

E. Breach of Fiduciary Duty

The Cooperative insists genuine issues of material fact exist as to whether a

fiduciary duty arose between it and CoBank and, if such a duty existed, whether

CoBank breached that duty when it failed to advance money on its verbal

commitments to cover grain and other necessary expenses. In support of its

allegation of a dispute of material fact, it claims a fiduciary duty existed because

CoBank controlled the Cooperative and gave it extensive business advice over

many years, on which the Cooperative relied.

In both Colorado and Kansas the general rule is clear: a borrower-lender

relationship creates no fiduciary duty. See Jack v. City of Wichita, 933 P.2d 787,

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793 (Kan. Ct. App. 1997); Daniels, 822 P.2d at 42; First Nat’l Bank of Meeker v.

Theos, 794 P.2d 1055, 1060 (Colo. Ct. App. 1990). More specifically, in Kansas

no special duty is created between a lender and borrower, absent fraud and

conflict of interest. Daniels, 822 P.2d at 42. Given our conclusion no fraud has

been established in this case and the fact the Cooperative has provided no conflict

of interest argument, no fiduciary duty existed under Kansas law, and therefore,

the district court did not err in determining no breach of fiduciary duty occurred.

As previously mentioned, the Colorado Court of Appeals has determined

the statute of frauds precludes any tort action on oral credit agreements in excess

of $25,000, including explicitly those relating to a fiduciary duty. See Norwest,

886 P.2d at 302. Even if we considered the Cooperative’s breach of fiduciary

duty claim, it would not succeed.

In Colorado, as an exception to the general rule, a fiduciary duty between a

lender and borrower “may arise from a business relationship which ‘impels or

induces one party to relax the care and vigilance it would or should have

ordinarily exercised in dealing with a stranger’” or where the borrower

demonstrates a “repose of trust” and the lender likewise accepts such trust

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responsibility. Wells Fargo, 872 P.2d at 1365. As an example, the Colorado

Court of Appeals in Wells Fargo noted a fiduciary duty may occur where a special

advisor/advisee relationship develops between the lender and borrower, unless the

lender did not offer financial advice, its advice was not always heeded, or the

borrower was advised by others, such as legal counsel. Id. In Wells Fargo, the

court found no fiduciary duty existed between the lender and borrowers because:

(1) the borrowers’ claim of breach of fiduciary duty arose out of the lender’s post-

default conduct; (2) at the time of such post-default conduct, the borrowers did

not reasonably repose a special trust and confidence in the lender or relax the care

and vigilance borrowers would normally have exercised; and (3) the parties’

position during the post-default conduct became adversarial, at which time both

had legal representation. Id.

We think the situation is similar here, where the Cooperative’s claim of

breach of fiduciary duty is based on events following its substantial default on the

loan agreement — namely, CoBank’s refusal to advance $4 million following the

Cooperative's default. At the time the Cooperative notified CoBank of its default,

it is clear the Cooperative and CoBank’s relationship was one purely of debtor

and creditor, and it would have been unreasonable for the Cooperative to repose a

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special trust and confidence in CoBank at a time when it was substantially in

default and considering bankruptcy. Moreover, during this period, the

Cooperative was relying on both its in-house counsel and its bankruptcy attorneys

in order to determine whether to file bankruptcy. As a consequence, the

Cooperative’s allegations of a dispute of material fact as to a breach of fiduciary

duty, based on its relationship with CoBank prior to its default on the loan, are

immaterial for the purpose of summary judgment disposition in this case.

F. Tortious Interference

Like its other claims, the Cooperative’s tortious interference claim is based

on CoBank’s verbal commitments to advance money to purchase grain, which the

Cooperative claims induced it to enter into various grain purchase contracts, and

when CoBank withdrew its credit the Cooperative was “unable to complete those

grain purchase contracts.”

The facts in support of the Cooperative’s tortious interference claim are, as

Yogi Berra would say, “déjà vu all over again.” Like its other claims, the

operative facts are remarkably similar to those in the Cooperative's abandoned

breach of oral contract claim generally prohibited by both Colorado and Kansas

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statute of frauds laws. Nevertheless, even if we consider it as a separate claim, it

must fail.

In Colorado, a tortious interference claim requires the offending party to

“intentionally interfere” with a contract or a prospective contractual relation of

another; i.e., “the interference must be both intentional and improper.” Amoco,

908 P.2d at 500-01. In Kansas, to establish a tortious interference claim, the

injured party must show the other party “acted with malice.” Pepsi-Cola, 431

F.3d at 1263. In this case, the Cooperative presents no evidence of CoBank’s

intent to maliciously or improperly interfere with the Cooperative's grain

contracts when it declined to extend credit after the Cooperative materially

defaulted under the loan agreement. It is clear any discussion or representation

regarding future grain purchases was fairly generic, and any oral commitment of

unspecified monetary advancements was for the purpose of protecting the

Cooperative’s assets, in which CoBank had an interest, and not for the purpose of

intentionally or maliciously interfering with the Cooperative’s grain contracts.

Under these circumstances and on application of our standard of review, we

conclude the district court did not err in granting summary judgment to CoBank

on the Cooperative’s tortious interference claim.

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 III. Conclusion

For the reasons cited in the district court’s September 9, 2004 decision and

those articulated herein, we AFFIRM summary judgment in favor of CoBank on

all of the Cooperative’s counterclaims.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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