FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 21, 2012
Elisabeth A. Shumaker
Clerk of Court
ENDRE GLENN,
Plaintiff-Appellant,
and No. 12-4013
(D.C. No. 2:10-CV-00726-CW)
MARGARET GLENN, (D. Utah)
Plaintiff,
v.
DONNA KANE; NRT, LLC, d/b/a
Coldwell Banker Residential Brokerage,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Plaintiff Endre Glenn appeals from the district court’s grant of summary
judgment in favor of defendants Donna Kane and NRT, LLC, d/b/a Coldwell Banker
*
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)(2); 10th Cir. R. 34.1(G). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Residential Brokerage (“Coldwell Banker”). Exercising our jurisdiction pursuant to
28 U.S.C. § 1291, we AFFIRM.
Background
Mr. Glenn hired Coldwell Banker and its agent, Ms. Kane, to list and sell a
home he and his mother owned in Utah. Robin and Judith Reese (“the Buyers”)
submitted an offer to purchase the home. The offer was presented in the form of a
state-approved Real Estate Purchase Contract (“REPC”). The REPC contained a
section that allowed a buyer to cancel based on four specific categories of evaluations
and inspections, 8(a)-(d), as well as a fifth category, 8(e), where the Buyers could
include their own evaluations and inspections. In 8(e) the Buyers inserted the
language “Any other deemed necessary by buyers.” R., Doc. 15-2 at 4.
Mr. Glenn initialed each page of the REPC, including the page that contained
Section 8(e), and he admitted that he was aware that the Buyers could cancel the
contract based upon any test or evaluation deemed necessary by the Buyers. He
agreed to the terms of the contract on December 20, 2007, and the Buyers had until
January 5, 2008, to cancel the contract based upon the evaluations and inspections.
As one of the evaluations under 8(e), the Buyers elected to have an appraisal done on
the property. The home appraised for less than the purchase price offered in the
REPC. The Buyers attempted to negotiate a lower purchase price based upon the
appraisal and Mr. Glenn refused. On December 29, 2007, the Buyers cancelled the
contract.
-2-
Mr. Glenn contested the Buyers’ right to cancel and filed suit against the
Buyers in state court seeking specific performance of the contract. He alleged that
the language “[a]ny other deemed necessary” did not contemplate an appraisal as one
of the tests or evaluations. Mr. Glenn was unsuccessful in the trial court and in his
appeal. The Utah Supreme Court held that the contract language was broad enough
to include an appraisal as an evaluation.
Mr. Glenn then filed the underlying action in federal court, bringing claims for
breach of contract, breach of the implied covenant of good faith and fair dealing, and
breach of fiduciary duty. Defendants moved for summary judgment and the district
court granted the motion. Mr. Glenn now appeals.1
Discussion
Defendants argue that Mr. Glenn’s appeal raises only new issues that were not
presented to or decided on by the district court and therefore they should not be
considered by this court. We agree.
Mr. Glenn first asserts that defendants failed to provide initial disclosures and
cooperate in discovery proceedings and that the district court erred in not granting
additional time for discovery. He further asserts that defendants’ misconduct and
non-disclosure of the facts deprived him of the opportunity to present evidence to the
district court against defendants’ motion for summary judgment. The record does not
1
In the district court, Mr. Glenn was represented by counsel. He is proceeding
pro se on appeal.
-3-
show that Mr. Glenn raised any alleged discovery violations with the district court or
asked for additional time to complete discovery. We therefore decline to consider
these issues for the first time on appeal. See Tele-Commc’ns, Inc. v. Comm’r of
Internal Revenue, 104 F.3d 1229, 1232-33 (10th Cir. 1997).
Mr. Glenn next argues that the district court erred in granting summary
judgment because Ms. Kane, as his real estate broker, had a fiduciary duty to disclose
material facts to him as the seller, and she failed to do so. He contends that the
language that was added to the tests and evaluations section—“Any other deemed
necessary by the buyers”—“is a material fact the agent failed to disclose.” Aplt. Br.
at 8 (emphasis omitted).
To support his argument, he explains that the REPC was revised in 2008 to
“add[] new language to the contract agreement to ensure the Seller received proper
notice when [the] buyer canceled under the appraisal condition.” Id. at 9. He notes
that the language the Buyers added to 8(e) “allowed them to conduct their own
appraisal without providing the ‘Notice of Appraised Value’ to the Seller.” Id.
(emphasis omitted). He contends that “[t]his is a known problem with the REPC
(effective 2003) that the Department of Real Estate resolved” and “[t]he major
revision corrected several known limitations with the REPC (effective 2003).” Id.
He then refers to a Utah Division of Real Estate Newsletter from July 2008, which he
attached as an exhibit to his brief, asserting that the newsletter “cited ambiguity in
the REPC” that “required clarification or otherwise had an undesired or unintended
-4-
consequence.” Id. He concludes this paragraph by stating that “[a]s licensed Real
Estate agents in the State of Utah, Coldwell Banker had a duty and obligation to
disclose these limitations and material facts about the REPC that would affect their
client’s interest.” Id.
Whether this argument is a new issue raised for the first time on appeal
presents a somewhat closer question. Mr. Glenn alleged in his complaint that the
defendants breached their fiduciary duties by failing to notify him “that the Buyers
had inserted non-standard language in the REPC allowing them to cancel the REPC
based on the Buyers’ disapproval of any tests or evaluations.” R., Doc. 1 at 9. He
argued in his opposition to summary judgment that defendants had a fiduciary duty to
notify him “of anything they knew would make the REPC unenforceable.” Id.,
Doc. 17 at 17. He alleged that the defendants knew that the tests or evaluations
contemplated by Section 8 could include an appraisal and that they knew that an
appraisal was likely to come in low in the current market conditions. He further
asserted that “[a]lthough Defendants knew the appraisal would likely come in low,
and knew that the buyers could cancel the contract if the appraisal was not
satisfactory, they represented to [him] that it was a clean offer and would close
quickly.” Id. But in his complaint and his opposition to summary judgment,
Mr. Glenn never mentioned the 2008 revisions to the REPC nor did he include the
July 2008 Utah Division of Real Estate Newsletter that he has now attached to his
appellate brief.
-5-
In Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993), we
considered “what kind of specificity is required in the trial court in order to preserve
an issue for appeal.” We explained that “there are many ways in which a case may
present . . . issues not passed upon below. One is a bald-faced new issue. Another is
a situation where a litigant changes to a new theory on appeal that falls under the
same general category as an argument presented [to the district court].” Id. at 722
(citation and internal quotation marks omitted). We ultimately concluded that
although the defendant made reference to certain general principles before the trial
court, it never presented the specific arguments it was now raising on appeal. Id. at
723. We therefore determined that the defendant’s arguments fell “under the rule
that a party may not try the case on one theory and appeal on another.” Id. We
conclude that the same analysis applies here.
“In order to preserve the integrity of the appellate structure, we should not be
considered a ‘second-shot’ forum, a forum where secondary, back-up theories may be
mounted for the first time.” Tele-Commc’ns, Inc., 104 F.3d at 1233. “[A]n issue
must be presented to, considered [and] decided by the trial court before it can be
raised on appeal.” Id. (internal quotation marks omitted). Although Mr. Glenn made
a related argument to the district court, he never made the specific argument to the
district court that he now makes on appeal—that revisions to the REPC in 2008
demonstrate that there were problems with the 2003 version of the REPC; that these
were known problems and limitations; and, as licensed real estate agents in Utah, the
-6-
defendants had a duty to disclose these known limitations and material facts about
the REPC to him as the seller. In addition, the July 2008 Utah Division of Real
Estate Newsletter referenced in and attached to Mr. Glenn’s appellate brief is a new
piece of evidence that was not presented to the district court and is not a part of the
district court record. Our review on summary judgment “is confined to an
examination of materials before the lower court at the time the ruling was made.”
Lantec, Inc., v. Novell, Inc., 306 F.3d 1003, 1022 (10th Cir. 2002) (internal quotation
marks omitted).
We decline to consider Mr. Glenn’s new arguments and non-record evidence
presented for the first time on appeal. Accordingly, we AFFIRM the judgment of the
district court.
Entered for the Court
Wade Brorby
Senior Circuit Judge
-7-