Alpine Bank v. Hubbell

FILED
United States Court of Appeals
Tenth Circuit

January 30, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

ALPINE BANK, a Colorado banking
corporation,

Plaintiff - Counter-
Defendant - Appellee,
v. No. 07-1190
PLATT T. HUBBELL; KELLEY S.
HUBBELL,

Defendants -
Counterclaimants - Third
Party Plaintiffs -
Appellants.

and

GEORGIA CHAMBERLAIN, as
Public Trustee of Garfield County,
Colorado,

Defendant-Third-Party-Plaintiff,

v.

CARNEY BROTHERS
CONSTRUCTION, a Colorado
corporation; IAN CARNEY;
RICHARD CARNEY; KERRY M.
KARNAN; THANE R. LINCICOME;
T.J. CONCRETE CONSTRUCTION,
INC., a Colorado corporation;
TEAMCORP, INC., doing business as
Draft Tek,

Third Party Defendants,
 ORDER

Before TACHA, HARTZ, Circuit Judges, and DEGIUSTI *, District Judge.

This matter is before us on the Hubbells’ Petition for Panel Rehearing. We

GRANT the petition for the limited purpose of inserting three paragraphs in our

Opinion, on pages 25 to 27. The Opinion filed on December 31, 2008, is vacated

and the attached revised Opinion is substituted in its place.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

*
Honorable Timothy D. DeGiusti, U.S. District Court Judge, Western
District of Oklahoma, sitting by designation .

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 FILED
United States Court of Appeals
Tenth Circuit

January 30, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALPINE BANK, a Colorado banking
corporation,

Plaintiff - Counter-
Defendant - Appellee,
v. No. 07-1190
PLATT T. HUBBELL; KELLEY S.
HUBBELL,

Defendants -
Counterclaimants - Third
Party Plaintiffs -
Appellants.

and

GEORGIA CHAMBERLAIN, as
Public Trustee of Garfield County,
Colorado,

Defendant-Third-Party-Plaintiff,

v.

CARNEY BROTHERS
CONSTRUCTION, a Colorado
corporation; IAN CARNEY;
RICHARD CARNEY; KERRY M.
KARNAN; THANE R. LINCICOME;
T.J. CONCRETE CONSTRUCTION,
INC., a Colorado corporation;
 TEAMCORP, INC., doing business as
Draft Tek,

Third Party Defendants,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 05-cv-0026-EWN-PAC)

Daniel Fowler (Katherine Taylor Eubank with him on the briefs), of Fowler,
Schimberg & Flanagan, P.C., Denver, Colorado, for Appellants.

John Palmeri of Gordon & Rees, LLP, Denver, Colorado, (Heather K. Kelly of
Gordon & Rees; and Michael T. McConnell, Walter N. Houghtaling, Robert W.
Steinmetz of McConnell Siderius Fleischner Houghtaling & Craigmile, LLC,
Denver, Colorado, with him on the brief) for Appellee.

Before TACHA, HARTZ, Circuit Judges, and DEGIUSTI, * District Judge.

HARTZ, Circuit Judge.

When a dream home turns into a nightmare, litigation happens. Platt and

Kelley Hubbell took out a $1,280,000 construction loan from Alpine Bank to

build a home. After some $800,000 had been disbursed to the contractor, the

Hubbells discovered that the home was less than one-third complete, necessary

building permits had not been obtained, and it might be cheaper to tear down what

*
Honorable Timothy D. DeGiusti, U.S. District Court Judge, Western
District of Oklahoma, sitting by designation.
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had been built and start over. The Bank sued the Hubbells when they failed to

repay the loan upon maturity. The Hubbells counterclaimed against the Bank for

breach of contract, negligent misrepresentation, fraudulent nondisclosure, and

violation of the Colorado Consumer Protection Act (CCPA). Underlying all the

counterclaims, as well as the Hubbells’ defense to the Bank’s claim, were

allegations that the Bank had not performed on its promises to oversee

construction and had misled the Hubbells regarding the contractor and the course

of construction. The United States District Court for the District of Colorado

entered summary judgment in favor of the Bank on all claims and counterclaims.

The Hubbells appeal, arguing in support of each of their counterclaims (and

stating that the same arguments compel reversal of the judgment in favor of the

Bank on its claim). We have jurisdiction under 28 U.S.C. § 1291.

We affirm the summary judgment because the Hubbells have failed to show

that the district court erred in rejecting its four counterclaims. The Hubbells’

contract counterclaim, based on an alleged breach of the contractually implied

duty of good faith and fair dealing arising from the Bank’s failure to oversee the

construction, is barred by the Limitation of Responsibility provision in the

Construction Loan Agreement (the Loan Agreement). With respect to the

negligent-misrepresentation counterclaims, we hold that one alleged

misrepresentation was nonactionable puffery and that the record does not support

a contention that the other alleged misrepresentations were made with the

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requisite state of mind. As for the fraudulent-nondisclosure counterclaims, we

agree with the district court that the Hubbells and the Bank did not have a

fiduciary relationship or relation of confidence that imposed on the Bank a duty to

disclose to the Hubbells negative information regarding the construction or the

contractor. And to the extent that the Hubbells contend that the Bank’s

nondisclosures violated any other duty to them, they have failed to support that

contention with sufficient argument to present it for our consideration on appeal.

Regarding the CCPA counterclaim, which was based on two alleged

misrepresentations by the Bank, we agree with the district court that one alleged

misrepresentation was mere puffery and that the other alleged misrepresentation

was not shown to have significantly impacted the public. Finally, we hold that

the district court committed no prejudicial error when it granted summary

judgment without first ruling on (1) the Hubbells’ motions to delay ruling until

certain discovery had been completed, (2) the Hubbells’ objections to the

magistrate judge’s denial of their motion to add two counterclaims, and (3) the

Hubbells’ objection to the magistrate judge’s order quashing a subpoena to a state

agency.

I. BACKGROUND

A. The Loan and Construction

We summarize the pertinent evidence presented to the district court with

respect to the Bank’s summary-judgment motion, viewing it in the light most

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favorable to the Hubbells. See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d

1213, 1216 (10th Cir. 2008). The Hubbells, who are both airline pilots, purchased

property in Colorado to build a custom home. When considering potential

lenders, they heard the Bank’s advertising slogan: “So . . . you’re about to buy a

new home, or build one. You concentrate on your dream. We’ll take care of

everything else.” Aplt. App. at 245. They consulted Elizabeth Cox, an assistant

vice-president at the Bank’s Carbondale branch, and expressed to her their

concerns about not being able to monitor the construction of their new home

while living out-of-state. Cox assured the Hubbells that the Bank would monitor

the project and conduct frequent inspections to ensure that the advances of funds

requested by the contractor matched the percentage of construction completed.

On January 22, 2003, the Hubbells executed the Loan Agreement, a

Promissory Note, and a Construction Deed of Trust with the Bank to finance the

building of their home. Under the Loan Agreement the Bank’s obligation to

advance funds for construction was subject “to the fulfillment to [the Bank’s]

satisfaction of all of the conditions set forth in this Agreement.” Id. at 60. The

conditions set forth in the Loan Agreement included the Bank’s (1) approval of

all contractors, (2) acceptance of construction plans and specifications, (3) receipt

of the Architect’s Contract, (4) receipt of all permits necessary for construction,

and (5) approval of a project budget. The Loan Agreement also required the

Hubbells to apply to the Bank for each advance of funds on a standard application

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form, but the Bank could, “[a]t its sole option,” disburse funds directly to the

contractor. Id. at 61.

Of central importance to the dispute before us is the Loan Agreement’s

Limitation of Responsibility provision, which attempted to eliminate the Bank’s

liability to anyone for its actions relating to the inspection of construction and the

advance of funds. It said:

The making of any Advance by [the Bank] shall not constitute or be
interpreted as either (A) an approval or acceptance by [the Bank] of
the work done through the date of the Advance, or (B) a
representation or indemnity by [the Bank] to any party against any
deficiency or defect in the work or against any breach of contract.
Inspections and approvals of the Plans and Specifications, the
Improvements, the workmanship and materials used in the
Improvements, and the exercise of any other right of inspection,
approval, or inquiry granted to [the Bank] in this Agreement are
acknowledged to be solely for the protection of [the Bank’s]
interests, and under no circumstances shall they be construed to
impose any responsibility for liability of any nature whatsoever on
[the Bank] to any party. Neither [the Hubbells] nor any contractor,
subcontractor, materialman, laborer, or any other person shall rely, or
have a right to rely, upon [the Bank’s] determination of the
appropriateness of any Advance. No disbursement or approval by
[the Bank] shall constitute a representation by [the Bank] as to the
nature of the Project, its construction, or its intended use for [the
Hubbells] or for any other person, nor shall it constitute an
Indemnity by [the Bank] to [the Hubbells] or to any other person
against any deficiency or defects in the Project or against any breach
of contract.

Id.
Before selecting a contractor, the Hubbells sought advice from the Bank.

They asked whether Carney Brothers Construction (CBC) (headed by Richard and

Ian Carney) was reputable. Joseph Scofield, a Bank officer, told them that (1)

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they could not do any better than CBC, (2) he knew co-owner Ian Carney

personally, and (3) he would have had CBC build his personal residence if CBC

had been available at the time. Scofield did not, however, inform the Hubbells

that CBC had a long-standing relationship with the Bank.

The Hubbells signed a construction agreement with CBC on January 23,

2003, the day after executing the Loan Agreement. Construction began in May

2003. Between May and December 2003, Bank assistant vice-president Cox made

six or seven inspections of the construction site and arranged for a third-party

inspector to report on the construction at least once or twice. But the Hubbells

contend that the extent of this oversight was inadequate. They complain that the

Bank failed

[1] to require complete plans and a meaningful budget before
closing; [2] to request an improvement survey that would have
revealed [a] siting error much earlier in the course of construction;
[3] to investigate [CBC’s] qualifications as a “design-build”
contractor; [4] to confirm issuance of required building permits; [5]
to prevent [CBC] from frontloading excessive profit and overhead
into the first draws [on the loan]; [and] [6] to confirm that the
amounts of draws by [CBC] matched the percentage of work
performed.

Aplt. Br. at 24. Of particular concern to the Hubbells was item 4, the Bank’s

failure to disclose that CBC had not obtained the necessary building permits.

When CBC told the Hubbells that it had obtained those permits, which it would

provide to the Bank, the Hubbells passed this information along to Cox. CBC’s

statement was false; it never obtained the permits. Yet no one at the Bank

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notified the Hubbells that CBC had not delivered the permits, and throughout the

project the Bank continued to recommend that the Hubbells approve advances to

CBC.

The Hubbells further complain that the Bank failed to disclose known

problems with CBC’s operating account at the Bank. The problems led the Bank

to terminate its relationship with CBC in June 2003. Thereafter, Cox amended

the procedure for advances to CBC from the Hubbells’ loan. Instead of CBC’s

paying the subcontractors directly, it had to write checks to the Bank, which then

distributed funds to the subcontractors. The Bank, however, did not inform the

Hubbells of these problems with CBC until September 2003, when Cox told them

only that CBC had occasionally paid subcontractors out of the construction loan

without obtaining lien waivers. Concerned by this disclosure, the Hubbells again

sought advice from the Bank, this time regarding whether they should fire their

contractor. Scofield advised them to continue with CBC, saying that Ian Carney

would “‘do the right thing’” and that the Bank would “make [CBC] do it right.”

Aplt. App. at 248, 256.

In the following months the Hubbells had several meetings with CBC and

the Bank in an attempt to resolve concerns about the pace of construction and the

rising costs. At a meeting on December 11, 2003, the Hubbells rejected a

settlement proposal from CBC and instead terminated the contractor. By this time

the Hubbells had approved advances of approximately $800,000 out of the total

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$1,280,000 under the Loan Agreement. The next day they discovered that an

inspector had ordered all construction to cease because CBC had never obtained

the necessary building permits. Later the Hubbells hired a licensed architect and

professional engineer to inspect the work. They were informed that (1) their

home was less than one-third complete, (2) much of the work would have to be

repaired or replaced because of significant design and construction defects, and

(3) it might be cheaper to tear down the whole thing and start over.

B. The Litigation Below

On July 25, 2004, the Hubbells’ Promissory Note matured. In November

the Bank filed a complaint on the note in Colorado state court, and the Hubbells

removed the action to federal court. On January 21, 2005, the Hubbells answered

the complaint and asserted counterclaims against the Bank for breach of contract,

negligent misrepresentation, fraudulent disclosure, and violation of the CCPA.

On April 5, 2006, the Bank filed a motion for summary judgment.

Before responding to the Bank’s motion, the Hubbells moved to compel the

Bank to produce internal bank emails concerning the Hubbells’ loan and the CBC

bank account. They then moved under Federal Rule of Civil Procedure 56(f) for

an extension of time to respond to the motion for summary judgment while

awaiting production of the bank emails. The court granted the motion in part,

giving the Hubbells until May 1 to respond to the Bank’s motion. The Hubbells

filed a timely response, but included within it a renewed request for an extension

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of time under Rule 56(f) until the emails were produced and the depositions of

Bank officers Cox, Scofield, and Richard Fuller were completed.

On May 26, 2006, the Hubbells filed a motion to amend their counterclaim.

A magistrate judge granted the motion in part by allowing the Hubbells to amend

to reflect their current domicile, but she refused to permit new counterclaims of

negligence and breach of fiduciary duty because the motion was untimely. On

June 8, 2006, the Hubbells served a subpoena duces tecum on the Colorado

Division of Banking, seeking to discover records regarding CBC and its

principals. The Division filed a motion to quash the subpoena, which the

magistrate judge granted. The Hubbells filed objections to the magistrate judge’s

rulings on their motion to amend and the Division’s motion to quash.

After the Hubbells responded to the Bank’s motion for summary judgment,

discovery continued. The Hubbells deposed Fuller on May 18, 2006, and Cox and

Scofield on May 19. They also deposed two technical employees at the Bank,

who stated that the emails sought by the Hubbells were no longer retrievable from

the Bank’s computer systems; as a result of this testimony, the Hubbells withdrew

their motion to compel discovery of bank emails on May 22. On December 6,

2006, the Hubbells deposed Scofield a second time, thus completing the discovery

for which they had requested an extension of time in their second Rule 56(f)

motion. The Hubbells did not, however, file a supplemental brief regarding the

summary-judgment motion before the district court granted the motion on

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March 2, 2007. The court said nothing further regarding the Hubbells’ requested

relief under Rule 56(f), and it ruled that their objections to the magistrate judge’s

rulings were mooted by the summary judgment.

II. DISCUSSION

We review de novo the district court’s grant of summary judgment. See

Pignanelli, 540 F.3d at 1216. Summary judgment should be granted if “there is

no genuine issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

A. Breach-of-Contract Claim

The Hubbells acknowledge that the Loan Agreement gave the Bank

discretion regarding the extent to which it would oversee construction before

making disbursements to CBC from the Hubbells’ loan. But they contend that the

Bank violated the implied contractual duty of good faith and fair dealing when it

failed to notify them how it would be exercising that discretion. The district

court granted the Bank summary judgment on this claim. We agree with the

district court.

Colorado law “recognizes that every contract contains an implied duty of

good faith and fair dealing.” Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo.

1995). This duty prohibits a party from exercising “discretion conferred by the

contract to act dishonestly or to act outside of accepted commercial practices to

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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. 1994).

The Loan Agreement permitted the Bank to oversee construction, granting

it the right to deny advances to the contractor until the satisfaction of various

conditions, such as its receipt of necessary permits and its approval of the

contractor and of the contractor’s progress. The agreement also gave the Bank

the right not to insist on these conditions. The Hubbells argue, however, that the

Bank’s duty of good faith and fair dealing obligated it to tell the Hubbells if it

was not going to do so, so that the Hubbells could take other steps to protect

themselves.

But the duty of good faith and fair dealing “will not contradict terms or

conditions for which a party [to the contract] has bargained.” Amoco Oil Co., 908

P.2d at 498. It “does not obligate a party to accept a material change in the terms

of the contract or to assume obligations that vary or contradict the contract’s

express provisions.” Wells Fargo, 872 P.2d at 1363.

We therefore must reject the Hubbells’ good-faith-and-fair-dealing

argument because the duty they are trying to impose is contrary to the terms of

the Loan Agreement. The Loan Agreement’s Limitation of Responsibility

provision includes the following sentence:

The making of any Advance by [the Bank] shall not constitute or be
interpreted as either (A) an approval or acceptance by [the Bank] of
the work done through the date of the Advance, or (B) a

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 representation or indemnity by [the Bank] to any party against any
deficiency or defect in the work or against any breach of contract.

Aplt. App. at 61. In addition, any oversight by the Bank of the construction

project was “acknowledged to be solely for the protection of [the Bank’s]

interests,” and under no circumstances to “be construed to impose any

responsibility or liability . . . on [the Bank] to any party.” Id. Also, the Hubbells

had no “right to rely upon [the Bank’s] determination of the appropriateness of

any Advance.” Id. And “[n]o disbursement or approval by [the Bank] . . .

constitute[d] a representation by [the Bank] as to the nature of the Project, its

construction or its intended use for [the Hubbells] or for any other person nor

[did] it constitute an indemnity by [the Bank] to [the Hubbells] or to any other

person against any deficiency or defects in the Project or against any breach of

any contract.” Id.

This language protects the Bank from any liability for failures in

determining the propriety of advances. To impose liability on the Bank for not

disclosing its failures to the Hubbells would be inconsistent with that provision.

We must keep in mind that “[t]he good faith performance doctrine is generally

used to effectuate the intentions of the parties or to honor their reasonable

expectations.” Amoco Oil, 908 P.2d at 498. It would beggar the imagination to

believe that the Bank, after making so clear in the Limitation of Responsibility

provision that it owed the Hubbells no duty to oversee construction, was assuming

a duty to inform the Hubbells whenever, intentionally or through inadvertence, it
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failed to check on something before disbursing funds. And it would have been

unreasonable for the Hubbells to expect such notification from the Bank. The

whole thrust of the Limitation of Responsibility provision is to inform the

Hubbells that they have no right to rely on the Bank with respect to overseeing

construction. Given the Bank’s contractual immunity from liability to the

Hubbells for failure to oversee construction, we cannot read into the Loan

Agreement an implied duty of notice that would permit any claim of failure of

oversight to be repackaged as a claim of failure to notify the Hubbells of the

failure of oversight. Accordingly, we affirm the district court’s award of

summary judgment to the Bank on the Hubbells’ breach-of-contract counterclaim.

B. Tort Claims

The Hubbells’ counterclaim labels their first cause of action as “Negligent

Misrepresentation” and their third as “Fraudulent Nondisclosure.” Their appellate

briefs, however, do not clearly delineate between the two theories. For example,

their opening brief merges the discussion of both causes of action in one section

of the argument, which begins:

Bank made a number of representations and omissions, see
[Statement of Facts], which the factfinder could reasonably consider
to trigger liability under fraud or negligent misrepresentation theories
(the elements of which are discussed further below):

[1] Bank advertising/philosophy of “You take care of your dream.
We’ll take care of everything else.” with no disclaimer;

[2] Cox’s representations to Hubbells and other potential
construction loan customers that Bank would conduct frequent
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 inspections, monitor project from beginning to end, and act on behalf
of borrowers, again with no disclaimer;

[3] Scofield recommendations regarding [CBC] before Hubbells
entered into general contract, without disclosure of Bank’s existing
relationship with [CBC];

[4] Cox failure to disclose that Bank did not receive permits after
Hubbells relayed [CBC’s] statement that permits would be dropped
off;

[5] Bank failure to disclose waiver or inaction regarding inspections
and other conditions precedent to disbursements; and

[6] Scofield recommendations regarding continuing to work with
[CBC], without disclosure of [CBC] banking irregularities and
Bank’s decision to close [CBC] accounts.

Aplt Br. 34–35. As best we can tell, these six items belong in the following

categories: The first two speak of affirmative statements, so they are alleged

misrepresentations. The last four refer to failures to disclose, so we assume that

those alleged failures are fraudulent nondisclosures. In addition, items 3 and 6

refer to affirmative recommendations, suggesting that those recommendations

were themselves misrepresentations; but we must be careful that we do not do the

Hubbells’ work for them in presenting theories and arguments (more on this

later). We begin with the alleged misrepresentations.

1. Negligent Misrepresentation

Under Colorado law, “[t]o prevail on a claim for negligent

misrepresentation,” a plaintiff must prove that “(1) [the defendant] supplied false

information in a business transaction; (2) it failed to exercise reasonable care or

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competence in obtaining or communicating that information; and (3) [the

plaintiff] justifiably relied upon the false information.” Campbell v. Summit

Plaza Assocs., 192 P.3d 465, 477 (Colo. Ct. App. 2008); see Restatement

(Second) of Torts § 552 (1977).

The Hubbells’ first claim is based on the Bank’s advertising slogan: “So

. . . you’re about to buy a new home, or build one. You concentrate on your

dream. We’ll take care of everything else.” Aplt. App. at 245. But this slogan

cannot trigger liability because it amounts to mere puffery. The term puffery is

used to characterize those vague generalities that no reasonable person would rely

on as assertions of particular facts. In a classic statement of the underlying

principle (which also serves as a reminder that politics has not changed that much

in the last century), Learned Hand wrote:

There are some kinds of talk which no sensible man takes seriously,
and if he does he suffers from his credulity. If we were all
scrupulously honest, it would not be so; but, as it is, neither party
usually believes what the seller says about his own opinions, and
each knows it. Such statements, like the claims of campaign
managers before election, are rather designed to allay the suspicion
which would attend their absence than to be understood as having
any relation to objective truth. It is quite true that they induce a
compliant temper in the buyer, but it is by a much more subtle
process than through the acceptance of his claims for his wares.

Vulcan Metals Co., Inc. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918). In

determining whether a statement is puffery, the context matters. The relative

expertise of the speaker and the listener can be a critical factor. See id. So can

the size of the audience. What is said to a particular person may take on meaning
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that would not be present if made to a large group. Thus, mass advertising

expressed in vague terms (as in political campaigns) is not relied on by rational

adults. For example, the slogan “You’re in good hands with Allstate” was held to

be puffery in Rodio v. Smith, 587 A.2d 621, 624 (N.J. 1991).

One reason such statements are not to be relied on is that they could not

possibly mean everything that might be implied. Here, the advertisement says

that the customers need only dream and the Bank will “take care of everything

else.” Aplt. App. at 245. Such as build the home, choose a site, select the

builder, supervise construction? A reasonable person desiring the Bank to

perform in a particular way would need a more specific assurance than “we’ll take

care of everything else.” Id. Accordingly, we affirm summary judgment on this

misrepresentation claim.

The Hubbells next seek to impose liability on the Bank for Cox’s promise

to oversee construction. Although this promise was not puffery, such a promise

cannot serve as the predicate for a negligent-misrepresentation claim. See High

Country Movin’, Inc. v. U.S. West Direct Co., 839 P.2d 469, 471 (Colo. Ct. App.

1992) (negligent misrepresentation claim “cannot be based solely on the

nonperformance of a promise to do something at a future time.”). This is not

some obscure technical rule. It is a natural consequence of the meanings of the

terms negligent and misrepresentation. A misrepresentation conveys “false

information.” Campbell, 192 P.3d at 477; that is, it must be a false statement of

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fact. But a promise in itself contains no assertion of fact other than the implied

representation that the speaker intends to perform the promise. See High Country,

839 P.2d at 471; Restatement (Second) of Torts § 530 (“Misrepresentation of

Intention”). (Of course, when uttering the promise the speaker may make other

explicit or implicit assertions of fact, but that is not the issue here.) The

misrepresentation must therefore be that the promissor is falsely declaring that he

has the intent to perform. If the promissor intends not to perform, however, the

misrepresentation (that the promissor intends to perform) is not negligent; it is,

rather, knowing and intentional, see Kinsey v. Preeson, 746 P.2d 542, 551 (Colo.

1987) (“A promise concerning a future act, when coupled with a present intention

not to fulfill the promise, can be a misrepresentation which is actionable as

fraud.” (internal quotation marks omitted)).

On the other hand, the Hubbells could be asserting that Cox’s promise was

intentionally false. To prevail on a claim for fraudulent misrepresentation, a

plaintiff must prove that (1) the defendant made a knowing misrepresentation, (2)

the plaintiff relied on the misrepresentation, and (3) the plaintiff’s reliance was

justified. Williams v. Boyle, 72 P.3d 392, 399 (Colo. Ct. App. 2003). Although

the Hubbells’ complaint labels the Bank’s alleged misrepresentations as

negligent, rather than fraudulent, misrepresentations, it alleges that the Bank

“knew or should have known” that its representations were false, Aplt. App. at

531 (emphasis added); and their appellate briefs employ language suggesting that

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the alleged misrepresentations were intentional. “[L]ooking beyond labels to the

substance of the allegations,” we can read the negligent-misrepresentation claim

to state a claim for fraudulent misrepresentation as well. Minger v. Green, 239

F.3d 793, 799 (6th Cir. 2002) (construing claim of negligent misrepresentation as

encompassing intentional misrepresentation). We must construe pleadings “so as

to do justice,” Fed. R. Civ. P. 8(e), which requires “that we not rely solely on

labels in a complaint, but that we probe deeper and examine the substance.”

Minger, 239 F.3d at 799. Thus, we also consider a possible claim that Cox made

a fraudulent misrepresentation to the Hubbells when she promised to oversee

construction. (We recognize that the complaint may also be alleging that the

Bank’s advertising slogan was a fraudulent, and not just a negligent,

misrepresentation. But our above discussion would dispose of such a claim

because puffery cannot be the basis of any misrepresentation claim; whether the

misrepresentation was made negligently or intentionally, a reasonable person

would not rely on it. See Vulcan Metals, 248 F. at 854 (addressing claim of

fraudulent misrepresentation); Glen Holly Entm’t, Inc. v. Tektronix, Inc., 352 F.3d

367, 379 (9th Cir. 2003) (addressing claims of intentional and negligent

misrepresentation).)

Nevertheless, we affirm the summary judgment in favor of the Bank on the

claim of fraudulent misrepresentation by Cox. Although the district court stated

that there was “a genuine issue of material fact as to whether the Bank intended to

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fulfill its alleged promise to oversee the construction project for [the Hubbells’]

benefit,” Aplt. App. at 601, we respectfully disagree, at least insofar as the

court’s statement is addressing the Bank’s intent at the time that the promise was

made. To begin with, as the district court appears to acknowledge earlier in its

opinion, Cox never stated that the inspections to be conducted by the Bank were

intended for the Hubbells’ benefit. The Hubbells submitted affidavits that they

were assured that the Bank would “be on [their] side,” id. at 245, 253; but that

alleged statement was so vague as to be puffery. The concrete promises allegedly

made by Cox concerned the scope and frequency of Bank inspections of the

construction. There is no evidence, however, that these promises were knowingly

false—that is, uttered without intent to perform as promised. Indeed, the

promised inspections would benefit the Bank by ensuring the value of the home,

which was the collateral for its loan. Its interest would appear to be congruent to

the Hubbells’. To be sure, when CBC and its owners were in financial difficulty

and owed large sums to the Bank, the interests of the Hubbells and the Bank

diverged; the Bank then may have had an incentive to pay CBC from the

Hubbells’ loan proceeds, even at the risk that the collateral for the Hubbells’ loan

was impaired. But the Hubbells have not pointed us to any evidence in the

record, nor have we found any, that the Bank had any concerns about CBC’s

financial condition before the Hubbells entered into the Loan Agreement with the

Bank; on the contrary, their counterclaim alleges that “after construction began,

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[the Bank] became aware of improper bookkeeping and banking practices by

CBC, . . . including . . . issuing checks to subcontractors for which there were

insufficient funds.” Aplt. App. at 86 (emphasis added). Accordingly, summary

judgment was proper on this claim. Our ground for affirmance differs from the

ground relied upon by the district court, but we can affirm on any ground

supported by the record, so long as the appellant has “had a fair opportunity to

address that ground.” Maldonado v. City of Altus, 433 F.3d 1294, 1302–03 (10th

Cir. 2006). Here, the Hubbells’ response to the Bank’s summary-judgment

motion directly addressed the issue of the falsity of Cox’s alleged promises when

they were made, and the Hubbells devote two sentences to the issue in their

opening brief on appeal. Our affirmance therefore does not blindside them.

That leaves one further possible misrepresentation claim. As noted in our

initial discussion of the Hubbells’ misrepresentation causes of action, they may be

contending that the Bank’s statements recommending CBC were affirmative

misrepresentations. But if so, they have failed to brief the issue adequately.

They present no argument or evidence that the recommendations were in any

respect false except insofar as some information was not disclosed. See Murrell

v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (absence of developed

argument waives issue for appellate review). We therefore restrict our attention

to the alleged failures to disclose.

2. Fraudulent Nondisclosure

-21-
 The Hubbells’ opening brief points to four alleged fraudulent

nondisclosures: (1) the failure to disclose the Bank’s existing relationship with

CBC; (2) the failure to disclose that the Bank had not received the necessary

building permits; (3) the failure to disclose that the Bank would not be exercising

discretion to inspect the Hubbells’ construction and oversee disbursements of the

loan proceeds; and (4) the failure to disclose CBC’s banking irregularities.

Under Colorado law, “[t]o prevail on a claim for fraudulent nondisclosure,

a plaintiff must demonstrate . . . that the defendant failed to disclose a past or

present fact that he or she had a duty to disclose, with intent to induce the

plaintiff to take a course of action he or she would not otherwise have taken, and

that plaintiff justifiably relied on the omission.” Wisehart v. Zions

Bancorporation, 49 P.3d 1200, 1204 (Colo. Ct. App. 2002). “A defendant has a

duty to disclose to a plaintiff with whom he or she deals material facts that in

equity or good conscience should be disclosed.” Mallon Oil Co. v.

Bowen/Edwards Assocs., Inc., 965 P.2d 105, 111 (Colo. 1998) (internal quotation

marks omitted). The Colorado Supreme Court has stated that “[t]o determine

whether the circumstances of a particular case give rise to a duty to disclose in

‘equity or good conscience,’ the Restatement (Second) of Torts § 551(2) provides

helpful guidance.” Id. Section 551(2) provides:

One party to a business transaction is under a duty to exercise
reasonable care to disclose to the other before the transaction is
consummated,

-22-
 (a) matters known to him that the other is entitled to know because of
a fiduciary or other similar relation of trust and confidence between
them; and

(b) matters known to him that he knows to be necessary to prevent
his partial or ambiguous statement of the facts from being
misleading; and

(c) subsequently acquired information that he knows will make
untrue or misleading a previous representation that when made was
true or believed to be so; and

(d) the falsity of a representation not made with the expectation that
it would be acted upon, if he subsequently learns that the other is
about to act in reliance upon it in a transaction with him; and

(e) facts basic to the transaction, if he knows that the other is about
to enter into it under a mistake as to them, and that the other, because
of the relationship between them, the customs of the trade or other
objective circumstances, would reasonably expect a disclosure of
those facts.

The district court disposed of the Hubbells’ failure-to-disclose claims on

the ground that the Hubbells had alleged insufficient facts to demonstrate that the

Bank owed them a fiduciary or confidential duty other than its duties under the

Loan Agreement. The Hubbells raise two objections to the ruling: (1) that they

did show that the Bank owed them a fiduciary or confidential duty requiring it to

disclose the information; and (2) that the district court failed to address the other

circumstances that can give rise to a duty to disclose. We start with their second

objection.

The Hubbells argue that “Colorado law recognizes six different means to

establish a duty to disclose, only one of which is the existence of a confidential or

-23-
fiduciary relationship.” Aplt. Br. at 37. In support, they cite the Colorado Civil

Jury Instructions—which largely track Restatement § 551(2). ** They assert that

[a]ny of the five alternative circumstances [other than the existence
of a confidential or fiduciary relationship] could be found to apply to
the Bank’s habit of making selective representations while
withholding other relevant information; therefore, [the] Hubbells
have a viable nondisclosure claim regardless of whether they had a
confidential or fiduciary relationship with Bank.

Aplt. Br. at 38. Although the Hubbells are correct that Colorado law recognizes

more than one circumstance giving rise to a duty to disclose, their brief provides

absolutely no further discussion of the five alternative circumstances. They have

**
Colorado Civil Jury Instruction 19:5 states:

The defendant had a duty to disclose material facts if (he)(she) knew
about them and if:
(1) the defendant and the plaintiff were in a confidential or fiduciary
relationship or
(2) the defendant communicated some facts, but not all material
facts, knowing that they would create a false impression in the mind
of the plaintiff or
(3) the defendant knew that by his [or] her own unclear or deceptive
words or conduct that he [or] she created a false impression of the
actual facts in the mind of the plaintiff or
(4) the defendant knew that the plaintiff could not discover the facts
for himself [or] herself or
(5) the defendant communicated material facts that were true or that
he [or] she believed were true at the time they were communicated.
Later, the defendant learned that the material facts were not [or] no
longer true and knew that the plaintiff was acting under the
impression that the facts were true or
(6) the defendant promised to perform an act or communicated an
intention to perform an act knowing that the undisclosed facts made
his [or] her performance unlikely.

(brackets and parentheses omitted)
-24-
not suggested, much less explained, which of the five circumstances arose during

their relationship with the Bank, or how a specific circumstance led to a duty to

disclose a particular item of information. Their brief thus does not adequately

present for review a contention that the Bank had a duty to disclose under any of

the five alternative circumstances. Appellants must do more than identify an

issue; they must explain why it has merit. See Utahns for Better Transp. v. U.S.

Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (“We do not consider

merely including an issue within a list to be adequate briefing.”)

To be sure, there is one situation in which the Hubbells would have no

burden to show the merits of a nondisclosure claim based on one or more of the

five alternative circumstances. If they had raised such a claim in district court

and the Bank’s motion for summary judgment had not presented argument and

evidence showing that the claim lacked merit, summary judgment would have

been inappropriate. After all, it is not the party opposing summary judgment that

has the burden of justifying its claim; the movant must establish the lack of merit.

See Fed. R. Civ. P. 54(C).

But the Hubbells did not raise such a claim below. The Hubbells’

counterclaim for fraudulent nondisclosure, after a paragraph incorporating the

previous 36 paragraphs of the counterclaim, states:

38. [Bank] discovered material information, unknown to the
Hubbells, about CBC and its principals that it had a duty to disclose
due to the special relationship that existed between the Bank and the
Hubbells.
-25-
 39. Despite its duty to disclose all material information
regarding CBC and its principals to the Hubbells, [Bank] failed to do
so or provided incomplete and misleading information that justifiably
induced the Hubbells to continue to use the services of CBC on the
Project.
40. As a result of the Bank’s failure to disclose information
it had relating to CBC and its principals, the Hubbells have been
damaged in an amount to be proven at trial.

Aplt. App. at 91 (emphasis added). None of the five alternative circumstances

supporting a nondisclosure claim is based on a “special relationship.” One can

naturally infer that the Hubbell’s counterclaim is relying solely on the existence

of a “confidential or fiduciary relationship.” Colo. Civ. J. Instr. 19:5(1) (brackets

omitted). The Bank so interpreted the counterclaim and stated in its summary-

judgment motion:

[The Hubbells] assert that [the] Bank had a duty to disclose
information regarding CBC and its principals with respect to their
business and personal financial practices. However, as set forth
above, Defendants can not establish that Alpine Bank was
Defendants’ fiduciary—a necessary showing to provide a duty
independent of those provided in the contracts between the parties.

Aplt. App. at 123.

The Hubbells’ response to the Bank’s summary-judgment motion did not

contest the Bank’s statement regarding the necessity of a fiduciary relationship.

The closest that the response came to a reference to the alternative circumstances

supporting a fraudulent-nondisclosure claim was a citation (the third in a string

cite) to Colorado Civil Jury Instruction 19:5 with the parenthetical “(duty to

disclose material information if falsehood later discovered).” Id. at 231. But the

-26-
response does not develop an argument on that proposition. We find nowhere, for

example, a contention that the Bank made a representation, later discovered it was

false, and then violated this duty to disclose by not informing the Hubbells of the

falsity. The Hubbell’s failure in this regard is particularly significant because the

complaint itself did not assert such a theory of liability. If the Hubbell’s response

to the Bank’s summary-judgment motion intended to add an additional theory, the

statement of the new theory needed to be much more developed and the addition

needed to be explicit.

Thus we will address only whether the Bank had a duty to disclose

information because of the existence of a fiduciary relationship or relation of

confidence with the Hubbells—the only circumstance that was adequately briefed.

We affirm the district court’s decision that the Bank did not have a relation

of trust or confidence with the Hubbells. Under Colorado law, “no per se

fiduciary relationship exists by virtue of the borrower-lender relationship between

a bank . . . and a customer of the bank.” First Nat’l Bank v. Theos, 794 P.2d

1055, 1060 (Colo. Ct. App. 1990); see Premier Farm Credit, PCA v. W-Cattle,

LLC, 155 P.3d 504, 523 (Colo. Ct. App. 2006) (“In the absence of special

circumstances, the relationship between a lending institution and its customer is

merely one of creditor and debtor.”) As the Hubbells state in their opening brief

on appeal, they must establish something more—namely, that “(1) [they] actually

reposed a special trust or confidence in the [Bank]; (2) such trust was justifiable;

-27-
and (3) the [Bank] either invited or ostensibly accepted the trust imposed.” Aplt.

Br. at 40 (citing Theos, 794 P.2d at 1061 (“The party claiming a confidential

relationship must show . . . that a special trust or confidence was in fact reposed,

that its reposition was justifiable, and that the other party either invited or

ostensibly accepted the trust imposed.”)).

The Hubbells have failed to show any acceptance by the Bank of a relation

of trust or confidence on which the Hubbells could rely. In our discussion of the

Hubbells’ misrepresentation claim, we have already explained that the Hubbells

could not reasonably rely on the Bank’s advertising slogan that it would “take

care of everything else.” Thus, the slogan did not create a relation of trust or

confidence.

Nor did any statements to the Hubbells by Cox or other bank officers

before the Loan Agreement was entered into. Until that agreement was effective,

the Bank could hardly have had a duty to the Hubbells regarding overseeing the

construction or CBC (which was not even selected as the contractor until the day

after execution of the Loan Agreement). And once the Hubbells signed the Loan

Agreement, they were clearly on notice, from the terms of the Limitation of

Responsibility provision, that the Bank had not accepted any position of trust or

confidence; on the contrary, that provision unambiguously relieved the Bank of

any duties on which the Hubbells claim reliance. To be sure, Bank officers

-28-
responded to the Hubbells’ inquiries regarding CBC. But a willingness to answer

questions does not in itself create a relation of trust or confidence.

All this is not to say that there exists no legal theory under which the Bank

may have been liable for not disclosing certain information to the Hubbells. It is

not our task, however, to construct the Hubbells’ theories and arguments for

them. Based on the arguments that they have properly presented to this court, we

hold that the district court committed no error in rejecting their nondisclosure

claims.

C. Colorado Consumer Protection Act

In a perfunctory paragraph of their opening brief, the Hubbells contend that

two of the Bank’s representations violated the Colorado Consumer Protection Act

(CCPA), Colo. Rev. Stat. §§ 6-1-101 to -1120 (2008)—namely, (1) the

advertising slogan, “So . . . you’re about to buy a new home, or build one. You

concentrate on your dream. We’ll take care of everything else,” Apt. App. at 245,

and (2) assistant vice-president Cox’s statement to all borrowers that the Bank

would oversee construction. “The CCPA was enacted to regulate commercial

activities and practices which, because of their nature, may prove injurious,

offensive, or dangerous to the public.” Rhino Linings USA, Inc. v. Rocky

Mountain Rhino Lining, Inc., 62 P.3d 142, 146 (Colo. 2003) (internal quotation

marks omitted). To prevail on their CCPA claim, the Hubbells must show:

(1) that [the Bank] engaged in an unfair or deceptive trade practice;
(2) that the challenged practice occurred in the course of [the Bank’s]
-29-
 business, vocation or occupation; (3) that it significantly impacts the
public as actual or potential consumers of the [Bank’s] goods,
services or property; (4) that [the Hubbells] suffered injury in fact to
a legally protected interest; and (5) that the challenged practice
caused [the Hubbells’] injury.

Hall v. Walter, 969 P.2d 224, 235 (Colo. 1998).

We can quickly dispose of the CCPA claim based on the Bank’s advertising

slogan. “[T]he CCPA does not, as a matter of law, make actionable a statement

which would otherwise be mere puffery.” Park Rise Homeowners Ass’n, Inc. v.

Resource Const. Co., 155 P.3d 427, 435 (Colo. Ct. App. 2006). Because we have

already determined that the advertising slogan was puffery, we affirm summary

judgment on this claim.

We also affirm the district court’s ruling that Cox’s precontract promise to

oversee construction did not violate the CCPA. We agree with the court below

that the Hubbells did not demonstrate that this representation had a significant

public impact.

To determine whether a practice challenged under the CCPA significantly

impacts the public, courts should consider:

(1) the number of consumers directly affected by the challenged
practice, (2) the relative sophistication and bargaining power of the
consumers affected by the challenged practice, and (3) evidence that
the challenged practice has previously impacted other consumers or
has the significant potential to do so in the future.

Rhino Linings, 62 P.3d at 149. Cox’s testimony supports the inference that the

representation she made to the Hubbells was made to all potential borrowers. But

-30-
the Hubbells have not provided us with evidence that this promise has harmed

other borrowers in the past or is likely to do so in the future. In particular, the

Hubbells have not shown that any significant number of people taking out

construction loans would be dependent on a bank to be sure that the contractor

was proceeding properly. We note that the Loan Agreement signed by the

Hubbells contemplates that the borrower will have an architect. See Aplt. App. at

60 (“Borrower shall have furnished in form and substance satisfactory to Lender

an executed copy of the Architect’s Contract and an executed copy of the

Construction Contract.”). And given the amount of money required to build a

home, one would expect that a borrower who is totally relying on the Bank would

look in the loan agreement for confirmation of Cox’s promise and would inquire

about Cox’s promise if the language in the agreement contained anything like the

Limitation of Responsibility provision in the Hubbells’ Loan Agreement. Perhaps

our assumptions about typical behavior are incorrect, but we are unwilling to

presume the contrary in the absence of evidence from the Hubbells. The record

includes no “evidence that the challenged practice has previously impacted other

consumers or has the significant potential to do so in the future.” Brodeur v. Am.

Home Assur. Co., 169 P.3d 139, 156 (Colo. 2007).

Accordingly, we affirm summary judgment on the Hubbells’ CCPA claims.

D. Alleged Procedural Errors

-31-
 Finally, the Hubbells complain about (1) the district court’s failure to grant

their motions under Federal Rule of Civil Procedure 56(f) for additional time to

conduct discovery before responding to the Bank’s motion for summary judgment

and (2) the district court’s failure to review the magistrate judge’s orders

quashing a subpoena and denying the Hubbells’ motion to add two causes of

action to their counterclaim. We hold that the district court did not commit

reversible error.

1. Rule 56(f) Motions

As part of their discovery efforts in district court, the Hubbells requested

the Bank to produce internal emails regarding the Bank’s relationship with them

and with CBC. The Bank failed to produce these emails. After the Bank moved

for summary judgment on April 5, 2006, the Hubbells moved to compel

production of the emails. Because their response to the summary-judgment

motion was due on April 25, the Hubbells also moved the court under Rule 56(f)

to extend the time to respond to the summary-judgment motion until the Bank

produced the emails. The court granted the motion in part, extending the deadline

to respond until May 1. But in their May 1 response the Hubbells included a

renewed request under Rule 56(f) that the district court postpone ruling on the

summary-judgment motion until the Bank produced the internal emails and the

Hubbells completed taking depositions of Bank officers Cox, Scofield, and Fuller,

-32-
so that the Hubbells could supplement their response to the motion. The district

court never addressed the second Rule 56(f) motion.

The Hubbells contend that the district court abused its discretion by

denying their first request and by failing to rule on their second request under

Rule 56(f). But the Hubbells have failed to show any prejudice from the district

court’s failure to grant them the relief they requested. The court did not decide

the summary-judgment motion until March 2, 2007, ten months after the

Hubbells’ second Rule 56(f) motion. In the interim the Hubbells deposed two

technical employees of the Bank who informed them that the desired internal

emails were no longer retrievable, and the Hubbells withdrew their motion to

compel production of the emails. Also, the Hubbells completed their depositions

of Cox, Scofield, and Fuller. Thus, just as the Hubbells had requested, the court

did not rule before they had completed their desired discovery. All the discovery

referred to in both the Rule 56(f) motions had been completed (or withdrawn in

the case of the request for emails) by December 6, 2006, about four months

before the court ruled. Yet the Hubbells made no attempt to provide the district

court with evidence from the new depositions that would support their opposition

to summary judgment. Because the Hubbells suffered no prejudice from the

district court’s failure to grant the relief requested in the first Rule 56(f) motion

or to rule on the second motion, we grant no relief. See McInnis v. Fairfield

Communities, Inc., 458 F.3d 1129, 1144–45 (10th Cir. 2006).

-33-
 We are not persuaded otherwise by Patty Precision v. Brown & Sharpe

Manufacturing. Co., 742 F.2d 1260 (10th Cir. 1984), on which the Hubbells rely.

In that case we reversed the district court’s entry of summary judgment for the

defendants because it had not expressly ruled on the plaintiff’s Rule 56(f) motion.

Id. at 1264–65. The Rule 56(f) motion had been filed in response to the

defendants’ motion for a protective order to stay discovery pending the

disposition of their summary-judgment motion. Id. at 1263. The plaintiff had not

pursued further discovery before the district court entered its ruling on the

summary-judgment motion, and we said that it had been appropriate for the

plaintiff to await the court’s decision on the stay motion before proceeding with

discovery. Id. at 1265. Thus, unlike in this case, the party seeking Rule 56(f)

relief had not completed its desired discovery before the court granted summary

judgment, and there would have been no basis for us to conclude that failure to

rule on the Rule 56(f) motion had caused no prejudice.

2. Motions to Amend Counterclaim and Quash Subpoena

The Hubbells also contend that the district court abused its discretion by

granting summary judgment without first ruling on their objections to the

magistrate judge’s orders granting the Banking Division’s motion to quash the

Hubbells’ subpoena and denying the Hubbells’ motion to add additional

counterclaims. (After granting summary judgment, the district court entered a

minute order declaring that the Hubbells’ objections to both of the magistrate

-34-
judge’s decisions were moot.) We agree that the district court should have

addressed the Hubbells’ objections. “Review of the magistrate judge’s ruling is

required by the district court when a party timely files written objections to that

ruling.” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). But, again, the

Hubbells have failed to show prejudice.

With regard to the magistrate judge’s ruling on the motion to quash, the

Hubbells raise no argument on appeal that challenges the correctness of that

ruling. We can therefore presume that the district court would have affirmed it.

Moreover, the Hubbells did not ask the district court to delay ruling on summary

judgment until it had ruled on their objection to the magistrate judge’s ruling on

the motion to quash. They therefore cannot complain on appeal that the judge

first granted summary judgment and then ruled that the challenge to the

magistrate judge’s ruling was moot. The failure to grant unrequested relief is not

error. See Glenn v. First Nat. Bank in Grand Junction, 868 F.2d 368, 371 (10th

Cir. 1989) (because the “[a]ppellant did not move the court for leave to amend the

complaint[,] . . . the district judge committed no error in not ruling thereon.”).

As for the magistrate judge’s ruling that the Hubbells’ motion to add

additional counterclaims was untimely, the Hubbells have not argued, much less

made a showing, that the amendment would have benefitted them. Their proposed

amendment would have added two causes of action. The first was for breach of

fiduciary duty. But we have affirmed the district court’s decision that the Bank

-35-
was not acting as a fiduciary of the Hubbells. Accordingly, that claim would have

failed.

The second proposed counterclaim was for negligence. Yet it included no

factual allegations other than to incorporate by reference the allegations in the

original counterclaim. The Hubbells’ motion to amend in district court indicated

that the new negligence claim would add to the negligent-misrepresentation claim

a claim that the Bank had acted negligently in inspecting construction and

disbursing loan funds. But the Hubbells cannot recover from the Bank on account

of its negligence unless that negligence violated a duty owed by the Bank to the

Hubbells. See Vigil v. Franklin, 103 P.3d 322, 333 (Colo. 2004) (duty is an

element of negligence claims). The Hubbells have failed to set forth the source of

such a duty, and we see none. Perhaps a duty of this type could arise out of a

contractual relationship, but hardly in the situation before us, where the contract

explicitly disavows the duty in the Limitation of Responsibility provision.

Thus, the Hubbells suffered no prejudice from the district court’s failure to

rule on their objections to the magistrate judge’s quashing the subpoena and

refusing to allow addition of the two proffered counterclaims. The district court’s

failure does not entitle them to any relief.

III. CONCLUSION

We AFFIRM the judgement below. We DENY the Hubbells’ motion to file

a supplemental appendix.

-36-