National Business Brokers, Ltd. v. Williamson , 67 F. App'x 527 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 10 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NATIONAL BUSINESS BROKERS,
LTD., a Colorado limited partnership,
Plaintiff-Appellee/
Cross-Appellant,
v. Nos. 02-1175 & 02-1181
(D.C. No. 00-WY-419-CB (OES))
JIM WILLIAMSON, an individual; (D. Colo.)
JIM WILLIAMSON PRODUCTIONS,
INC., a Louisiana corporation,
Defendants,
and
KEVIN BRILEY, an individual;
MARGORIE BRILEY, an individual,
Defendants-Appellants/
Cross-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
As the parties are familiar with the facts of this appeal, we will refer to
them only as necessary to explain our decision. In summary, plaintiff, a Colorado
limited partnership, is a business broker who brings buyers and sellers of
businesses together. In 1998, plaintiff entered into a listing contract with a third
party, Jim Williamson, to sell a business owned by Williamson in return for an
eight per cent commission. After the 1998 contract expired, plaintiff and
Williamson did not execute a new written contract.
Kevin and Margorie Briley eventually bought the Williamson business after
signing a nondisclosure agreement with plaintiff. The nondisclosure agreement
provided that plaintiff would introduce the Brileys to Williamson and conduct all
negotiations for the sale of the business. The Brileys agreed to indemnify both
the plaintiff and Williamson for any loss or damage suffered by either or both as a
result of any breach by the Brileys.
In December 1999, Williamson sold his business to the Brileys. Plaintiff
was not paid a commission and eventually sued Williamson, a resident of
Louisiana, his company, Jim Williamson Productions, Inc., a Louisiana
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corporation, and the Brileys in the federal district court in Colorado.
Williamson’s motion to dismiss for lack of personal jurisdiction made on behalf
of himself and his corporation was granted by the district court and affirmed by
this court. After the subsequent bench trial, the district court ruled that the
Brileys had breached the nondisclosure agreement with plaintiff, but that plaintiff
had failed to prove its tortious interference claim. The trial court entered
judgment in favor of plaintiff in the amount of $96,000. The Brileys appeal that
judgment, and plaintiff cross-appeals, arguing that the district court erred in
failing to award prejudgment interest and also erred in denying the claim for
tortious interference.
In their opening brief, the Brileys argue solely that Louisiana law should
have controlled this case and that, under Louisiana law, there was no valid
contract between plaintiff and Williamson, thus negating any basis for an award
of damages against the Brileys. We have thoroughly reviewed the record in this
case and find no evidence that this choice of law argument was ever presented to
the district court. Nor have the Brileys complied with 10th Cir. R. 28.2(C)(2)
requiring parties to an appeal to cite to the precise reference in the record where
an issue was raised and ruled upon. As a general matter, this court will not
consider an issue that was not raised in the district court. Walker v. Mather (In re
Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
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To avoid this result, the Brileys argue in their reply brief that establishing
the existence of a contract between plaintiff and Williamson was one of the
elements of plaintiff’s breach of contract claim and was fully litigated by the
parties. This, however, is a far cry from raising a choice of law issue before the
district court. This court will not consider a new theory on appeal, even one “that
falls under the same general category as an argument presented at trial or . . . a
theory that was discussed in a vague and ambiguous way” at trial. Bancamerica
Commercial Corp. v. Mosher Steel of Kan., Inc. , 100 F.3d 792, 798-99 (10th Cir.)
(quotation omitted), amended on other grounds in 103 F.3d 80 (10th Cir. 1996).
“[T]o preserve the integrity of the appellate structure, we should not be
considered a second shot forum . . . where secondary, back-up theories may be
mounted for the first time.” Tele-Communications, Inc. v. Comm’r , 104 F.3d
1229, 1233 (10th Cir. 1997) (quotation omitted). Because the choice of law
argument is the Brileys’ only basis for reversal and is raised too late, we affirm
the judgment of the district court on the breach of contract claim. 1
In its cross-appeal, plaintiff points out that the district court failed to
address the claim for prejudgment interest, a matter reserved for the discretion of
the trial court, see Atlantic Richfield Co. v. Farm Credit Bank of Wichita,
1
As plaintiff acknowledges, this disposition makes it unnecessary for us to
address plaintiff’s tortious interference argument.
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226 F.3d 1138, 1156 (10th Cir. 2000). 2
Because this issue was raised but not
ruled on by the district court, this case will be remanded to that court to first
address the issue. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R. Eric
Peterson Constr. Co.) , 951 F.2d 1175, 1182 (10th Cir. 1991).
The judgment of the United States District Court for the District of
Colorado is AFFIRMED in part, and this case is remanded for further proceedings
in accordance with this order and judgment.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
2
The Brileys argue, without support, that plaintiff has waived this claim
because it neglected to ask for prejudgment interest in a post-trial motion. The
fact that plaintiff’s claim for prejudgment interest was included in the complaint,
the pre-trial order, and in plaintiff’s opening and closing statements is sufficient
to avoid waiver.
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