947 F.2d 955 (10th Cir. 1991), 90-4172, Zions First Nat. Bank, N.A. v. Fisher

Docket Nº:90-4172.
Citation:947 F.2d 955
Party Name:ZIONS FIRST NATIONAL BANK, N.A., as Indenture Trustee for Noteholders of CFS Fox River, Ltd., Plaintiff-Appellee, v. Carl M. FISHER, D.O.; Rachel C. Fisher; Geoffrey O. Hartzler; Robert W. Miley; W. Michael Pryor; Elvin L. Shelton, Defendants-Appellants, and Richard L. Kolp, James A. Murray, Defendants.
Case Date:October 29, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 955

947 F.2d 955 (10th Cir. 1991)

ZIONS FIRST NATIONAL BANK, N.A., as Indenture Trustee for Noteholders of CFS Fox River, Ltd., Plaintiff-Appellee,

v.

Carl M. FISHER, D.O.; Rachel C. Fisher; Geoffrey O. Hartzler; Robert W. Miley; W. Michael Pryor; Elvin L. Shelton, Defendants-Appellants,

and

Richard L. Kolp, James A. Murray, Defendants.

No. 90-4172.

United States Court of Appeals, Tenth Circuit

October 29, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

D.Utah, No. 89-C-153-W; Winder, District Judge.

D.Utah

AFFIRMED.

Before MCKAY, Chief Judge, LOGAN and JOHN P. MOORE, Circuit Judges.

ORDER AND JUDGMENT [*]

JOHN P. MOORE, Circuit Judge.

This is an appeal by certain investors in a bankrupt limited partnership from a judgment of the district court which held the investors liable for the payment of a note pledged by the partnership as security for loans to the partnership. As a group, the investors raised several defenses which the district court held unavailing. In Zions First Nat'l Bank v. Bailey, No. 90-4087, (Keegan's Glen), we held the district court did not err in rejecting the claims of the Keegan's Glen defendants based on alleged security violations, failure of consideration, frustration of partnership purpose, and breach of fiduciary duty, among others. Because the common defenses claimed by the defendants in this case raise the same questions of law presented inKeegan's Glen, we affirm the district court's decision relating to these defenses in this case.

However, in addition to the defenses common to all the investors, Dr. W. Michael Pryor claimed he was no longer liable on the note because he had sold his interest to a third party. To allow the case to be joined on appeal withKeegan's Glen, the district court granted plaintiff's motion for summary judgment on this claim as well. Although the district court recognized Dr. Pryor's "novation" defense was not addressed in Keegan's Glen, it found Dr. Pryor's arguments without merit.

In 1984, Dr. Pryor became a limited partner in CFS Fox River, Ltd., a Utah limited partnership formed to acquire and operate an existing apartment complex located in Marietta, Georgia. Under the terms of the CFS Fox River Subscription Agreement and the Amended and Restated Limited Partnership Agreement of CFS Fox...

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