Harrison v. Wahatoyas, Nos. 99-1319
| Citation | 253 F.3d 552 |
| Decision Date | 14 June 2001 |
| Docket Number | 99-1390,Nos. 99-1319 |
| Parties | (10th Cir. 2001) DWIGHT A. HARRISON, Plaintiff - Appellant, v. WAHATOYAS, L.L.C., a Colorado limited liability company; FIRST BANK, FSB, Defendants - Appellees, and GRANDOTE INTERNATIONAL LIMITED LIABILITY COMPANY, a Colorado limited liability company; U.S. BANK NATIONAL ASSOCIATION; GRANDOTE GOLF AND COUNTRY CLUB, a Colorado general partnership; DWIGHT A. HARRISON CORPORATION, a Colorado corporation; DAVID F. JONES, an individual; CHARLES HARRISON; JOHN P. HARRISON; PAUL D. HARRISON, Defendants. DWIGHT A. HARRISON, Plaintiff, v. WAHATOYAS, L.L.C., a Colorado limited liability company; FIRST BANK, FSB, Defendants -Appellees, v. CHARLES HARRISON, JOHN P. HARRISON, PAUL D. HARRISON, Defendants - Appellants, and GRANDOTE INTERNATIONAL LIMITED LIABILITY COMPANY, a Colorado limited liability company; U.S. BANK NATIONAL ASSOCIATION; GRANDOTE GOLF AND COUNTRY CLUB, a Colorado general partnership; DWIGHT A. HARRISON CORPORATION, a Colorado corporation; DAVID F. JONES, an individual, Defendants |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Appeal from the United States District Court for the District of Colorado (D.C. No. 94-WM-1505) [Copyrighted Material Omitted] Dianne M. Kueck (Chesley K. Culp, III, S. Kirk Ingebretsen with her on the briefs) Moye, Giles, O'Keefe, Vermeire & Gorrell, LLP, Denver, Colorado, for Appellants.
Stephen D. Bell of Dorsey & Whitney, LLP for First Bank, FSB and Laura B. Redstone of Ballard, Spahr, Andrews & Ingersoll, LLP for Wahatoyas, L.L.C. (Jessica L. Harshbarger, Dorsey & Whitney, LLP, Fredric J. Lewis, Senn, Lewis & Visciano, PC, and Harry L. Simon with them on the brief), Denver, Colorado, for Appellees.
Before SEYMOUR, McKAY, and LUCERO, Circuit Judges.
Appellants' predecessors in interest borrowed money from two banks to finance a golf course located in La Veta, Colorado.1 After financial difficulties, appellants settled the inevitable ensuing litigation by paying off the loan to one of the banks. They contend that an agreement between the banks required distribution of the settlement proceeds to appellants' debts with both banks. When appellants learned that the settlement money had not been apportioned, they filed suit alleging breach of contract, breach of the duties of good faith and fair dealing, breach of fiduciary duty, constructive fraud, and negligence. Appellants lost in all respects at the summary judgment stage and now appeal. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm.
Before delving into the facts of this case, we note that this appeal is significantly complicated by the fact that each party has gone through several incarnations. To assist the reader, each row in the following chart lists a party, with the parties' name changes shown by moving from left (earliest in time) to right (most recent). We refer to appellants collectively as "Grandote" and the other parties by the names applicable to the time period under discussion.
_________________________________________________________________________________
Plaintiffs- Grandote Golf Dwight Harri- Grandote Inter-
Appellants and Country son (succeeded national L.L.C
Club to Grandote Golf (succeeded to
and Country Dwight Harri-
Club's interest son's interest in
in Jan. 1991) Sept. 1993
managed by the
Harrison family
fater Dwight
and sons
Charles, John
and Paul)
___________________________________________________________________________________
Defendant- Fist Federal Resolution Wahatoyas
Appellee Savings and Trust Corp. L.L.C.(acquired
Loan Associa- ("RTC")(receiv- RTC's interest
tion of Esther- er for Emmetts- in Emmetts-
ville and Em- burg in June burg)
mettsburg 1990)
("Emmetts-
burg")
________________________________________________________________________________________________
Third Party Washington Metropolitan First Bank, U.S. Bank Na-
Defendant- Federal Savings Federal Bank of FSB (acquired tional Associa-
Appellee Bank ("Wash- Iowa ("Metwo- Metropolitan in tion (acquired
ington") politan") Feb. 1995) First Bank)
________________________________________________________________________________________________
In the mid-1980s, Grandote owned a piece of land and water rights in Huerfano County, Colorado. To develop a golf course and residences on the land, Grandote borrowed money from two banks in 1984: $4 million from Washington, which was secured by a first lien on the land, and $500,000 from Emmettsburg, which was secured by a second lien on the land and a first lien on the water rights. By 1987, Grandote needed more cash to complete the golf course and sought additional financing from Washington. As a condition of receiving additional credit ("the revolving loan"), Grandote gave Washington authority to arrange with Emmettsburg any modifications to the Emmettsburg loan that Washington believed necessary to provide adequate security for the new revolving loan. Pursuant to that authority Washington and Emmettsburg entered into the "Emmettsburg Agreement," which provided that "[a]ll collections received by either Washington or Emmettsburg on account of the Washington Loan or the Emmettsburg Loan shall be shared pro rata by the parties," with 13.878% going to Emmettsburg and the remaining 86.122% going to Washington. (I R. Doc. 179 Ex. 2 5.) The parties dispute whether Grandote was aware of this agreement, although it is undisputed that Grandote was not a party to it.
Life on the links was not all bliss, and Grandote suffered financial setbacks leading to litigation involving Grandote and Washington's successor in interest, Metropolitan, regarding payment of Grandote's loans. That litigation was settled by means of a "Settlement Stipulation," (Id. Ex. 4), which, after further negotiations, was modified by a "Payment and Release Agreement," (II R. Doc. 316 Ex. 1). Pursuant to those agreements, Grandote paid Metropolitan $1.95 million to resolve the litigation and pay off the Washington/Metropolitan loans.
In September 1993, RTC, which had become the receiver for Emmettsburg, initiated foreclosure proceedings on the Emmettsburg loan. Grandote attempted to pay off the outstanding balance on the loan. Now aware of the Emmettsburg Agreement, Grandote interpreted the "all collections" provision as applying to the settlement proceeds Grandote had paid to Metropolitan and reasoned that 13.878% of its $1.95 million payment to Metropolitan should have been applied to the Emmettsburg Loan. Grandote subtracted this amount (roughly $270,000) from the outstanding loan balance and tendered the remaining amount due on the loan (just under $58,000) to RTC. RTC refused this tender because Metropolitan had not given any of the settlement proceeds to RTC. Grandote viewed this as a breach of the Emmettsburg Agreement and sued RTC. Wahatoyas2 acquired RTC's interest in the Emmettsburg loan and was substituted for RTC in the action. Metropolitan (whose interests were acquired by First Bank, and then by U.S. Bank) was brought in as a third-party defendant on the theory that if Grandote prevailed, then RTC/Wahatoyas would seek contribution from Metropolitan/First Bank/U.S. Bank.
We need not detail the complex nature of the proceedings below except to note that they were initially filed in Colorado state court and then removed to federal court, and that the district court granted summary judgment against Grandote on all claims.
Before we reach the merits, an unusual procedural issue requires our attention. The notice of appeal naming Grandote L.L.C. as a party to this appeal was filed, pro se, by Dwight Harrison and was later amended to include Dwight's sons, Charles, John, and Paul. Harrison is not an attorney, and no attorney ever filed a notice of appeal on behalf of Grandote L.L.C. Wahatoyas and U.S. Bank argue that the notice of appeal was deficient as to Grandote L.L.C.
As a general matter, a corporation or other business entity can only appear in court through an attorney and not through a non-attorney corporate officer appearing pro se. See Flora Constr. Co. v. Fireman's Fund Ins. Co., 307 F.2d 413, 414 (10th Cir. 1962) (). In this case, however, only the notice of appeal was filed by a non-attorney, and Grandote now has counsel who have performed all of the substantive legal work.
The Ninth Circuit recently addressed the issue of "whether a corporation's notice of appeal, signed and filed by a corporate officer, is invalid because it was not signed and filed by counsel." Bigelow v. Brady (In re Bigelow), 179 F.3d 1164, 1165 (9th Cir. 1999). The court concluded that the notice was valid because Id. (citing Fed. R. Civ. P. 7); cf. Becker v. Montgomery, No. 00-6374, slip op. at 9-10 (...
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