Richison v. Ernest Group Inc., 09–6301.

• Decision Date: 14 March 2011
• Docket Number: No. 09–6301.,09–6301.
• Citation: 634 F.3d 1123
• Parties: David K. RICHISON, Plaintiff–Appellant,v.ERNEST GROUP, INC., d/b/a Paycom; Chad R. Richison; Craig Boelte; Shannon Richison (Rowe); James Jordan; William Kerber, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

634 F.3d 1123

David K. RICHISON, Plaintiff–Appellant,

v.ERNEST GROUP, INC., d/b/a Paycom; Chad R. Richison; Craig Boelte; Shannon Richison (Rowe); James Jordan; William Kerber, Defendants–Appellees.

No. 09–6301.

United States Court of Appeals, Tenth Circuit.

March 14, 2011.

Ross A. Plourde (Drew D. Webb and Daniel A. Loeffler with him on the briefs), McAfee & Taft, A Professional Corporation, Oklahoma City, OK, for Plaintiff–Appellant.John P. Falcone, Cheek & Falcone, PLLC, Oklahoma City, OK, for Defendants–Appellees.Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and GORSUCH, Circuit Judge.GORSUCH, Circuit Judge.

David Richison filed this lawsuit in 2009 alleging that his former co-workers tricked him into giving up his shares in the small software company where he used to work. While it's not clear whether Mr. Richison's shares were taken from him rightly or wrongly, it is clear they were taken from him long ago—in 2000. For this reason, the district court held all of Mr. Richison's claims for relief, brought nine years later, time-barred under the applicable limitations statutes. On appeal, Mr. Richison seeks reversal based on a new legal theory he never pressed before the district court. This he cannot do—at least not without showing plain error, a feat he doesn't even attempt. So it is that we must and do affirm.

In the 1990s, David Richison was a shareholder, director, and officer of Ernest Group, Inc. (“EGI”). But the relationship soured over the years and, in January 2000, it unraveled completely. That month, Mr. Richison signed a memo “resign[ing] from all positions in Ernest Group” and “forfeit[ing] ... ownership of all 125 shares.” R.O.A. at 193. From then on, EGI no longer treated Mr. Richison as an officer, director, or shareholder, and soon the company reissued Mr. Richison's shares to other employees. For his part, Mr. Richison ceased reporting any ownership interest in EGI on his tax returns, though for a brief time he continued to work at the company in the more limited capacity of a salaried employee. This last lingering link, however, was soon severed when, in 2001, Mr. Richison quit working for EGI entirely. Shortly thereafter, Mr. Richison contacted the company's accountant, asking that he not be listed as either an officer or shareholder on the corporation's tax returns.

For the next several years Mr. Richison and EGI had little contact, but two events stand out. In 2002, EGI's president came to Mr. Richison's house, asking Mr. Richison to (re-)confirm that he'd relinquished his shares back in 2000. Despite his earlier disavowals of share ownership, Mr. Richison now refused to cooperate. Then, in 2007, EGI's accountant tried again, allegedly telling Mr. Richison that the company was facing an IRS audit, and that there would be “deep trouble” unless Mr. Richison signed a document confirming the transfer of his shares in 2000. This time, Mr. Richison agreed to cooperate and signed the accountant's document.

Mr. Richison later discovered there was no IRS audit. Instead, he says, the accountant's 2007 phone call was a ploy to enrich EGI's officers and owners by facilitating the sale of a controlling interest in the company to a private equity firm. Arguing that he had been misled, Mr. Richison filed this diversity suit in 2009 alleging conversion, civil conspiracy, unjust enrichment, and breach of fiduciary duty—all in violation of Oklahoma law. In support of all these claims, Mr. Richison pursued a singular theory of the facts. He alleged that he retained full possession of his shares in EGI through 2007. And he alleged that it was only when the company's accountant approached him in 2007 that he signed a document relinquishing his interest in the shares.

In reply, the defendants moved for summary judgment. The undisputed facts, they submitted, showed that Mr. Richison gave up his EGI shares in 2000, not 2007. Because Mr. Richison's claims were based solely on the unlawful taking of his shares, the defendants submitted that all his claims accrued nine, not two, years earlier. And this, they contended, meant that all of Mr. Richison's claims were time-barred under the relevant Oklahoma statutes of limitations. The district court agreed with all this and granted summary judgment to the defendants. It is this result Mr. Richison now appeals.

We begin our analysis by looking to Oklahoma limitations law. Oklahoma follows the traditional rule that the statute of limitations generally begins to run when the litigant's claim accrues—that is, when he or she can first maintain the claim to a successful conclusion. See Consolidated Grain & Barge Co. v. Structural Systems, Inc., 212 P.3d 1168, 1171 (Okla.2009). In this case, each of Mr. Richison's tort claims expressly rests on an allegation that he had full possession of EGI shares until the defendants took them from him in 2007. See Am. Compl. ¶ 2; Resp. to Def.'s Mot. for Sum. J. at 1. Yet, as we've seen, the undisputed facts in this case show that the shares were taken from Mr. Richison back in 2000. It was then that Mr. Richison turned in his resignation “forfeit[ing] ownership of all 125 shares”; then that EGI removed him from the corporation's roster of shareholders; and then that the company began treating him as an employee, not an owner, in its tax filings. Indeed, the undisputed facts show that until filing this suit Mr. Richison hadn't asserted ownership, or exerted dominion and control, over the shares for almost a decade. It was in 2000, if ever, that a claim for the taking of his stock first could have been brought and so accrued for limitations purposes under Oklahoma law. Given that the longest statute of limitations possibly applicable to Mr. Richison's tort claims is five years, see 12 Okla. Stat. § 95, those claims are time-barred, one and all, just as the district court held.

Of course, Mr. Richison argues that the district court erred. In his view, there is a live factual dispute for the jury to resolve regarding whether his shares were taken in 2007 rather than 2000. A jury could find that his shares were taken from him in 2007, he says, because the document he signed in 2000 relinquishing his interest in them was not legally enforceable. All this, however, misses the point. Whether the document Mr. Richison signed in 2000 relinquishing his shares was an enforceable contract surely bears on the question whether the defendants were legally authorized to take the shares. But to determine when the clock on Mr. Richison's tort claims began to run, we don't ask when (or even whether) the defendants lawfully obtained the rights to plaintiff's property. Instead, what matters is when his tort claims first accrued—that is, when he first could've alleged that the defendants' conduct was unlawful. And whatever we may say about the propriety of the defendants' conduct, the undisputed facts show that any claim involving the wrongful taking of Mr. Richison's shares accrued in 2000, not in 2007.¹

Recognizing the trouble with this theory, Mr. Richison seeks to introduce another, back-up theory on appeal. Even if the defendants did take his shares in 2000 as they contend, Mr. Richison says that their actions in 2007 still tortiously deprived him of a claim to those shares. Surely, he says, giving up even a weak claim of interest in the shares—even clearing up a mere shadow of a doubt about their status—had some value to EGI in 2007, especially given that the company was allegedly seeking to polish its records in preparation for a plump stock sale. And, Mr. Richison contends, he had a right to exact a fee for quitting that claim, rather than being duped into giving it away for free.

This is a much more plausible theory, one far more consistent with the facts as they emerged at summary judgment. But the problem is Mr. Richison never pursued it in the district court. In his complaint, Mr. Richison alleged only that he retained full possession of the EGI shares in 2007 and that the defendants took those shares from him that year. At summary judgment, the defendants challenged Mr. Richison's factual account, arguing that his claims were time-barred because any such taking occurred in 2000, not 2007. On notice and in the face of this challenge, Mr. Richison chose to respond to the defendants' dispositive motion only by contesting the defendants' facts, steadfastly maintaining that he retained possession of the shares through 2007. At no point did he introduce the alternative legal theory that, even if he relinquished the shares in 2000, he was tortiously misled into confirming that fact in 2007. Thus we cannot agree with Mr. Richison's contention that his pleadings before the district court fairly presented this alternative legal theory for the court's consideration.

Where, as here, a plaintiff pursues a new legal theory for the first time on appeal, that new theory suffers the distinct disadvantage of starting at least a few paces back from the block. If the theory was intentionally relinquished or abandoned in the district court, we usually deem it waived and refuse to consider it. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006); see also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”); Lone Star Steel v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir.1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). By contrast, if the theory simply wasn't raised before the district court, we usually hold it forfeited. See Olano, 507 U.S. at 731, 113 S.Ct. 1770; Teague, 443 F.3d at 1314. “Waiver is accomplished by intent, but forfeiture comes about through neglect.” See United...