Rumsey Land Company v. Resource Land Holdings
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Opinion
FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2019
Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
In re: RUMSEY LAND COMPANY, LLC,
Debtor.
------------------------------
RUMSEY LAND COMPANY, LLC,
Plaintiff - Appellant, No. 18-1452 v.
RESOURCE LAND HOLDINGS, LLC; SORIN NATURAL RESOURCE PARTNERS, LLC; PUEBLO BANK AND TRUST COMPANY, LLC,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-02117-CMA-SKC) _________________________________
Ronald L. Wilcox, Wilcox Law Firm, LLC, Denver, Colorado for Plaintiff - Appellant.
David M. Rich, Minor & Brown, P.C., Denver, Colorado, and Sarah B. Wallace, Ballard Spahr LLP, Denver, Colorado, (Andrew J. Petrie, Ballard Spahr LLP, Denver, Colorado, with them on the brief) for Defendants - Appellees. _________________________________
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges. _________________________________ MATHESON, Circuit Judge. _________________________________
This appeal stems from a dispute involving land sold at a bankruptcy auction.
Rumsey Land Company, LLC (“Rumsey”) owned a property subject to a first deed of
trust held by Pueblo Bank & Trust Company, LLC (“PBT”). In 2010, Rumsey filed for
bankruptcy. Resource Land Holdings, LLC (“RLH”)1 offered to purchase the property,
but the bankruptcy court did not approve the sale. Shortly thereafter, PBT purchased the
property at a bankruptcy auction. PBT then transferred the land to RLH.
In 2015, Rumsey discovered that during the bankruptcy proceedings, RLH had
entered a loan purchase agreement to purchase PBT’s interest in the property. The
agreement eventually led to litigation in state court between RLH and PBT, which
culminated with a settlement agreement allowing RLH to purchase Rumsey’s property
from PBT for $4.75 million.
Rumsey believed the loan agreement, lawsuit, and settlement influenced the price
at its bankruptcy auction. It initiated this adversarial proceeding in bankruptcy court
against RLH and PBT (collectively “Defendants”), alleging (1) fraudulent concealment in
violation of state law and (2) collusive bidding activities in violation of 11 U.S.C.
§ 363(n). The case was transferred to federal district court, which granted summary
1 RLH is a registered agent of the third defendant in this case, Sorin Natural Resource Partners, LLC. For simplicity, the parties and the district court referred to Sorin and RLH collectively as “RLH.” We do the same. 2 judgment to Defendants on both claims. Exercising jurisdiction under 28 U.S.C § 1291
and § 1294(1), we affirm.
On the fraudulent concealment claim, we affirm summary judgment for RLH on
the alternative ground that RLH was not a party to a business transaction with Rumsey
and therefore had no duty to disclose information. We affirm summary judgment for
PBT because Rumsey forfeited its arguments about PBT’s duty to disclose and has not
argued plain error on appeal.
On the § 363(n) collusive bidding claim, we distinguish between Rumsey’s
alternative requests (1) to avoid the bankruptcy sale and (2) for damages. As to the
former, we affirm summary judgment for Defendants on the alternative ground that the
claim was time-barred by the one-year limitations period in Federal Rule of Civil
Procedure 60(c)(1). As to damages, we affirm summary judgment because Rumsey
failed to demonstrate a genuine dispute of material fact as to whether Defendants
intended to control the sale price at the bankruptcy auction.
I. BACKGROUND
A. Factual Background
Rumsey, a Colorado-based limited liability company, owned real property in
Evans, Elizabeth, and Nederland, Colorado. In January 2010, it filed for bankruptcy in
the United States Bankruptcy Court for the District of Colorado. At the time it filed for
bankruptcy, Rumsey’s holdings included a property known as the Rumsey Farm (“the
property” or “the land”), which was encumbered by a first deed of trust held by PBT.
3 RLH’s Initial Attempts to Acquire the Property
In March 2010, RLH attempted to purchase the property from Rumsey. It
discussed with Rumsey the possibility of buying the PBT loan but ultimately offered to
purchase the property for $7,484,397.75.
In April 2010, Rumsey filed a motion to approve the sale with the bankruptcy
court. Because three creditors objected, the court denied the motion and instructed
Rumsey to market the property more broadly.
RLH and PBT’s Loan Purchase Agreement and Lawsuit
Because RLH could not acquire the property from Rumsey directly, it decided to
pursue the possibility of purchasing the debt Rumsey owed to PBT. On December 1,
2010, RLH signed a written loan purchase agreement (“the loan purchase agreement” or
“the agreement”) to purchase the debt from PBT for $4.93 million. The agreement
contained a confidentiality provision prohibiting disclosure of the agreement or its terms.
The parties did not disclose the agreement to Rumsey or to the bankruptcy court.
On February 1, 2011, PBT refused to close on the loan purchase agreement. On
March 15, RLH sued PBT to enforce the agreement. As explained below, this lawsuit
eventually settled. The parties did not inform Rumsey about the lawsuit.
Rumsey’s Bankruptcy Auction
In early March 2011, the bankruptcy court approved the sale and notice
procedures to auction the property. On March 31, 2011, RLH submitted a $4 million
4 stalking horse bid.2 The same day, PBT submitted a credit stalking horse bid, which did
not offer new money but agreed to reduce Rumsey’s debt by $5 million. Rumsey
selected PBT’s bid as the stalking horse.
Shortly after Rumsey selected PBT as the stalking horse bidder, RLH’s counsel
e-mailed PBT regarding the pending lawsuit with RLH. He noted that “[t]he indications
that RLH has received from [Rumsey’s] marketing agent are that RLH was the second
place contender to be the stalking horse and no other offers were really in the ball park.”
App. at 949. He then added,
[PBT] and [RLH] may turn out to be the only two horses in this race. If that should come to pass, there may be some avenues for a consensual resolution of the disputes between our clients . . . . Naturally, collusive bidding is inappropriate and I’m not suggesting anything like that, but the bankruptcy court might be a good forum for a global resolution.
Id. PBT’s counsel responded that it did “not want to create the appearance or impression
of any sort of impropriety or collusive bidding to which . . . some other interested party
could object pursuant to Section 363(n) of the Bankruptcy Code.” Id. at 1019. It
therefore suggested that “until the auction and sale process is concluded, . . . it would be
2 “A ‘stalking horse’ contract is a first, favorable bid strategically solicited by the bankrupt company to prevent low-ball offers.” In re WestPoint Stevens, Inc., 600 F.3d 231, 239 n.3 (2d Cir. 2010). “A stalking horse bidder . . . makes an initial bid to purchase the assets of a debtor. . . .
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FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2019
Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
In re: RUMSEY LAND COMPANY, LLC,
Debtor.
------------------------------
RUMSEY LAND COMPANY, LLC,
Plaintiff - Appellant, No. 18-1452 v.
RESOURCE LAND HOLDINGS, LLC; SORIN NATURAL RESOURCE PARTNERS, LLC; PUEBLO BANK AND TRUST COMPANY, LLC,
Defendants - Appellees. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-02117-CMA-SKC) _________________________________
Ronald L. Wilcox, Wilcox Law Firm, LLC, Denver, Colorado for Plaintiff - Appellant.
David M. Rich, Minor & Brown, P.C., Denver, Colorado, and Sarah B. Wallace, Ballard Spahr LLP, Denver, Colorado, (Andrew J. Petrie, Ballard Spahr LLP, Denver, Colorado, with them on the brief) for Defendants - Appellees. _________________________________
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges. _________________________________ MATHESON, Circuit Judge. _________________________________
This appeal stems from a dispute involving land sold at a bankruptcy auction.
Rumsey Land Company, LLC (“Rumsey”) owned a property subject to a first deed of
trust held by Pueblo Bank & Trust Company, LLC (“PBT”). In 2010, Rumsey filed for
bankruptcy. Resource Land Holdings, LLC (“RLH”)1 offered to purchase the property,
but the bankruptcy court did not approve the sale. Shortly thereafter, PBT purchased the
property at a bankruptcy auction. PBT then transferred the land to RLH.
In 2015, Rumsey discovered that during the bankruptcy proceedings, RLH had
entered a loan purchase agreement to purchase PBT’s interest in the property. The
agreement eventually led to litigation in state court between RLH and PBT, which
culminated with a settlement agreement allowing RLH to purchase Rumsey’s property
from PBT for $4.75 million.
Rumsey believed the loan agreement, lawsuit, and settlement influenced the price
at its bankruptcy auction. It initiated this adversarial proceeding in bankruptcy court
against RLH and PBT (collectively “Defendants”), alleging (1) fraudulent concealment in
violation of state law and (2) collusive bidding activities in violation of 11 U.S.C.
§ 363(n). The case was transferred to federal district court, which granted summary
1 RLH is a registered agent of the third defendant in this case, Sorin Natural Resource Partners, LLC. For simplicity, the parties and the district court referred to Sorin and RLH collectively as “RLH.” We do the same. 2 judgment to Defendants on both claims. Exercising jurisdiction under 28 U.S.C § 1291
and § 1294(1), we affirm.
On the fraudulent concealment claim, we affirm summary judgment for RLH on
the alternative ground that RLH was not a party to a business transaction with Rumsey
and therefore had no duty to disclose information. We affirm summary judgment for
PBT because Rumsey forfeited its arguments about PBT’s duty to disclose and has not
argued plain error on appeal.
On the § 363(n) collusive bidding claim, we distinguish between Rumsey’s
alternative requests (1) to avoid the bankruptcy sale and (2) for damages. As to the
former, we affirm summary judgment for Defendants on the alternative ground that the
claim was time-barred by the one-year limitations period in Federal Rule of Civil
Procedure 60(c)(1). As to damages, we affirm summary judgment because Rumsey
failed to demonstrate a genuine dispute of material fact as to whether Defendants
intended to control the sale price at the bankruptcy auction.
I. BACKGROUND
A. Factual Background
Rumsey, a Colorado-based limited liability company, owned real property in
Evans, Elizabeth, and Nederland, Colorado. In January 2010, it filed for bankruptcy in
the United States Bankruptcy Court for the District of Colorado. At the time it filed for
bankruptcy, Rumsey’s holdings included a property known as the Rumsey Farm (“the
property” or “the land”), which was encumbered by a first deed of trust held by PBT.
3 RLH’s Initial Attempts to Acquire the Property
In March 2010, RLH attempted to purchase the property from Rumsey. It
discussed with Rumsey the possibility of buying the PBT loan but ultimately offered to
purchase the property for $7,484,397.75.
In April 2010, Rumsey filed a motion to approve the sale with the bankruptcy
court. Because three creditors objected, the court denied the motion and instructed
Rumsey to market the property more broadly.
RLH and PBT’s Loan Purchase Agreement and Lawsuit
Because RLH could not acquire the property from Rumsey directly, it decided to
pursue the possibility of purchasing the debt Rumsey owed to PBT. On December 1,
2010, RLH signed a written loan purchase agreement (“the loan purchase agreement” or
“the agreement”) to purchase the debt from PBT for $4.93 million. The agreement
contained a confidentiality provision prohibiting disclosure of the agreement or its terms.
The parties did not disclose the agreement to Rumsey or to the bankruptcy court.
On February 1, 2011, PBT refused to close on the loan purchase agreement. On
March 15, RLH sued PBT to enforce the agreement. As explained below, this lawsuit
eventually settled. The parties did not inform Rumsey about the lawsuit.
Rumsey’s Bankruptcy Auction
In early March 2011, the bankruptcy court approved the sale and notice
procedures to auction the property. On March 31, 2011, RLH submitted a $4 million
4 stalking horse bid.2 The same day, PBT submitted a credit stalking horse bid, which did
not offer new money but agreed to reduce Rumsey’s debt by $5 million. Rumsey
selected PBT’s bid as the stalking horse.
Shortly after Rumsey selected PBT as the stalking horse bidder, RLH’s counsel
e-mailed PBT regarding the pending lawsuit with RLH. He noted that “[t]he indications
that RLH has received from [Rumsey’s] marketing agent are that RLH was the second
place contender to be the stalking horse and no other offers were really in the ball park.”
App. at 949. He then added,
[PBT] and [RLH] may turn out to be the only two horses in this race. If that should come to pass, there may be some avenues for a consensual resolution of the disputes between our clients . . . . Naturally, collusive bidding is inappropriate and I’m not suggesting anything like that, but the bankruptcy court might be a good forum for a global resolution.
Id. PBT’s counsel responded that it did “not want to create the appearance or impression
of any sort of impropriety or collusive bidding to which . . . some other interested party
could object pursuant to Section 363(n) of the Bankruptcy Code.” Id. at 1019. It
therefore suggested that “until the auction and sale process is concluded, . . . it would be
2 “A ‘stalking horse’ contract is a first, favorable bid strategically solicited by the bankrupt company to prevent low-ball offers.” In re WestPoint Stevens, Inc., 600 F.3d 231, 239 n.3 (2d Cir. 2010). “A stalking horse bidder . . . makes an initial bid to purchase the assets of a debtor. . . . Stalking horse bidders often contract to receive a ‘break-up-fee’ compensating it for its bidding activities should a higher bid ultimately emerge and win an eventual asset auction.” Brown Media Corp. v. K & L Gates, LLP, 586 B.R. 508, 518 (E.D.N.Y. 2018).
5 unwise to engage in any dispute resolution or settlement discussions, of any nature,
which may involve the property to be sold at the auction or the underlying loan
documents held by [PBT].” Id.
On May 11, 2011, Rumsey auctioned the property. RLH did not participate in the
auction. Confluence Resource Holdings, LLC (“Confluence”) placed the winning bid.
On May 25, 2011, Rumsey submitted a Proposed Sale Order, which contained the
following representation:
The Debtor and each Successful Bidder and the Back-Up Bidder have fully disclosed all consideration to be given by each Successful Bidder and the Back-Up Bidder and all other agreements or arrangements entered into by each Successful Bidder and the Back-Up Bidder in connection with the sale of the Assets.
Id. at 963. RLH and PBT both received copies of the Proposed Sale Order, but neither
disclosed their loan purchase agreement or lawsuit.
The bankruptcy court entered the Proposed Order on June 17, authorizing
Confluence as the successful bidder and PBT as the back-up bidder. In August,
Confluence announced it would not proceed with closing. As a result, Rumsey accepted
PBT’s back-up bid.
Defendants’ Settlement Agreement
On September 13, 2011, RLH and PBT agreed to settle their lawsuit. As part of
their settlement, they agreed that after PBT acquired the property through the bankruptcy
sale, it would sell the property to RLH for $4.75 million. On September 20, the parties
entered a contract formalizing this agreement. 6 Sale to PBT and Later Transfer to RLH
On October 4, 2011, PBT moved the bankruptcy court to approve transfer of the
property from Rumsey to PBT. In the motion, PBT represented that the property was
“free and clear of all liens, encumbrances, claims, and interests.” Id. at 1021. PBT
provided a non-exhaustive list of liens and encumbrances but did not disclose the loan
purchase agreement or settlement with RLH. The bankruptcy court’s proposed
Supplemental Sale Order also did not mention the loan purchase agreement, and it
specified that “[t]he acquisition of the Assets is undertaken by [PBT] without collusion
and in good faith.” Id. at 1034. Both RLH and PBT received copies of the Order, which
the bankruptcy court entered on October 6, 2011, thereby transferring the property to
PBT. On October 13, PBT conveyed the property to RLH.
Discovery of Defendants’ Loan Purchase Agreement and Settlement
PBT and RLH never disclosed their loan purchase agreement, lawsuit, or
settlement to Rumsey, and Rumsey did not learn of the agreement until 2015. Rumsey
stated that “the [agreement] and subsequent efforts to enforce it had the effect of limiting
RLH’s bid to the amount agreed to by RLH and PBT,” and that it “would have objected
to credit bidding as a part of the sale process if it had known of the [agreement].” Id. at
964.
* * * *
The following table summarizes the events described above.
7 Events Relating to Sale of The Property Events Relating to Loan Purchase Agreement
01/15/2010 Rumsey files for bankruptcy. RLH offers to purchase the property 03/08/2010 for approximately $7.5 million. Bankruptcy court denies Rumsey’s 09/03/2010 motion to approve sale to RLH. RLH signs agreement to purchase 12/01/2010 debt from PBT for $4.93 million. PBT refuses to close on loan 02/01/2011 purchase agreement. Bankruptcy court approves sale and 03/02/2011 notice procedures for bankruptcy auction of the property. RLH sues PBT to enforce loan 03/15/2011 purchase agreement. RLH and PBT submit stalking 03/31/2011 horse bids. Rumsey selects PBT as the stalking horse. Rumsey auctions the property. 05/11/2011 Confluence places winning bid. Rumsey submits Proposed Sale Order specifying parties have 05/25/2011 disclosed agreements related to the property. Bankruptcy court enters Proposed Sale Order designating Confluence 06/17/2011 as winning bidder and PBT as back-up bidder. Confluence backs out of sale, 08/15/2011 leaving PBT as winning bidder. RLH and PBT agree to settle lawsuit; parties agree that PBT will 09/13/2011 transfer the property to RLH for $4.75 million. RLH and PBT enter contract 09/20/2011 formalizing settlement and sale from PBT to RLH. PBT files motion to transfer the property from Rumsey to PBT. It represents that property is free of 10/04/2011 liens and encumbrances and that acquisition of assets was undertaken without collusion. Bankruptcy court enters 10/06/2011 Supplemental Sale Order transferring the property to PBT. 10/13/2011 PBT transfers the property to RLH. 8 B. Procedural Background
Adversarial Proceeding Against RLH and PBT
In 2015, Rumsey initiated an adversarial proceeding against Defendants in
bankruptcy court. Its complaint alleged Defendants “entered into a secret collusive
agreement which had the effect of corrupting the bidding mechanism approved by the
Court.” Id. at 442. Specifically, Rumsey noted RLH initially offered to purchase
Rumsey Farm from it for approximately $7.5 million and later agreed to purchase PBT’s
loan for $4.9 million.3 Rumsey alleged that the loan purchase agreement between RLH
and PBT was “[a] ‘secret deal’ [that] allowed [RLH] to acquire the Rumsey Farm for a
savings of $2.5 million based on the price that they originally bid” and “deprived
[Rumsey’s] creditors of . . . $2.5 million.” Id. at 443.
Bankruptcy Court Proceedings
The bankruptcy court re-opened Rumsey’s bankruptcy case, and Rumsey filed an
amended complaint asserting six causes of action: (1) fraud on the court (against
Defendants), (2) violation of 11 U.S.C. § 363(n)’s prohibition of collusive bidding
activities (against Defendants), (3) breach of contract (against PBT), (4) negligence
(against Defendants), (5) fraudulent concealment (against Defendants), and (6) breach of
the duty of good faith and fair dealing (against PBT). On the § 363(n) claim, Rumsey
3 As noted above, RLH acquired the property from PBT for $4.75 million after the auction.
9 requested two alternative forms of relief: “that the Bankruptcy Court avoid the sale” or
“[i]n the alternative, . . . that PBT and RLH be required to pay damages in the amount by
which the value of the property sold exceeds the price at which such sale was
consummated . . . .” Id. at 519.
RLH and PBT filed separate motions to dismiss for failure to state a claim. The
bankruptcy court denied the motions, finding Rumsey had “alleged facts supporting a
conclusion” that PBT and RLH “reached a secret understanding or agreement regarding
the sale of [Rumsey’s] Assets, which agreement improperly lowered the ultimate sale
price.” Id. at 689. The court also found Rumsey “alleged sufficient facts to support a
conclusion that the agreement between RLH and [PBT] controlled the bidding price for
the sale of” the property. Id. at 691.
District Court Proceedings
RLH filed a Motion to Withdraw Reference4 to the bankruptcy court, and the
proceedings were transferred to the United States District Court for the District of
Colorado. RLH then moved for summary judgment on claims 1, 2, 4, and 5, arguing that
4 A Motion to Withdraw Reference allows a party to a bankruptcy proceeding to move the proceeding from bankruptcy court to federal district court. The Bankruptcy Law Manual explains: “Congress provided in § 157(a) of Title 28 that each district court could provide that any or all cases and any or all proceedings arising in, under, or related to the case be ‘referred’ to the bankruptcy judges in the district. . . . Section 157(d) then provides that the district court may withdraw the reference of any case or proceeding, in whole or in part, that has been previously referred. . . . The district court may, on a discretionary basis, withdraw the reference . . . upon ‘timely’ motion of a party.” 1 Bankruptcy Law Manual § 2:11 (5th ed. 2019).
10 each was time-barred and that Rumsey “[could not] meet [its] burden to produce
evidence supporting any of [its] claims.” Id. at 734. PBT moved to join RLH’s motion
for summary judgment, which the court granted. PBT also moved for dismissal of claims
3 and 6 for breach of contract and breach of duty of good faith and fair dealing, arguing
those claims were “predicated on Rumsey . . . being successful in proving [the other four
claims].” Id. at 952.
The district court first addressed RLH’s statute of limitations argument. The court
listed the relevant limitations periods for each of Rumsey’s claims, including the § 363(n)
claim. It stated that the § 363(n) claim was “governed by Federal Rule of Civil
Procedure 60(b)’s one-year limitations period.”5 Id. at 1481. It then suggested for all
claims, including the § 363(n) claim, “there [was] a genuine dispute of material fact as to
when Rumsey’s causes of action accrued.” Id. at 1483. It thus denied RLH’s motion “to
the extent that [it sought] to dismiss Rumsey’s claims on the grounds of statutes of
limitations.” Id.6
5 This one-year limitations period is described in Federal Rule of Civil Procedure 60(c)(1). As we explain below, the limitations period governs motions brought under Rule 60(b). Because of this, courts and litigants sometimes describe it as “Rule 60(b)’s one-year limitations period.” Here, we refer to the limitations period using its precise location in Rule 60(c)(1). 6 As we explain later, this analysis was flawed in two ways. First, the district court applied the Rule 60(c)(1) limitations period to Rumsey’s claim for damages. This was incorrect because Rule 60(c)(1) does not apply when a § 363(n) plaintiff seeks only damages. Second, the district court conducted an accrual analysis for the § 363(n) claim. This was error because Rule 60(c)(1)’s one-year limitations period is absolute and runs from the date of the entry of judgment.
11 The court then granted summary judgment on the merits as to all six of Rumsey’s
claims. The rulings on only two—the fraudulent concealment claim and the § 363(n)
claim—are challenged on appeal.
First, on the fraudulent concealment claim, the district court stated that “[t]here is
no general duty for all participants in market transactions to disclose material, nonpublic
information,” id. at 1486, and that a duty to disclose arises only if the parties have “a
fiduciary or other similar relation of trust and confidence,” id. at 1485. It granted
summary judgment for RLH because it found “Rumsey [had] not offered evidence of a
relationship of trust and confidence between it and . . . RLH.” Id. at 1486. The court also
granted summary judgment for PBT because “Rumsey focuse[d] exclusively on its
relationship with . . . RLH” and did “not proffer any argument about why . . . PBT in
particular owed it a duty to disclose.” Id. at 1488.
Second, on the § 363(n) claim, the court granted summary judgment for
Defendants because “Rumsey [did] not set forth specific facts from which a rational trier
of fact could infer that . . . RLH and PBT entered into the Loan Purchase Agreement with
intent that the Agreement control the price.” Id. at 1492.
II. DISCUSSION
This appeal presents two issues: (1) whether the district court erred in granting
summary judgment for Defendants on Rumsey’s fraudulent concealment claim, and (2)
whether the district court erred in granting summary judgment for Defendants on
Rumsey’s § 363(n) claim. As to both issues, we present the standard of review for
12 summary judgment and the Tenth Circuit’s law on forfeiture. We then turn to the
fraudulent concealment and § 363(n) collusive bidding claims.
A. Background Law
Standard of Review
“We review the grant or denial of summary judgment de novo, applying the same
standard of review as the district court.” S.E.C. v. Cochran, 214 F.3d 1261, 1264 (10th
Cir. 2000). “The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-51 (1986). “There is a genuine issue of material fact if a rational jury could find in
favor of the nonmoving party on the evidence presented.” Fassbender v. Correct Care
Sols., LLC, 890 F.3d 875, 882 (10th Cir. 2018) (quotations omitted).
“The movant bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact . . . .” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). The movant may carry this burden “by ‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s
case.” Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party to “set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
256.
13 When applying this standard, courts “view the evidence and draw all reasonable
inferences therefrom in the light most favorable to the party opposing summary
judgment.” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th
Cir. 2000).
Forfeiture “It is the general rule . . . that a federal appellate court does not consider an issue
not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). Accordingly, “if
the theory [a party urges on appeal] simply wasn’t raised before the district court, we
usually hold it forfeited.” Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th
Cir. 2014) (quotations omitted).
Our case law explains “what kind of specificity is required in the trial court in
order to preserve an issue for appeal.” Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721
(10th Cir. 1993). Although “[p]leadings and motions in the trial court will be given a
liberal reading,” Tele-Commc’ns, Inc. v. Comm’r., 104 F.3d 1229, 1233 (10th Cir. 1997),
we do not address “bald-faced new issue[s],” “theor[ies] that [were] discussed in a vague
and ambiguous way,” or “issues that were raised and then abandoned pre-trial,” Lyons,
994 F.2d at 722.
We also do not address “arguments raised in the District Court in a perfunctory
and underdeveloped manner.” Tele-Commc’ns, 104 F.3d at 1233 (quoting Kensington
Rock Island Ltd. P’ship v. Am. Eagle Historic Partners, 921 F.2d 122, 124-25 n.1 (7th
Cir. 1990) (alterations omitted)). “[V]ague, arguable references to a point in the district
14 court proceedings do not . . . preserve the issue on appeal.” Lyons, 994 F.2d at 721
(quotations omitted). “Fleeting references” to an argument are also insufficient.
Tele-Commc’ns, 104 F.3d at 1233-34 (issue forfeited where brief to the tax court
“contain[ed] only a single paragraph addressing the issue,” but “[o]n appeal, [that]
fleeting contention bec[ame] ten pages of argument, replete with examples and
citations”).
To urge reversal of an issue that was forfeited in district court, an appellant must
argue plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.
2011). If an appellant does not explain how its forfeited arguments survive the plain
error standard, it effectively waives those arguments on appeal. See McKissick v. Yuen,
618 F.3d 1177, 1189 (10th Cir. 2010) (noting that “even if [a party’s] arguments were
merely forfeited before the district court, [the] failure to explain . . . how they survive the
plain error standard waives the arguments in this court”); see also United States v. Qualls,
741 F. App’x 592, 596 (10th Cir. 2018) (unpublished) (holding that appellant waived a
forfeited argument “because his briefing made no mention of the plain error standard of
review”); United States v. Herrera-Zamora, 647 F. App’x 855, 858-59 (10th Cir. 2016)
(unpublished) (“[Appellant] makes his two remaining arguments for the first time on
appeal. Because he does so without arguing for plain-error review, these arguments are
15 effectively waived on appeal.”).7 “[F]ailure to argue for plain error and its application on
appeal[] surely marks the end of the road for an argument . . . not first presented to the
district court.” Richison, 634 F.3d at 1131.
B. Fraudulent Concealment Claim
We affirm the grant of summary judgment on Rumsey’s fraudulent concealment
claim. As to RLH, the district court granted summary judgment because it found Rumsey
and RLH were not in a relationship of trust and confidence as described in the
Restatement (Second) of Torts § 551(2)(a). We affirm on the alternative ground that
RLH was not a party to a business transaction with Rumsey and therefore had no duty to
disclose under § 551(2). As to PBT, the district court granted summary judgment
because it found that Rumsey “[did] not proffer any argument about why . . . PBT in
particular owed it a duty to disclose.” App. at 1488. We affirm because Rumsey has
forfeited its arguments about PBT and has not argued plain error on appeal.
Legal Background
Under Colorado law,8 a plaintiff claiming fraudulent concealment must prove five
elements:
7 Although not precedential, we find the reasoning of the unpublished opinions cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. 8 Rumsey’s fraudulent concealment claim is a state law tort claim. Accordingly, we apply Colorado law. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1109-12 (10th Cir. 2009) (applying Colorado law to a state law fraudulent concealment claim where jurisdiction was based on bankruptcy law); In re ms55, Inc., 420 B.R. 806, 820 n.6 16 (1) the concealment of a material existing fact that in equity and good conscience the defendant should have disclosed; (2) knowledge on the defendant’s part that such a fact was being concealed; (3) ignorance of that fact on the plaintiff’s part; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.
Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 420 P.3d 223, 234 (Colo.
2018).
To satisfy the first element, the “plaintiff must show that the defendant had a duty
to disclose material information.” Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965
P.2d 105, 111 (Colo. 1998). Colorado courts look to the Restatement (Second) of Torts
§ 551 to determine whether a party has a duty to disclose. See Level 3 Commc’ns, LLC v.
Liebert Corp., 535 F.3d 1146, 1163-64 (10th Cir. 2008); Mallon Oil, 965 P.2d at 111.
That section provides:
One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
Restatement (Second) of Torts § 551(1) (Am. Law. Inst. 1977). It then describes five
situations when a duty to disclose might arise:
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(Bankr. D. Colo. 2009) (discussing Tenth Circuit choice of law analysis for state law claims where jurisdiction is based on bankruptcy law).
17 (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.
Restatement (Second) of Torts § 551(2)(a)-(e). Each subsection of § 551(2) gives rise to
an independent duty to disclose. See, e.g., Alpine Bank v. Hubbell, 555 F.3d 1097,
1109-12 (10th Cir. 2009) (recognizing § 551(2)(a) as basis for a duty to disclose); Level 3
Commc’ns, 535 F.3d at 1163-64 (recognizing § 551(2)(b) as basis for a duty to disclose);
Mallon Oil, 965 P.2d at 111 (recognizing § 551(2)(e) as basis for a duty to disclose).
The disclosure duties described in § 551(2)(a)-(e) apply only to “part[ies] to a
business transaction.” Restatement (Second) of Torts § 551(2). Our case law is in
accord. In cases where we have considered whether § 551(2) triggered a duty to disclose,
18 the parties have always been engaged in business transactions. See, e.g., Level 3
Commc’ns, 535 F.3d at 1149, 1163-64 (considering whether there was a duty to disclose
between two parties who directly contracted for the sale and purchase of batteries)9;
Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1382 (Colo. App. 1990) (considering
whether there was a duty to disclose between employer and employee). And in at least
one unpublished case, a Colorado district court stated it was “aware of no[] [cases] that
[have] found a duty to disclose the terms of a contract to non-parties who may be affected
by the agreement.” Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II, LLC,
No. 14-CV-00134, 2014 WL 4400764, at *13 (D. Colo. Sept. 5, 2014) (unpublished).
Analysis
We analyze Rumsey’s fraudulent concealment claim as to each defendant, RLH
and PBT. We begin with the claim against RLH. We first consider whether Rumsey
forfeited its arguments against RLH by failing to present them to the district court. We
conclude Rumsey did not forfeit its § 551(2)(b) and (e) arguments about RLH because it
raised those arguments in its opposition to RLH’s motion for summary judgment. We
next consider whether the district court properly granted summary judgment for RLH on
9 Although contractual partners qualify as parties to a business transaction, a contractual relationship is not required under § 551(2)(b). See, e.g., Church Mut. Ins. Co. v. Coutu, No. 17-CV-00209, 2018 WL 1517022, at *4 (D. Colo. Mar. 28, 2018) (“Although [Black’s Law Dictionary] gives as an example [of a ‘party’] ‘a party to the contract,’ the Court does not consider that to be the universe of parties who can take part in a transaction [under § 551(2)(b)].”).
19 the fraudulent concealment claim. We affirm on the alternative ground that RLH was not
party to a business transaction and therefore had no duty to disclose under § 551(2).
As to Rumsey’s fraudulent concealment claim against PBT, we conclude that
Rumsey did not advance any specific arguments about PBT’s duty to disclose. Rumsey
thus forfeited its duty-to-disclose arguments about PBT in district court. Rumsey also
has not argued plain error on appeal. Its failure to do so effectively waives the fraudulent
concealment claim as to PBT in this court. We therefore affirm the district court without
addressing the merits of Rumsey’s fraudulent concealment claim against PBT.
a. Fraudulent concealment claim against RLH Forfeiture analysis
Defendants argue Rumsey forfeited its arguments about RLH’s duties under
Restatement § 551(2)(b) and (e). See Aplee. Br. at 23 (“Rumsey . . . cannot make new
arguments on appeal regarding RLH.”). We disagree.
In its opposition to RLH’s motion for summary judgment, Rumsey explicitly
argued RLH had a duty to disclose the loan purchase agreement. Rumsey quoted
§ 551(2)(b) and (e) in full. It also provided facts to support a duty of disclosure under
§ 551(2)(b) and (e).
For example, Rumsey:
Identified specific, “clearly ambiguous” statements that RLH made to Rumsey’s broker. App. at 968.
Explained how these statements could be interpreted in multiple ways and argued that the statements were “misleading in light of the fact that RLH and PBT had [already] entered into the [loan purchase agreement].” Id.
20 Argued RLH had “an affirmative duty” to correct misleading representations made in the proposed sale orders submitted on May 25, 2011 and October 4, 2011. Id. at 970.
In addition, Rumsey argued RLH should have been aware that Rumsey “would
reasonably expect disclosure of an agreement by RLH to purchase PBT’s loan” because
knowledge of the purchase agreement “was necessary to enable [Rumsey’s broker], in
conjunction with the debtor and objecting creditors, to determine how to proceed with an
auction.” Id. Rumsey thus alleged disclosure was required “in light of the relationship
between [the parties], the customs of the trade[,] and other objective circumstances.” Id.
Rumsey’s opposition to Defendant’s motion for summary judgment presented
more than “vague, arguable references” to § 551(2)(b) and (e). Lyons, 994 F.2d at 721.
Instead, it “actually articulated” § 551(2)(b) and (e) arguments, Tele-Commc’ns, 104 F.3d
at 1233, and “[gave] the basis for [those] argument[s]” to the district court, United States
v. Immordino, 534 F.2d 1378, 1381 (10th Cir. 1976). Accordingly, Rumsey did not
forfeit its § 551(2)(b) and (e) arguments about RLH.
b. Summary judgment for RLH The district court granted summary judgment for RLH because it found no
relationship of trust and confidence giving rise to a duty to disclose under § 551(2)(a).
As discussed above, however, § 551(2)’s disclosure duties apply only to parties that have
entered into business transactions. Here, RLH was not a party to a business transaction
with Rumsey. Although RLH made an initial offer to purchase Rumsey’s land and later
placed an unsuccessful stalking horse bid on the property, RLH did not contract to buy
21 anything from Rumsey. See, e.g., Level 3 Commc’ns, 535 F.3d at 1149, 1163-64
(recognizing duty to disclose between two parties who directly contracted for the sale and
purchase of batteries). It also never contracted to perform services for Rumsey, and it
was not part of an employment relationship with Rumsey. See, e.g., Wood v. Houghton
Mifflin Harcourt Publ’g Co., 589 F. Supp. 2d 1230 (D. Colo. 2008) (recognizing duty to
disclose arising from contract between photographer and publisher); Berger v. Sec. Pac.
Info. Sys., Inc., 795 P.2d 1380, 1382 (Colo. App. 1990) (recognizing duty to disclose
between employer and employee). Rumsey identifies no other interaction with RLH that
would constitute a business transaction.
We conclude RLH was not party to a business transaction with Rumsey. RLH
was thus not subject to the disclosure duties in § 551(2). We affirm the district court’s
summary judgment for RLH on this alternative ground.
c. Fraudulent concealment claim against PBT
Defendants argue Rumsey forfeited all arguments about PBT because “[i]n
responding to the motions for summary judgment, Rumsey . . . focused exclusively on
RLH’s duty . . . and it was only in its Opening Brief to this Court that Rumsey . . . for the
first time assert[ed] that [PBT] also had a duty to disclose.” Aplee. Br. at 29. We agree.
Although Rumsey preserved its arguments about RLH’s duty to disclose under
§ 551(2)(b) and (e), it forfeited any arguments about PBT’s disclosure duties. In its
opposition to RLH’s motion for summary judgment, Rumsey did not make any specific
allegations about PBT’s duty to disclose. Instead, it focused exclusively on RLH and
22 supported its arguments using facts specific to RLH. For example, Rumsey argued RLH
had a duty to correct misleading statements it made to Rumsey’s broker. But Rumsey did
not identify any situations where PBT similarly made false or misleading statements that
might have triggered a disclosure duty.
Because PBT joined RLH’s motion for summary judgment, Rumsey could have
advanced arguments in district court about both Defendants in its opposition brief. It did
not. It made no arguments about PBT’s duty to disclose. Any reference to PBT’s duty
was done only in “a vague and ambiguous way,” Lyons, 994 F.2d at 722, or “in a
perfunctory and underdeveloped manner,” Tele-Comm’cns, 104 F.3d at 1233. Such
references are not sufficient to preserve an issue for appellate review. Rumsey thus
forfeited its arguments about PBT. Rumsey’s failure to explain now how these forfeited
arguments “survive the plain error standard waives the arguments in this court.”
McKissick, 618 F.3d at 1189.
Because Rumsey forfeited its arguments about PBT and has not argued plain error
on appeal, we affirm the district court without addressing the merits of Rumsey’s
fraudulent concealment claim against PBT. See United States v. Branch, 658 F. App’x
375, 376 (10th Cir. 2016) (unpublished) (“[B]ecause [appellant] . . . fails to argue for
plain error review[,] . . . we decline to review his claims and affirm the district court.”).
C. Section 363(n) Collusive Bidding Claim
We also affirm the grant of summary judgment on Rumsey’s § 363(n) claim. We
first consider whether Rumsey’s § 363(n) claim was time-barred under Federal Rule of
23 Civil Procedure 60(c)(1). In its complaint, Rumsey requested two alternative forms of
relief: (1) avoidance of the bankruptcy sale, or (2) damages. We conclude its § 363(n)
claim was time-barred insofar as Rumsey sought to vacate the bankruptcy sale but was
not time-barred insofar as Rumsey sought damages. We then consider whether the
district court properly granted summary judgment for Defendants on the § 363(n)
damages claim. We affirm the district court because Rumsey did not set forth specific
facts to show that Defendants intended to control the sale price at the bankruptcy
auction.10
a. Section 363(n)
Title 11 U.S.C. § 363(n) provides that a “trustee may avoid a [bankruptcy] sale . . .
if the sale price was controlled by an agreement among potential bidders at such sale.”11
10 In district court, Rumsey presented its argument in opposition to summary judgment on its § 363(n) claim in a single, short paragraph. See App. at 974. Although its argument was sparse, we give Rumsey’s “[p]leadings and motions in the trial court . . . a liberal reading,” Tele-Commc’ns, Inc. 104 F.3d at 1233, and conclude that Rumsey sufficiently preserved its § 363(n) claim for appellate review. Defendants do not contend otherwise on appeal. 11 On its face, § 363(n) applies only to bankruptcy trustees. But 11 U.S.C. § 1107(a) clarifies that, with a few exceptions, “a debtor in possession shall have all the rights . . . and powers, and shall perform all the functions and duties . . . of a trustee.” Section 1107(a) does not include § 363(n) in its list of exceptions. Thus, a debtor in possession may act as a § 363(n) plaintiff and has the same rights, powers, and duties as a trustee for § 363(n) proceedings. See, e.g., In re Sunnyside Timber, LLC, 413 B.R. 352, 358-59 (Bankr. W.D. La. 2009) (entertaining § 363(n) action brought by Chapter 11 debtors, even though separate trustees had been appointed); In re N.Y. Trap Rock Corp., 42 F.3d 747 (2d Cir. 1994) (entertaining § 363(n) action brought by Chapter 11 debtors); 24 The section also allows a trustee to “recover from a party to [a bankruptcy sale] any
amount by which the value of the property sold exceeds the price at which such sale was
consummated.” Id. Courts have divided this claim into “three essential elements”: (1)
an agreement, (2) between potential bidders, (3) that controls the price at bidding. In re
Sunnyside Timber, LLC, 413 B.R. 352, 363 (Bankr. W.D. La. 2009); see also In re
Sanner, 218 B.R. 941, 944 (Bankr. D. Ariz. 1998). Only the third element is at issue
here.
“Congress explained that § 363(n) is ‘directed at collusive bidding on property,’”
which “indicates that Congress intended in Section 363(n) to prohibit only agreements
that are intended to control a sale price, and not all agreements having the unintended
consequence of influencing a sale price.” In re N.Y. Trap Rock Corp., 42 F.3d 747, 752
(2nd Cir. 1994). “The influence on the sale price must be an intended objective of the
agreement, and not merely an unintended consequence, for the agreement among
potential bidders to come within the prohibition of § 363(n).” Id.; see also In re
Sunnyside Timber, 413 B.R. at 363-64 (“Section 363(n) only forecloses those agreements
whose purpose is to control the sale price resulting from a section 363 sale. . . . The
determining factor is the intent or purpose of the agreement.”); Ramsay v. Vogel, 970
F.2d 471, 474 (8th Cir. 1992).
see also 2 William L. Norton III, Bankruptcy Law and Practice § 44:36 (3d ed. July 2019 Update) (“Code § 363(n) provides a mechanism by which trustees or debtors-in- possession can invalidate sales of assets tainted by collusion.”).
25 b. Limitations period for 363(n) claims
As discussed above, § 363(n) provides two remedies for collusive bidding: (1)
avoidance of the bankruptcy sale, or (2) damages. These remedies have different statutes
of limitations.
In general, courts construe § 363(n) avoidance claims as motions under Federal
Rule of Civil Procedure 60(b)(3), which permits courts to “relieve a party . . . from a final
judgment, order, or proceeding” for “fraud . . . , misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b)(3); see 2 Bankruptcy Desk Guide § 15:62 (2019)
(“An action to avoid a sale order under § 363 is essentially a request to relieve a party
from a final order under Rule 60(b)(3) . . . .”); see also In re Sunnyside Timber, 413 B.R.
at 360-61 (construing party’s § 363(n) claim as a Rule 60(b)(3) motion); In re Clinton
Street Food Corp., 254 B.R. 523, 529 (Bankr. S.D.N.Y. 2000) (same). Section 363(n)
avoidance claims are therefore subject to the one-year limitations period provided in
Federal Rule of Civil Procedure 60(c)(1). See Fed. R. Civ. P 60(c)(1) (stating that
motions under 60(b)(1)-(3) must be brought “no more than a year after the entry of the
judgment or order or the date of the proceeding”); In re Int’l Nutronics, Inc., 28 F.3d 965,
968-69 (9th Cir. 1994) (trustee’s § 363(n) claim to avoid sale barred by Rule 60(c)(1)); 2
Bankr. Desk Guide § 15:62 (“An action to avoid a sale order under § 363(n) . . . is . . .
subject to the one-year limitation of Rule 60(c).”).
Rule 60(c)(1)’s limitations period is “absolute.” Tool Box, Inc. v. Ogden City
Corp., 419 F.3d 1084, 1088 (10th Cir. 2005); see also In re Clinton Street Food, 254 B.R.
26 at 532 (one-year limitations period is “an absolute, outside limit”). It is not subject to
tolling, and “the concept of reasonable time cannot be used to extend the one-year limit.”
11 Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure § 2866 (3d
ed. 2019). Thus, “[a] motion under [60(b)(3)]”—and avoidance actions under § 363(n)—
“must be denied as untimely if made more than one year after judgment regardless of
whether the delay was reasonable.” Id. (emphasis added).12
Courts do not apply Rule 60(c)’s one-year limitations period when a § 363(n)
plaintiff seeks damages rather than avoidance or vacatur of a bankruptcy sale. See, e.g.,
In re Am. Paper Mills of Vt., Inc., 322 B.R. 84, 88-90 (Bankr. D. Vt. 2004) (declining to
apply Rule 60(c)’s one-year limitations period where plaintiff sought “damages under
§ 363(n), but [did] not seek to vacate the Sale Order”). Instead, courts apply the most
analogous state statute of limitations. See In re Taylorcraft Aviation Corp., 163 B.R. 734,
738 (Bankr. M.D. Pa. 1993) (applying state statute of limitations rather than Rule
60(c)(1) because the trustee sought damages but “[was] not seeking to avoid an Order
approving the sale”). This is because “the linkage to Rule 60 breaks down when a
12 See also Tool Box, 419 F.3d at 1088 (noting an “appeal does not toll or extend the one-year time limit of Rule 60(b)”); In re Clinton Street Food, 254 B.R. at 532 (noting “[no] authority suggesting that ignorance of the claims tolls the period of limitations under Fed. R. Civ. P. 60(b)(3)”); Martins v. Charles Hayden Goodwill Inn Sch., 178 F.R.D. 4, 6 (D. Ma. 1997) (applying the one-year limitations period to bar plaintiff’s 60(b)(2) claim even though plaintiff could not have discovered evidence in time to move for a new trial); Gambocz v. Ellmyer, 438 F.2d 915 (3d Cir. 1971) (applying one-year limitations period even though plaintiff alleged counsel had not notified him of the order dismissing his case).
27 plaintiff is asserting only a claim for damages under section 363(n).” In re Sunnyside
Timber, 413 B.R. at 362. As one court explained,
The section 363(n) cases that adopt the one-year time limit of Rule 60 are avoidance cases where the plaintiff seeks to modify or vacate a sale order. The rationale for applying the one-year time limit of Rule 60 in this context is that the avoidance remedy of section 363(n) is derived from the power to vacate an order under Rule 60, and thus must be subject to the limitations of that rule. Even if this analysis is correct, the linkage to Rule 60 breaks down when a plaintiff is asserting only a claim for damages under section 363(n). A section 363(n) damages claim does not seek to vacate or modify the court’s order approving the sale.
Id.
We first describe two errors the district court committed in analyzing Rumsey’s
§ 363(n) claim. We then consider whether the one-year limitations period in Rule
60(c)(1) barred the claim. We conclude that Rule 60(c)(1) governs the § 363(n) claim
insofar as Rumsey sought to avoid the bankruptcy sale. Rumsey’s request to avoid the
sale was thus time-barred. Rumsey’s alternative claim for damages, however, was
governed by Colorado state law and was not time-barred under Rule 60(c)(1).
Finally, we consider whether the district court properly granted summary
judgment for Defendants on the § 363(n) damages claim. We conclude that it did,
because Rumsey did not set forth specific facts in opposition to the summary judgment
motion to demonstrate that Defendants intended to control the sale price at the
bankruptcy auction.
28 a. District court errors
In granting summary judgment on Rumsey’s § 363(n) claim, the district court
committed two errors. First, the court applied Rule 60(c)(1)’s one-year limitations period
to Rumsey’s entire § 363(n) claim. But it did not acknowledge that Rumsey sought two
alternative forms of relief: (1) avoidance of the bankruptcy sale or (2) damages. Rule
60(c)(1) does not apply when a § 363(n) plaintiff seeks only damages, and because
Rumsey pled in the alternative, its § 363(n) damages request was, in effect, a request for
only damages. The district court thus should not have applied Rule 60(c)(1) to Rumsey’s
§ 363(n) damages claim. See In re Sunnyside Timber, 415 B.R. at 362; In re Am. Paper
Mills, 322 B.R. at 88-90; In re Taylorcraft Aviation, 163 B.R. at 738.
Second, the district court conducted an accrual analysis and determined there was
“a genuine dispute over a fact material to . . . the date the [§ 363(n)] cause[] of action
accrued.” App. at 1482. But as explained above, Rule 60(c)(1)’s limitations period is
“absolute,” Tool Box, 419 at 1088, and runs from the date of the entry of judgment.
Because the district court determined that Rule 60(c)(1) applied, it should not have
performed an accrual analysis.
b. Timeliness
The district court incorrectly applied Rule 60(c)(1)’s one-year limitations period to
Rumsey’s entire § 363(n) claim. But Rumsey requested two alternative forms of relief:
(1) avoidance of the bankruptcy sale or (2) damages. See App. at 494 (“Plaintiffs
requests [sic] that the sale be reversed and that the Rumsey Farm be returned to the
29 bankruptcy estate. In the alternative[,] the Plaintiffs request that PBT and RLH be found
liable for damages . . . .” (emphasis added)). We address the timeliness of each request
for relief in turn. See McGlohon v. United States, 121 F. App’x. 854, 855 (Fed. Cir.
2005) (unpublished) (conducting separate statute of limitations analysis for alternatively-
pled claims).
First, Rumsey sought to avoid the bankruptcy sale. This request was subject to
Rule 60(c)(1)’s one-year limitations period. See, e.g., In re Int’l Nutronics, 28 F.3d at
968-69 (trustee’s claim seeking to avoid sale time-barred under Rule 60(c)(1)). The
limitations period began to run at the “entry of the judgment or order or the date of the
proceeding.” Fed. R. Civ. P. 60(c)(1). Rumsey brought its § 363(n) claim approximately
four years after the bankruptcy court signed the Order of Sale. Its request to avoid the
bankruptcy sale was thus untimely under Rule 60(c)(1). Insofar as Rumsey’s § 363(n)
claim sought to avoid the bankruptcy sale, we affirm the district court on the alternative
ground that the claim was time-barred.
Second, Rumsey alternatively requested damages. As discussed above, courts do
not apply Rule 60(c)(1)’s limitations period when a party seeks only damages. See In re
Sunnyside Timber, 413 B.R. at 362; In re Am. Paper Mills, 322 B.R. at 88-90; In re
Taylorcraft Aviation, 163 B.R. at 738-39. To the extent Rumsey’s § 363(n) claim
requested damages, it was not subject to Rule 60(c)(1)’s one-year limitations period, but
was instead subject to the most closely analogous state statute of limitations. See In re
30 Am. Paper Mills, 322 B.R. at 90 (applying state law statute of limitations where § 363(n)
trustee sought only damages).
The district court did not say which statute of limitations should apply to
Rumsey’s § 363(n) claim, and it did not determine whether the claim was timely under
state law. Instead, the court granted summary judgment for Defendants because it found
no genuine dispute of material fact as to whether Defendants intended to control the sale
price at the bankruptcy auction. We likewise do not address the timeliness of Rumsey’s
§ 363(n) damages claim, because we choose to affirm on the same ground as the district
court.
c. Summary judgment
The district court said “Rumsey [did] not set forth specific facts from which a
rational trier of fact could infer that Defendants . . . entered into the Loan Purchase
Agreement with intent that the Agreement control the price.” App. at 1492. We agree
and affirm the summary judgment on Rumsey’s § 363(n) claim for damages on this
ground.
To avoid summary judgment, the nonmoving party must “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Rumsey did
not do so. In its opposition to Defendants’ motion for summary judgment, Rumsey
presented only a single paragraph to argue why summary judgment was not appropriate
on the § 363(n) claim. This paragraph read, in full:
Rumsey Land has met its burden of establishing the existence of an agreement between potential bidders that 31 controls the sale price. The very purpose of RLH’s lawsuit against PBT was to establish its contractual right to have the agreed upon amount of the [loan purchase agreement] control the sale price as between potential bidders RLH and PBT. As RLH alleged in its lawsuit [against PBT], absent the [agreement] and the lawsuit to enforce it, RLH might have had to make a cash bid that would have exceeded the amount agreed to in the [agreement]. Because of the [agreement] and the lawsuit to enforce it, RLH never had to exceed the amount agreed to in the [agreement].
App. at 974 (citations omitted).
Aside from these general and conclusory allegations, Rumsey offered no specific
details to support its position. For example, the record contains communications between
RLH and PBT acknowledging that “collusive bidding is inappropriate,” id. at 949, and
expressing the parties’ mutual desire to avoid “the appearance or impression of any sort
of impropriety,” id. at 1019. Rumsey provided no evidence to contradict these
communications or to show that, despite their caution, Defendants in fact intended to
control the sale price. Rumsey also did not provide evidence showing “[t]he influence on
the sale price [was] an intended objective of the agreement, and not merely an unintended
consequence.” In re N.Y. Trap Rock, 42 F.3d at 752 (emphasis added). Nor did it show
that the “purpose of RLH’s lawsuit . . . was to establish its contractual right to . . . control
the sale price as between potential bidders RLH and PBT.” Id. Instead, Rumsey offered
only brief, vague, and general allegations, unsupported by facts or evidence. It thus
32 failed to carry its burden of “set[ting] forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 256.13
In district court, Rumsey did not identify evidence in the record to support its
position. Although the district court “may ‘go beyond the referenced portions’ of the
plaintiffs’ evidentiary materials, ‘[it] is not required to do so.’” Bird v. Regents of N.M.
State Univ., 619 F. App’x 733, 740 (10th Cir. 2015) (unpublished) (quoting Adler, 144
F.3d at 672). On appeal, we also “ordinarily limit[] our review to the materials
adequately brought to the attention of the district court by the parties.” Adler, 144 F.3d at
671. “[W]e, like the district courts, have a limited and neutral role in the adversarial
process, and are wary of becoming advocates who comb the record of previously
available evidence and make a party’s case for it.” Id. at 672; see also SIL-FLO, Inc. v.
SFHC, Inc., 917 F.2d 1507, 1513 (10th Cir. 1990) (a court of appeals “need not sift
through the record to find . . . evidence” in the absence of citations in a party’s brief
(quotations omitted)). If there was evidence to support Rumsey’s § 363(n) claim, it was
Rumsey’s responsibility—not the court’s—to identify it.
13 We conduct our summary judgment “review from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). We note, however, that even on appeal, Rumsey does not provide specific facts or evidence to support its § 363(n) claim. In its opening brief, Rumsey discusses its § 363(n) allegations in three brief paragraphs, which contain broad and conclusory allegations about “RLH’s and [PBT’s] specific intent to control the price.” Aplt. Br. at 22. But Rumsey provides no specific facts or evidence to show that RLH and PBT in fact acted with this intent.
33 Because Rumsey did not provide any facts or evidence to demonstrate an issue of
material fact on its § 363(n) claim, it failed to “set forth specific facts showing that there
is a genuine issue for trial.” Anderson, 477 U.S. at 256. The district court did not err in
granting summary judgment for Defendants on Rumsey’s § 363(n) claim for damages.
We affirm.
III. CONCLUSION
We affirm the district court’s grant of summary judgment for Defendants.
Related
Cite This Page — Counsel Stack
944 F.3d 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rumsey-land-company-v-resource-land-holdings-ca10-2019.