Blixseth v. Cushman & Wakefield of Colorado, Inc.
678 F. App'x 671
| 10th Cir. | 2017Background
- Timothy Blixseth founded Yellowstone Mountain Club (YMC); Credit Suisse lent $375 million in 2005 based on a $1.165 billion appraisal, and Blixseth withdrew $209 million; YMC later filed bankruptcy.
- Blixseth sued Dean Paauw, Cushman & Wakefield, and multiple Credit Suisse entities asserting nine claims (RICO, fraud, breach of fiduciary duty, negligence/negligent misrepresentation, tortious interference, breach of covenant of good faith, breach of contract, equitable indemnity, conspiracy).
- Defendants moved to dismiss; Blixseth abandoned several claims; district court dismissed all claims against Cushman/Paauw and most against Credit Suisse, allowing leave to amend one implied covenant claim; amended complaint reasserted that claim.
- Two claims against Credit Suisse proceeded to summary judgment: tortious interference and breach of implied covenant; district court granted summary judgment for Credit Suisse; Blixseth appealed.
- On appeal the Tenth Circuit (two-judge quorum) addressed appellate jurisdiction, prudential standing (whether Blixseth’s injuries were derivative of YMC’s), preclusion/exculpation in the bankruptcy plan, collateral estoppel regarding control of the Liquidating Trust, and denial of additional discovery under Rule 56(d).
- The Tenth Circuit affirmed the district court in full: appeal jurisdiction proper; standing and exculpation rulings upheld; summary judgment affirmed (including collateral estoppel that Credit Suisse did not control the Liquidating Trust); denial of additional discovery not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction over dismissal orders | Notice designated final judgment showing intent to appeal all merged orders | Attachment mistake waived appeal of dismissal orders | Court: designation of final judgment controls; jurisdiction exists to review dismissals |
| Prudential standing for RICO, fraud, negligence, negligent misrepresentation | Blixseth claimed direct, personal injuries distinct from YMC | Defendants: injuries were derivative of YMC; no direct personal interest | Court: injuries derivative; Blixseth lacked prudential standing; dismissals affirmed |
| Enforceability of bankruptcy exculpation and control of Liquidating Trust (summary judgment on tortious interference and implied covenant) | Blixseth: Credit Suisse controlled Liquidating Trust and caused damages (interfered with divorce releases/targeted him to fund reorganization) | Credit Suisse: Bankruptcy plan/exculpation covers relevant claims; Bankruptcy Court already found Credit Suisse didn’t control the Trust | Court: collateral estoppel bars relitigation of control; Blixseth failed to show causation/damages; summary judgment affirmed |
| Denial of additional discovery under Rule 56(d) | Additional discovery would show Credit Suisse’s control/causation and was necessary before summary judgment | Defendants: requested discovery irrelevant or available in related proceedings; not material to preclusion issues | Court: district court did not abuse discretion in denying Rule 56(d) relief; discovery refusal affirmed |
Key Cases Cited
- McBride v. CITGO Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002) (notice of appeal that names final judgment supports review of earlier merged orders)
- Niemi v. Lasshofer, 728 F.3d 1252 (10th Cir. 2013) (shareholder standing analysis—distinguishing derivative vs. direct claims)
- Moss v. Kopp, 559 F.3d 1155 (10th Cir. 2009) (collateral estoppel precludes relitigation of issues decided in earlier proceedings)
- Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010) (exception permitting shareholders with direct, personal interest to sue despite corporate rights being implicated)
- Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012) (standard of review for Rule 12(b)(6) dismissal)