Blixseth v. Cushman & Wakefield of Colorado, Inc.

Case Type:
Case Status:
No. 15-1375 (10th Circuit, Feb 03,2017) Not Published
The Tenth Circuit affirmed the district court's (D. Colo.) dismissal under Rule 12 and Rule 56 of 27 claims against three defendants (the same nine claims against each) for alleged torts related to a $375 million loan to a debtor that filed bankruptcy shortly thereafter. The Tenth Circuit ruled that (a) appellant properly appealed Rule 12 dismissals in addition to Rule 56 dismissals despite only attaching Rule 56 dismissal to notice of appeal; (b) plaintiff--debtor's principal--lacked standing to assert claims derivative of debtor's claims; and (c) debtor's confirmed plan precluded claims.
Procedural context:
Remote principal of debtor asserted multiple claims against multiple entities in district court suit related to bankruptcy proceeding, and defendants moved to dismiss and for summary judgment. Bankruptcy court dismissed all claims, and principal appealed to district court. District court affirmed. Principal appealed to 10th Circuit.
Blixseth was principal of entity that was majority owner of Yellowstone Mountain Club, LLC (Yellowstone), an entity that filed bankruptcy. In 2004, appraiser for Cushman Wakefield (Cushman) appraised club for $1.165 billion. In 2005, based on appraisal, Credit Suisse lent $375 million to Yellowstone. Blixseth took $209 million of the loan for himself, allegedly with Credit Suisse's consent. Yellowstone filed for bankruptcy shortly thereafter. Blixseth sued appraiser, Cushman, and Credit Suisse, asserting the same nine claims against each, including RICO violations, fraud, and other torts. The defendants moved to dismiss all claims. Blixseth abandoned certain claims against specific defendants. The district court dismissed all remaining claims against Cushman and the appraiser, and all claims against Credit Suisse, except for tortious interference with contractual relations, and allowed Blixseth to amend his breach of implied covenant of good faith and fair dealing. After repleading, Credit Suisse filed and won a motion for summary judgment on the remaining two claims. Blixseth appealed the Rule 12 and Rule 56 dismissal of all his claims to the 10th Circuit.
Phillips & Seymour (Judge Gorsuch of the panel did not participate in the judgment)

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