                                                               F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                July 11, 2006
                            FO R TH E TENTH CIRCUIT         Elisabeth A. Shumaker
                                                                Clerk of Court



K ITE FA M ILY IN V ESTM EN T
COM PANY ; JAM ES B. KITE, JR.
R EV O CA BLE TR UST, JEA N
W H ITENEC K; WILB UR G.
W HITENECK FAM ILY TRUST;                     Nos. 05-6364, 06-6007
VIRGINIA C. W HITENECK                       (D.C. No. 03-CV-1469-W )
R EV O CA BLE TR UST; WILB UR G.                   (W .D. Okla.)
W HITENECK IRREV OC AB LE
TRUST; ELEANOR ANN E ISAACS
IRREV OC AB LE TRUST; W OLF
CREEK ENTERPRISES IN C.;
HARPER COUNTY FARM S IN C.;
ROXY ANN M ERKLIN
REVOCABLE TRUST; THOM AS R.
M ERKLIN R EVO CA BLE TRU ST;
and DA VID W RIGH T,

            Plaintiffs-Appellants,


  v.

K EN TO N LEV IN G S; K EN TO N &
B RA N D I, IN C.; LEV IN G S
LEARNING LLC,

            Defendants,

-------------------------

H O U STON CA SU A LTY CO M PANY,

            Garnishee-Appellee.
                           OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.


      Appellants appeal from the district court’s grant of summary judgment in

favor of appellee Houston Casualty Company and from the district court’s aw ard

of attorney fees and costs to Houston Casualty. Appellants had a consent

judgment entered in their favor against the defendants Kenton Levings, Kenton &

Brandi, Inc. (K& B) and Levings Learning LLC (the LLC) on a claim for negligent

misrepresentation. Houston Casualty had issued an insurance policy to the LLC

and appellants sought to recover their judgment from Houston Casualty under the

policy issued to the LLC, but Houston Casualty denied coverage. Appellants then

initiated a garnishment proceeding against H ouston Casualty.

      In the garnishment proceeding, Houston Casualty filed a counterclaim

seeking a declaration that it was not obligated to provide coverage under the

policy. It then filed a motion for summary judgment arguing that neither




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.

                                        -2-
M r. Levings in his capacity as an officer or manager of the LLC nor the LLC

itself committed a “W rongful Act” as that term is described in the policy.

Coverage under the policy is only available for a “Wrongful Act” committed by

an Insured Person in his capacity as an officer or manager of the Insured

Organization. There was no policy issued to K& B or to M r. Levings in his

individual capacity. The district court agreed with Houston Casualty’s

interpretation of the scope of its coverage under the policy and granted summary

judgment in its favor.

      Appellants argue that the district court misapprehended their negligent

misrepresentation claim because M r. Levings did make a misrepresentation and

omission in his capacity as an officer and manager of the LLC. W e review de

novo the district court’s grant of summary judgment, viewing the record in the

light most favorable to the party opposing summary judgment. See Seamons v.

Snow, 206 F.3d 1021, 1026 (10th Cir. 2000).

      Having considered the briefs, the record and the applicable law, we agree

with the district court’s determination that “neither an Insured Organization nor

an Insured Person in his capacity as a director, officer, member or manager of an

Insured Organization committed the W rongful Act for w hich coverage is sought,”

Aplt. App., Vol. II, Tab 17 at 673, and therefore Houston Casualty was entitled to

summary judgment in its favor. Accordingly, we AFFIRM the judgment for




                                         -3-
substantially the same reasons stated by the district court in its Order filed

September 26, 2005.

      In the appeal challenging the attorney fees award, appellants argue that if

this court reverses the district court’s summary judgment determination then

Houston Casualty will no longer be a prevailing party under Okla. Stat. tit. 12,

§ 1190(b)(1) and will not be entitled to an award of its attorney fees and costs.

The attorney fees appeal is therefore completely dependent on the outcome of the

summary judgment determination. Because w e affirm the district court’s

summary judgment determination, the attorney fees award is also affirmed.

Accordingly, we AFFIRM the district court’s judgment, filed December 9, 2005,

awarding attorney fees and costs to Houston Casualty.

                                                      Entered for the Court



                                                      M ichael W . M cConnell
                                                      Circuit Judge




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