                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 10 2003
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    NATIONAL BUSINESS BROKERS,
    LTD., a Colorado limited partnership,

                Plaintiff-Appellee/
                Cross-Appellant,

    v.                                           Nos. 02-1175 & 02-1181
                                             (D.C. No. 00-WY-419-CB (OES))
    JIM WILLIAMSON, an individual;                      (D. Colo.)
    JIM WILLIAMSON PRODUCTIONS,
    INC., a Louisiana corporation,

                Defendants,

          and

    KEVIN BRILEY, an individual;
    MARGORIE BRILEY, an individual,

                Defendants-Appellants/
                Cross-Appellees.


                              ORDER AND JUDGMENT        *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

      As the parties are familiar with the facts of this appeal, we will refer to

them only as necessary to explain our decision. In summary, plaintiff, a Colorado

limited partnership, is a business broker who brings buyers and sellers of

businesses together. In 1998, plaintiff entered into a listing contract with a third

party, Jim Williamson, to sell a business owned by Williamson in return for an

eight per cent commission. After the 1998 contract expired, plaintiff and

Williamson did not execute a new written contract.

      Kevin and Margorie Briley eventually bought the Williamson business after

signing a nondisclosure agreement with plaintiff. The nondisclosure agreement

provided that plaintiff would introduce the Brileys to Williamson and conduct all

negotiations for the sale of the business. The Brileys agreed to indemnify both

the plaintiff and Williamson for any loss or damage suffered by either or both as a

result of any breach by the Brileys.

      In December 1999, Williamson sold his business to the Brileys. Plaintiff

was not paid a commission and eventually sued Williamson, a resident of

Louisiana, his company, Jim Williamson Productions, Inc., a Louisiana


                                          -2-
corporation, and the Brileys in the federal district court in Colorado.

Williamson’s motion to dismiss for lack of personal jurisdiction made on behalf

of himself and his corporation was granted by the district court and affirmed by

this court. After the subsequent bench trial, the district court ruled that the

Brileys had breached the nondisclosure agreement with plaintiff, but that plaintiff

had failed to prove its tortious interference claim. The trial court entered

judgment in favor of plaintiff in the amount of $96,000. The Brileys appeal that

judgment, and plaintiff cross-appeals, arguing that the district court erred in

failing to award prejudgment interest and also erred in denying the claim for

tortious interference.

       In their opening brief, the Brileys argue solely that Louisiana law should

have controlled this case and that, under Louisiana law, there was no valid

contract between plaintiff and Williamson, thus negating any basis for an award

of damages against the Brileys. We have thoroughly reviewed the record in this

case and find no evidence that this choice of law argument was ever presented to

the district court. Nor have the Brileys complied with 10th Cir. R. 28.2(C)(2)

requiring parties to an appeal to cite to the precise reference in the record where

an issue was raised and ruled upon. As a general matter, this court will not

consider an issue that was not raised in the district court.   Walker v. Mather (In re

Walker) , 959 F.2d 894, 896 (10th Cir. 1992).



                                              -3-
       To avoid this result, the Brileys argue in their reply brief that establishing

the existence of a contract between plaintiff and Williamson was one of the

elements of plaintiff’s breach of contract claim and was fully litigated by the

parties. This, however, is a far cry from raising a choice of law issue before the

district court. This court will not consider a new theory on appeal, even one “that

falls under the same general category as an argument presented at trial or . . . a

theory that was discussed in a vague and ambiguous way” at trial.         Bancamerica

Commercial Corp. v. Mosher Steel of Kan., Inc.       , 100 F.3d 792, 798-99 (10th Cir.)

(quotation omitted), amended on other grounds in        103 F.3d 80 (10th Cir. 1996).

“[T]o preserve the integrity of the appellate structure, we should not be

considered a second shot forum . . . where secondary, back-up theories may be

mounted for the first time.”   Tele-Communications, Inc. v. Comm’r        , 104 F.3d

1229, 1233 (10th Cir. 1997) (quotation omitted). Because the choice of law

argument is the Brileys’ only basis for reversal and is raised too late, we affirm

the judgment of the district court on the breach of contract claim.   1



       In its cross-appeal, plaintiff points out that the district court failed to

address the claim for prejudgment interest, a matter reserved for the discretion of

the trial court, see Atlantic Richfield Co. v. Farm Credit Bank of Wichita,




1
      As plaintiff acknowledges, this disposition makes it unnecessary for us to
address plaintiff’s tortious interference argument.

                                            -4-
226 F.3d 1138, 1156 (10th Cir. 2000).   2
                                            Because this issue was raised but not

ruled on by the district court, this case will be remanded to that court to first

address the issue.   See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R. Eric

Peterson Constr. Co.) , 951 F.2d 1175, 1182 (10th Cir. 1991).

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED in part, and this case is remanded for further proceedings

in accordance with this order and judgment.



                                                       Entered for the Court



                                                       Stephanie K. Seymour
                                                       Circuit Judge




2
       The Brileys argue, without support, that plaintiff has waived this claim
because it neglected to ask for prejudgment interest in a post-trial motion. The
fact that plaintiff’s claim for prejudgment interest was included in the complaint,
the pre-trial order, and in plaintiff’s opening and closing statements is sufficient
to avoid waiver.

                                            -5-
