                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   May 2, 2012
                             FOR THE TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                   Clerk of Court


    GLN COMPLIANCE GROUP, INC.,

                Plaintiff,

    v.                                                  No. 11-1246
                                            (D.C. No. 1:01-CV-02313-JLK-CBS)
    JONATHAN ROSS,                                       (D. Colo.)

                Defendant/Third-Party
                Plaintiff/Appellee
    v.

    GERALD NAEKEL,

                Third-Party Defendant/
                Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.



         This case has a lengthy and complicated procedural history. Our focus on

appeal is limited to the district court’s judgment against third-party defendant


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Gerald Naekel 1 for conducting himself outrageously toward and defaming

third-party plaintiff Jonathan Ross. Reviewing the district court’s legal

conclusions de novo and its factual findings for clear error, as is appropriate

following a bench trial, Chavez v. City of Albuquerque, 630 F.3d 1300, 1306

(10th Cir. 2011), we affirm.

                                           I

      Naekel’s company, GLN Compliance Group (“GLN”), contracted to

support United Airlines (“United”) in United’s effort to secure operating

certifications from the Federal Aviation Administration (“FAA”). Ross, an

independent contractor under Naekel’s supervision, served as the chief pilot on

the project. As the district court’s opinion sets out in detail, the relationship

between GLN and United soured during May and June 2001, and finally

terminated effective July 12, 2001.




1
       Naekel is the only recognized appellant on appeal. Although he purports to
represent himself and GLN Compliance Group, the rule in this circuit is that a
corporation may appear in federal court only through an attorney. See Tal v.
Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006). Naekel claims that GLN
transferred to him all rights, obligations, and responsibilities relating to this civil
action; however, courts have rejected such assignments as “no more than a
procedural subterfuge to avoid court rules prohibiting corporations from
appearing without legal representation.” 9A Fletcher Cyclopedia of the Law of
Corporations § 4463 (2012); see, e.g., Pridgen v. Andresen, 113 F.3d 391, 393
(2d Cir. 1997); Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385-86 (11th Cir.
1985). We therefore limit our review to rulings involving Naekel personally.

                                          -2-
      Ross and several other individuals accepted United’s offer to stay on the

project until the certification process was completed. Naekel acknowledges that

Ross was free to contract with United. However, he viewed Ross’ choice as a

betrayal. For the next eight years, Naekel “undertook a concerted, systematic

campaign of malicious misinformation, threats, and hyperbolic statements against

Ross . . . through emails, telephonic messages, and postings on GLN’s website.”

Among other things, Naekel accused Ross of theft. These actions form the basis

of Ross’ eventual cross-claim against Naekel for defamation and outrageous

conduct.

                                        II

                                        A

      Naekel does not deny making the statements attributed to him; instead he

claims that these statement were truthful. The district court, however, found that

Naekel’s accusations against Ross were false. Our review of such a factual

finding is limited and deferential:

             In an appeal from a bench trial . . . [i]t is not the role of an
      appellate court to retry the facts, because the court below has the
      exclusive function of appraising credibility, determining the weight
      to be given testimony, drawing inferences from facts established, and
      resolving conflicts in the evidence. That the record supports a view
      of the evidence that is permissible but contrary to the trial court’s
      findings is not sufficient to warrant upsetting the lower court’s
      findings. Instead, findings of fact are clearly erroneous when they
      are unsupported in the record, or if after our review of the record we
      have the definite and firm conviction that a mistake has been made.


                                        -3-
Holdeman v. Devine, 572 F.3d 1190, 1192 (10th Cir. 2009) (alterations omitted).

Upon consideration of the record evidence, we readily affirm the district court’s

finding that Naekel defamed Ross. We agree, moreover, that Naekel’s

indiscriminate dissemination of defamatory statements concerning a non-public

figure and matters outside the scope of public concern did not implicate any

privileges from liability. Naekel made additional statements relating to an

allegedly improper relationship between United and the FAA which may be of

public interest, but as the district court noted, those statements are not at issue in

this case.

                                           B

      We agree with the district court that Naekel’s conduct included not only

publicly defamatory statements about Ross, but also outrageous private

harassment of him. The district court’s assessment of the evidence was in

keeping with relevant precedent, see generally Lee v. Colo. Times, Inc., 222 P.3d

957, 963-65 (Colo. App. 2009), and we affirm its judgment making Naekel liable

to Ross for the intentional infliction of emotional distress.




                                          -4-
                                         III

      Naekel has not aided his case by submitting rambling briefs advancing

ill-founded criticisms of the district court judge, the legal system, and various

members of the bar. Notwithstanding the inadequacies of his briefing, we have

thoroughly reviewed the substantial evidentiary record and are confident the

district court properly resolved this case.

      The judgment of the district court is AFFIRMED. Naekel’s motion for

leave to proceed in forma pauperis on appeal is DENIED because his filings do

not “show a financial inability to pay the required filing fees.” DeBardeleben v.

Quinlin, 937 F.2d 502, 505 (10th Cir. 1991).


                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                         -5-
