                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 18 2000
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    TAMAR GREENBERG, individually
    and as personal representative of the
    Estate of Lawrence M. Greenberg,
    deceased,
                                                 Nos. 98-1349 & 98-1366
                 Plaintiff-Appellant-             (D.C. No. 95-B-663)
                 Cross-Appellee,                       (D. Colo.)

    v.

    COMERICA BANK, as personal
    representative of the Estate of Julius
    Greenberg, M.D.;

                 Defendant-Appellee-
                 Cross-Appellant,

    and

    ALLERGY GROUP, P.C.,

                 Defendant.


                              ORDER AND JUDGMENT        *




Before BRORBY , ANDERSON , and MURPHY , 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      This order and judgment is not binding precedent, except under the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 records, 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). These cases are

therefore ordered submitted without oral argument.

      Tamar Greenberg appeals from the       district court ’s grant of summary

judgment to defendant Dr. Julius Greenberg on claims of medical negligence,

breach of fiduciary duty, and loss of consortium. Dr. Greenberg filed a

conditional cross-appeal challenging the    district court’s denial of his motion to

dismiss for lack of venue.   1




Appeal No. 98-1349

Introduction

      Lawrence Greenberg and his wife, Tamar Greenberg, originally brought

this action against Lawrence’s adoptive father, Dr. Julius Greenberg.     2
                                                                              Their

complaint alleged that, as a result of Dr. Greenberg’s negligent prescription and

dispensation of controlled substances to Lawrence over a period of almost thirty

1
       Defendant Allergy Group, P.C. was dismissed by the       district court on
summary judgment. Appellant does not challenge the       district court ’s ruling in
this respect.
2
      Both Lawrence Greenberg and Dr. Julius Greenberg died during the
pendency of this appeal. Personal representatives Tamar Greenberg and Comerica
Bank have been substituted for Lawrence Greenberg and Dr. Greenberg,
respectively.

                                           -2-
years, beginning when he was still a minor, Lawrence Greenberg became addicted

to benzodiazepines. The complaint set out claims for medical negligence,

outrageous conduct, breach of fiduciary duty, and loss of consortium, and sought

both compensatory and punitive damages.

      Dr. Greenberg moved for summary judgment based on two releases signed

by Lawrence on March 1, 1995, purporting to discharge Dr. Greenberg from any

liability for medical malpractice, negligence, and “any reason or any matter, cause

or thing” occurring before the date of the releases. Appellant’s App. at 122-23.

Lawrence signed these releases in exchange for the stated consideration of

$7,500; appellant alleges there was an unstated additional consideration of 100

Xanax pills.

      The district court initially ruled that the releases were contrary to public

policy and were also adhesion contracts and therefore unenforceable.       See id. at

56. 3 Upon reconsideration, however, the court determined that the releases were

valid and enforceable and precluded all of appellant’s remaining claims.       See id.

at 71, 73. The district court granted summary judgment to Dr. Greenberg and

dismissed the action.   See id. at 74.




3
      The court granted summary judgment to Dr. Greenberg on the claims of
outrageous conduct and punitive damages, rulings appellant does not challenge on
appeal.

                                           -3-
       Our jurisdiction over this appeal arises from 28 U.S.C. § 1291. “We review

the district court ’s grant of summary judgment de novo, applying the same legal

standard used by the district court .” Simms v. Oklahoma ex rel. Dep’t of Mental

Health & Substance Abuse Servs.     , 165 F.3d 1321, 1326 (10th Cir.),   cert. denied,

120 S. Ct. 53 (1999). The parties agree, as did the    district court , that Michigan

law applies to this diversity-based action. On appeal, appellant contends that

1) the releases are unenforceable as contracts of adhesion which were signed

under duress and because of illegality of consideration and purpose, 2) the

releases were a breach of Dr. Greenberg’s fiduciary duty, and 3) the loss of

consortium claim was not extinguished by the releases. Appellee asserts the

following defenses: 1) appellant’s claims are barred by Michigan’s wrongful

conduct rule, 2) the releases are valid and enforceable, 3) appellant cannot

challenge the releases because the consideration for them was not returned, 4) the

releases are not contracts of adhesion or illegal, and 5) appellant’s loss of

consortium claim is derivative of the substantive claims and therefore barred by

the releases.

Claims of Medical Negligence and Breach of Fiduciary Duty

       We agree with appellee’s third argument. Michigan law is clear that,

absent return of the consideration, a litigant may not challenge the validity of the

signed releases.   See Stefanac v. Cranbrook Educ. Community       , 458 N.W.2d 56, 60


                                            -4-
(Mich. 1990). It is undisputed that Lawrence did not return the consideration

prior to commencing suit.     Cf. Davis v. Bronson Methodist Hosp.     , 406 N.W.2d

201, 202 (Mich. Ct. App. 1986). Appellant contends that this defense is

unavailable because the illegality of the releases leaves the court without

authority to enforce them despite failure to return the consideration. Appellant

also asserts that Lawrence’s addiction and Dr. Greenberg’s fiduciary duty to

Lawrence as both a parent and physician constitute exceptional circumstances

such that the failure to return the consideration should not preclude her suit.

Because we conclude that the releases are not illegal and that neither the alleged

illegal consideration nor Dr. Greenberg’s alleged breach of his fiduciary duties

affect the requirement of return of consideration, we reject these arguments.     4



       First, we agree with the   district court ’s reconsidered decision that the

releases at issue here are not contracts of adhesion.   5
                                                            Michigan establishes a

4
       We note that our review of the issues presented was largely unaided by
appellant’s appendix, which contains only a few pages of each of the pleadings
listed in its Table of Contents. Further, although counsel identified where the
major issues were ruled upon, he did not tell us where the issues were raised or
provide citations to the record for reference. Counsel is reminded of its
obligations to “cite the precise reference in the record where [an] issue was
raised,” 10th Cir. R. 28.2(C)(2), and to “file an appendix sufficient for
considering and deciding the issues on appeal,” 10th Cir. R. 30.1(A)(1).
5
       Appellee contends that appellant may not argue the releases were contracts
of adhesion because appellant did not make that contention to the    district court .
However, when, as here, a court disposes of a case on a point not argued by the
parties, it is axiomatic that the parties may challenge that ruling and the court’s
                                                                        (continued...)

                                             -5-
two-prong test for determining whether a contract is one of adhesion: “(1) What

is the relative bargaining power of the parties, their relative economic strength,

the alternative sources of supply, in a word, what are their options?; (2) Is the

challenged term substantively reasonable?”         Barck v. Grant State Bank , 357

N.W.2d 872, 874 (Mich. Ct. App. 1984). In looking at the nonconsensual nature

of adhesion contracts (the first prong above), the Michigan Supreme Court has

described the characteristics of a contract of adhesion as: “the parties to the

contract were of unequal bargaining strength; the contract is expressed in

standardized language prepared by the stronger party to meet his needs; and the

contract is offered by the stronger party to the weaker party on a ‘take it or leave

it’ basis.” Morris v. Metriyakool , 344 N.W.2d 736, 756 (Mich. 1984) (further

citation omitted). The court also emphasized that there is generally no

opportunity for the weaker party to negotiate and the circumstances are such that

the weaker party “cannot obtain the desired product or service except by

acquiescing in the form agreement.”    Id. at 742.

      Here, appellant appears to contend that Lawrence was the weaker party to

the releases, due to his addiction to the alleged additional consideration of 100

Xanax pills and an alleged threat by Dr. Greenberg that he would cut off



5
 (...continued)
underlying analysis on appeal.

                                             -6-
Lawrence’s drug supply should Lawrence sue him. However, appellant admits

that Dr. Greenberg was not the only source of supply for Lawrence’s addiction.

See Appellant’s Br. at 11. Further, even if it were established that Lawrence

signed the releases to obtain the 100 Xanax pills or to ensure that Dr. Greenberg

would continue to provide drugs to him, none of the remaining factors in

Michigan’s characterization of an adhesion contract are present. The releases in

question were not standardized forms and were not offered by Dr. Greenberg on a

“take it or leave it” basis.   See Morris , 344 N.W.2d at 756. In fact, the record is

undisputed that it was Lawrence who initially threatened to sue Dr. Greenberg and

then demanded money in exchange for his promise not to sue. Further, the record

is undisputed that Lawrence had the release forms prepared for his own use and

brought them to a meeting with Dr. Greenberg. Under these circumstances,

appellant has not established the adhesive nature of the releases.

       Because both prongs of the Michigan test must be present, we need not

examine appellant’s arguments that the releases are substantively unreasonable in

our determination whether the releases were contracts of adhesion. However,

appellant has also challenged appellee’s invocation of the failure to return the

consideration defense based on her argument that the releases are illegal in

purpose and consideration. Appellant argues that because Dr. Greenberg

“imposed” the releases on Lawrence “as a condition of further provision of



                                            -7-
drugs,” the releases are illegal in purpose.         See Appellant’s Br. at 13. She also

argues that because Dr. Greenberg gave Lawrence 100 Xanax pills at the time of

signing the releases, and because distribution of controlled substances under these

circumstances is illegal, the releases are also illegal in consideration.

       We agree with the district court that, on their faces, the releases are not

illegal in purpose. They seek only to release appellee’s potential liability for past

wrongful conduct, an agreement that is not only cognizable but favored under

Michigan law. See Stefanac , 458 N.W.2d at 60.           6
                                                             The existence of past illegal

conduct which might also be subject to criminal liability does not make the

releases themselves illegal or unenforceable.           Cf. People v. Cole , 84 N.W.2d 711,

721-22 (Mich. 1957) (noting that settlement of civil liability does not preclude

criminal prosecution for underlying conduct). Further, without determining

whether the parol evidence rule would allow consideration of the 100 Xanax pills

as an additional, illegal consideration for the releases, we agree with appellee that

even were the presence of an illegal consideration established it would not excuse

Lawrence from the obligation to return the stated monetary consideration as a

precondition to suit. The only two stated exceptions to Michigan’s requirement


6
       Because these releases seek to discharge liability solely for past conduct,
they differ from exculpatory agreements absolving parties from medical
negligence before medical treatment, which are prohibited under Michigan law.
See Cudnik v. William Beaumont Hosp. , 525 N.W.2d 891, 896 n.8 (Mich. Ct. App.
1994).

                                               -8-
that consideration be returned before a release can be challenged are 1) a waiver

of the plaintiff’s duty to return the consideration by the defendant, and 2) fraud in

the execution of the releases.   See Stefanac , 458 N.W.2d at 60.   The alleged

illegal consideration under the facts of this case does not implicate either of these

exceptions. We also note that the releases are supported by an express, valid,

monetary consideration, the payment of which is undisputed.

       Finally, we reject appellant’s contentions that Lawrence’s addiction and

Dr. Greenberg’s alleged fiduciary duties to Lawrence are exceptional

circumstances which preclude use of this defense. Appellant has pointed to no

authority where unusual circumstances have been recognized as the basis for an

exception to the defense, and we see nothing in Michigan’s case law which would

support such an approach.

Claim for Loss of Consortium

       Although we affirm the district court ’s dismissal of the substantive claims

against appellee, we disagree with the   district court ’s apparent grant of summary

judgment on appellant’s loss of consortium claim.    7
                                                         Appellant contends that her

loss of consortium claim, although derivative of Lawrence’s claims, is

7
       Contrary to appellant’s assertion,     see Appellant’s Br. at 16, this claim was
not actually addressed by the court in its final summary judgment order.         See
Appellant’s App. at 69-75. We assume, however, based on the court’s ultimate
denial of Lawrence’s substantive claims against Dr. Greenberg and its dismissal
of the action, that the court also meant to deny the loss of consortium claim on the
basis of authority cited in its first order.    See id. at 64.

                                           -9-
independent of them and is not precluded by the releases. As appellee points out,

Michigan authority states that a loss of consortium claim rises or falls with the

success of the injured party’s claims from which it is derived,       see Long v. Chelsea

Community Hosp. , 557 N.W.2d 157, 162-63 (Mich. Ct. App. 1996);             Berryman v.

K Mart Corp. , 483 N.W.2d 642, 646 (Mich. Ct. App. 1992). Nonetheless, other

authority indicates that this concept is not applicable when, as here, the claims of

the injured party have been released.     See Oliver v. Department of State Police      ,

408 N.W.2d 436, 438-39, 440 (Mich. Ct. App. 1987);         Oldani v. Lieberman , 375

N.W.2d 778, 780-83 (Mich. Ct. App. 1985). We agree that Michigan law

supports appellant’s position. However, because the record with respect to this

claim is not developed, we express no opinion about the validity of this claim

other than to rule that, on the sparse facts presented on appeal, it is not foreclosed

by the releases as a matter of law.     See Oldani , 375 N.W.2d at 780.

       Further, we choose not to consider whether Michigan’s wrongful conduct

rule precludes appellant’s loss of consortium claim, an argument raised by

appellee for the first time on appeal. While this court can affirm on grounds not

relied on by the district court so long as the record is sufficient to permit

conclusions of law, see United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir.

1994), the decision whether to resolve an issue raised for the first time on appeal

is left to our discretion.   See Anixter v. Home-Stake Prod.      Co. , 77 F.3d 1215,



                                            -10-
1229 (10th Cir. 1996). Because the record is not developed as to the underlying

facts that bear upon appellant’s loss of consortium claim, facts which are also

pertinent to a determination whether the wrongful conduct rule applies here, we

remand the issue to the   district court for further proceedings.



Appeal No. 98-1366

Cross-Appeal of Venue Ruling

       We have not affirmed the     district court’s decision in all respects and are

therefore compelled to consider appellee’s conditional cross-appeal challenging

the district court ’s denial of appellee’s motion to dismiss for improper venue or to

transfer venue. The    district court concluded that venue was proper in Colorado,

pursuant to 28 U.S.C. § 1391(a)(3), because Dr. Greenberg had had sufficient

contacts with that state to justify personal jurisdiction over him. The          court did

not consider appellee’s alternative proposition, that venue in Colorado was also

improper under 28 U.S.C. § 1391(a)(2), which requires that “a substantial part of

the events or omissions giving rise to the claim” occur in the venue district.          Id.

The court also denied appellee’s motion to transfer venue pursuant to

28 U.S.C. § 1404(a). Appellee contends the first ruling was legal error in light of

language in § 1391(a)(3) that this provision is only to be relied upon to establish

venue “if there is no district in which the action may otherwise be brought.”           Id.



                                            -11-
Appellant appears to concede the point, and we agree that this ruling of the

district court was error. Therefore, we vacate the   district court’s ruling on

appellee’s motion to transfer venue.



Conclusion

      In appeal No. 98-1349, judgment of the United States District Court for the

District of Colorado is AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings consistent with this order. In appeal No.

98-1366, we VACATE the       district court ’s ruling on appellee’s motion to transfer

venue.

                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




                                          -12-
