                                                                     FILED
                                                              United States Court of A
                                                                      Tenth Circuit
                                      PUBLISH
                                                                     JUN 14 2001
                  UNITED STATES COURT OF APPEALS
                                                                PATRICK FISH
                                                                          Clerk
                               TENTH CIRCUIT


DWIGHT A. HARRISON,

             Plaintiff - Appellant,

  v.

WAHATOYAS, L.L.C., a Colorado
limited liability company; FIRST
BANK, FSB,

             Defendants - Appellees,

       and

GRANDOTE INTERNATIONAL
LIMITED LIABILITY COMPANY, a
                                                No. 99-1319
Colorado limited liability company;
U.S. BANK NATIONAL
ASSOCIATION; GRANDOTE GOLF
AND COUNTRY CLUB, a Colorado
general partnership; DWIGHT A.
HARRISON CORPORATION, a
Colorado corporation; DAVID F.
JONES, an individual; CHARLES
HARRISON; JOHN P. HARRISON;
PAUL D. HARRISON,

             Defendants.
DWIGHT A. HARRISON,

             Plaintiff,

  v.

WAHATOYAS, L.L.C., a Colorado
limited liability company; FIRST
BANK, FSB,

             Defendants -Appellees,

  v.

CHARLES HARRISON, JOHN P.
HARRISON, PAUL D. HARRISON,
                                                    No. 99-1390
             Defendants - Appellants,

       and

GRANDOTE INTERNATIONAL
LIMITED LIABILITY COMPANY,
a Colorado limited liability company;
U.S. BANK NATIONAL
ASSOCIATION; GRANDOTE GOLF
AND COUNTRY CLUB, a Colorado
general partnership; DWIGHT A.
HARRISON CORPORATION, a
Colorado corporation; DAVID F.
JONES, an individual,

             Defendants.


                 Appeal from the United States District Court
                         for the District of Colorado
                           (D.C. No. 94-WM-1505)




                                        -2-
Dianne M. Kueck (Chesley K. Culp, III, S. Kirk Ingebretsen with her on the
briefs) Moye, Giles, O’Keefe, Vermeire & Gorrell, LLP, Denver, Colorado, for
Appellants.

Stephen D. Bell of Dorsey & Whitney, LLP for First Bank, FSB and Laura B.
Redstone of Ballard, Spahr, Andrews & Ingersoll, LLP for Wahatoyas, L.L.C.
(Jessica L. Harshbarger, Dorsey & Whitney, LLP, Fredric J. Lewis, Senn, Lewis
& Visciano, PC, and Harry L. Simon with them on the brief), Denver, Colorado,
for Appellees.


Before SEYMOUR, McKAY, and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.



      Appellants’ predecessors in interest borrowed money from two banks to

finance a golf course located in La Veta, Colorado. 1 After financial difficulties,

appellants settled the inevitable ensuing litigation by paying off the loan to one of

the banks. They contend that an agreement between the banks required

distribution of the settlement proceeds to appellants’ debts with both banks.

When appellants learned that the settlement money had not been apportioned,

they filed suit alleging breach of contract, breach of the duties of good faith and

fair dealing, breach of fiduciary duty, constructive fraud, and negligence.



      1
        This golf course spawned a great deal of litigation, including a related
appeal in this Court. See Kojima v. Grandote Int’l L.L.C. (In re Grandote
Country Club Co.), No. 99-1127 (10th Cir. 2001); see also In re Kojima, 177 B.R.
696 (Bankr. D. Colo. 1995); RTV, L.L.C. v. Grandote Int’l L.L.C., 937 P.2d 768
(Colo. Ct. App. 1996).

                                        -3-
Appellants lost in all respects at the summary judgment stage and now appeal.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                          I

      Before delving into the facts of this case, we note that this appeal is

significantly complicated by the fact that each party has gone through several

incarnations. To assist the reader, each row in the following chart lists a party,

with the parties’ name changes shown by moving from left (earliest in time) to

right (most recent). We refer to appellants collectively as “Grandote” and the

other parties by the names applicable to the time period under discussion.

 Plaintiffs-   Grandote Golf          Dwight Harrison        Grandote
 Appellants    and Country Club       (succeeded to          International L.L.C.
                                      Grandote Golf and      (succeeded to Dwight
                                      Country Club’s         Harrison’s interest in
                                      interest in Jan.       Sept. 1993; managed
                                      1991)                  by the Harrison
                                                             family: father Dwight
                                                             and sons Charles,
                                                             John, and Paul)
 Defendant-    First Federal          Resolution Trust       Wahatoyas L.L.C.
 Appellee      Savings and Loan       Corp. (“RTC”)          (acquired RTC’s
               Association of         (receiver for          interest in
               Estherville and        Emmettsburg in         Emmettsburg)
               Emmettsburg            June 1990)
               (“Emmettsburg”)
Third Party Washington            Metropolitan        First Bank,     U.S. Bank
Defendant- Federal                Federal Bank        FSB             National
Appellee    Savings Bank          of Iowa             (acquired       Association
            (“Washington”)        (“Metropolitan”)    Metropolitan    (acquired
                                                      in Feb. 1995)   First Bank)



                                         -4-
      In the mid-1980s, Grandote owned a piece of land and water rights in

Huerfano County, Colorado. To develop a golf course and residences on the land,

Grandote borrowed money from two banks in 1984: $4 million from Washington,

which was secured by a first lien on the land, and $500,000 from Emmettsburg,

which was secured by a second lien on the land and a first lien on the water

rights. By 1987, Grandote needed more cash to complete the golf course and

sought additional financing from Washington. As a condition of receiving

additional credit (“the revolving loan”), Grandote gave Washington authority to

arrange with Emmettsburg any modifications to the Emmettsburg loan that

Washington believed necessary to provide adequate security for the new revolving

loan. Pursuant to that authority, Washington and Emmettsburg entered into the

“Emmettsburg Agreement,” which provided that “[a]ll collections received by

either Washington or Emmettsburg on account of the Washington Loan or the

Emmettsburg Loan shall be shared pro rata by the parties,” with 13.878% going to

Emmettsburg and the remaining 86.122% going to Washington. (I R. Doc. 179

Ex. 2 ¶ 5.) The parties dispute whether Grandote was aware of this agreement,

although it is undisputed that Grandote was not a party to it.

      Life on the links was not all bliss, and Grandote suffered financial setbacks

leading to litigation involving Grandote and Washington’s successor in interest,

Metropolitan, regarding payment of Grandote’s loans. That litigation was settled

by means of a “Settlement Stipulation,” (Id. Ex. 4), which, after further

                                         -5-
negotiations, was modified by a “Payment and Release Agreement,” (II R. Doc.

316 Ex. 1). Pursuant to those agreements, Grandote paid Metropolitan $1.95

million to resolve the litigation and pay off the Washington/Metropolitan loans.

      In September 1993, RTC, which had become the receiver for Emmettsburg,

initiated foreclosure proceedings on the Emmettsburg loan. Grandote attempted

to pay off the outstanding balance on the loan. Now aware of the Emmettsburg

Agreement, Grandote interpreted the “all collections” provision as applying to the

settlement proceeds Grandote had paid to Metropolitan and reasoned that

13.878% of its $1.95 million payment to Metropolitan should have been applied

to the Emmettsburg Loan. Grandote subtracted this amount (roughly $270,000)

from the outstanding loan balance and tendered the remaining amount due on the

loan (just under $58,000) to RTC. RTC refused this tender because Metropolitan

had not given any of the settlement proceeds to RTC. Grandote viewed this as a

breach of the Emmettsburg Agreement and sued RTC. Wahatoyas 2 acquired

RTC’s interest in the Emmettsburg loan and was substituted for RTC in the

action. Metropolitan (whose interests were acquired by First Bank, and then by

U.S. Bank) was brought in as a third-party defendant on the theory that if




      2
         “Wahatoyas,” a phonetic spelling of a plains Indian word, refers to the
“geologic anatomy” of the area currently known as the Spanish Peaks located in
the vicinity of the property. See Louis B. Sporleder, Sr., The Romance of the
Spanish Peaks 9 (1960).

                                        -6-
Grandote prevailed, then RTC/Wahatoyas would seek contribution from

Metropolitan/First Bank/U.S. Bank.

      We need not detail the complex nature of the proceedings below except to

note that they were initially filed in Colorado state court and then removed to

federal court, and that the district court granted summary judgment against

Grandote on all claims.

                                         II

      Before we reach the merits, an unusual procedural issue requires our

attention. The notice of appeal naming Grandote L.L.C. as a party to this appeal

was filed, pro se, by Dwight Harrison and was later amended to include Dwight’s

sons, Charles, John, and Paul. Harrison is not an attorney, and no attorney ever

filed a notice of appeal on behalf of Grandote L.L.C. Wahatoyas and U.S. Bank

argue that the notice of appeal was deficient as to Grandote L.L.C.

      As a general matter, a corporation or other business entity can only appear

in court through an attorney and not through a non-attorney corporate officer

appearing pro se. See Flora Constr. Co. v. Fireman’s Fund Ins. Co., 307 F.2d

413, 414 (10th Cir. 1962) (“The rule is well established that a corporation can

appear in a court of record only by an attorney at law.”). In this case, however,

only the notice of appeal was filed by a non-attorney, and Grandote now has

counsel who have performed all of the substantive legal work.




                                         -7-
      The Ninth Circuit recently addressed the issue of “whether a corporation’s

notice of appeal, signed and filed by a corporate officer, is invalid because it was

not signed and filed by counsel.” Bigelow v. Brady (In re Bigelow), 179 F.3d

1164, 1165 (9th Cir. 1999). The court concluded that the notice was valid

because “[a] notice of appeal is just that—a notice. It is not a motion or a

pleading.” Id. (citing Fed. R. Civ. P. 7); cf. Becker v. Montgomery, No. 00-6374,

slip op. at 9-10 (U.S. May 29, 2001) (“[I]mperfections in noticing an appeal

should not be fatal where no genuine doubt exists about who is appealing, from

what judgment, to which appellate court.”). The First Circuit reached the same

conclusion in a case citing Bigelow. Instituto de Educación Universal Corp. v.

United States Dep’t of Educ., 209 F.3d 18, 22 (1st Cir. 2000) (“[W]e believe that

a valid distinction can be drawn between ongoing legal representation and the

essentially ministerial action involved in the filing of a notice of appeal.”).

      We find the reasoning of these cases persuasive and thus “fail to see any

compelling reason to refuse to recognize a corporation’s notice of appeal, signed

and filed by a corporate officer, so long as a lawyer promptly thereafter enters a

formal appearance on behalf of the corporation and undertakes the

representation.” Bigelow, 179 F.3d at 1165. Appellees argue that Bigelow

requires a lawyer to “promptly” enter an appearance after the notice of appeal, a

requirement they claim Grandote failed to observe because Grandote’s counsel

did not enter an appearance until eight months after the notice of appeal was filed.

                                          -8-
We disagree. Grandote retained counsel in time to perform the necessary

substantive legal work (i.e., briefing and oral argument). Under these

circumstances, we hold that Grandote L.L.C. is a proper party. See id. at 1165–66

(“[C]ounsel for [appellant] entered his appearance of record prior to the time any

briefs, motions or responses were due . . . [and] filed the brief, responded to the

motions and argued the case. Under the circumstances, we hold that the notice of

appeal was not invalid . . . .”); Instituto de Educación Universal, 209 F.3d at 22

(holding that a corporate appellant was a proper party because it retained counsel

“to take up the cudgels and prosecute the appeal”).

                                         III

      “We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court . . . .” Kaul v. Stephan, 83 F.3d

1208, 1212 (10th Cir. 1996) (citation omitted). That standard is set forth in Fed.

R. Civ. P. 56(c): Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” In reviewing a

summary judgment motion, the court is to view the record “in the light most

favorable to the nonmoving party.” Thournir v. Meyer, 909 F.2d 408, 409 (10th

Cir. 1990) (citation omitted). The purpose of a summary judgment motion, unlike

that of a motion to dismiss, is to determine whether there is evidence to support a

                                         -9-
party’s factual claims. Unsupported conclusory allegations thus do not create a

genuine issue of fact. See United States v. Simons, 129 F.3d 1386, 1388–89 (10th

Cir. 1997) (citing Allen v. Muskogee, Okla., 119 F.3d 837, 843–44 (10th Cir.

1997)). To withstand summary judgment, the nonmoving party “must come

forward with ‘specific facts showing that there is a genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(quoting Fed. R. Civ. P. 56(e)).

                              A. Breach of Contract

      The district court provided several alternative reasons for granting

summary judgment in favor of Wahatoyas on Grandote’s breach of contract

claim. 3 We need not discuss all of these reasons because we can affirm on the

basis of one. See Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will

not undertake to decide issues that do not affect the outcome of a dispute.”).

      The district court held that Grandote’s contract claim was barred by the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C.




      3
         The district court held that: (1) The Settlement Stipulation terminated
the Emmettsburg Agreement (and thus any obligation to pay 13.878% toward the
Emmettsburg loan); (2) Grandote was not a third party beneficiary of the
Emmettsburg Agreement; and (3) Grandote’s claim failed under the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 12
U.S.C. § 1823(e), and the doctrine of D’Oench, Duhme & Co. v. FDIC, 315 U.S.
447 (1942), both of which impose requirements on agreements that diminish a
receiver’s (i.e., RTC’s) interests in a bank’s assets.

                                         -10-
§ 1823(e) (“FIRREA”), 4 and the doctrine of D’Oench, Duhme & Co. v. FDIC, 315

U.S. 447 (1942). “The common law D’Oench doctrine and its statutory

codification, 12 U.S.C. § 1823, prohibit claims based on agreements not reflected

in the official records of a failed bank or savings and loan institution.” FDIC v.

Noel, 177 F.3d 911, 914 (10th Cir. 1999), cert. denied, 528 U.S. 1116 (2000).

The “purpose underlying the D’Oench doctrine [is] to ‘permit regulators to

accurately appraise the assets of savings institutions by allowing the regulators to

rely on the assets’ face value,’” and the doctrine’s focus is on “‘the effect the

[debtor’s] acts have on the regulatory agency’s ability to evaluate quickly and

accurately a savings institution’s assets.’” Id. at 918 (quoting Castleglen, Inc. v.

Resolution Trust Corp., 984 F.2d 1571, 1576, 1577 (10th Cir. 1993)).


      4
          Title 12 U.S.C. § 1823(e) states:

      (1) In general
             No agreement which tends to diminish or defeat the interest of
      the Corporation in any asset acquired by it under this section or
      section 1821 of this title, either as security for a loan or by purchase
      or as receiver of any insured depository institution, shall be valid
      against the Corporation unless such agreement—
             (A) is in writing,
             (B) was executed by the depository institution and any person
      claiming an adverse interest thereunder, including the obligor,
      contemporaneously with the acquisition of the asset by the depository
      institution,
             (C) was approved by the board of directors of the depository
      institution or its loan committee, which approval shall be reflected in
      the minutes of said board or committee, and
             (D) has been, continuously, from the time of its execution, an
      official record of the depository institution.

                                         -11-
      Grandote contests application of FIRREA and the D’Oench doctrine on

several fronts. First, Grandote claims that Wahatoyas is not entitled to bring the

FIRREA/D’Oench defense because Wahatoyas waived it. Wahatoyas initially

asserted the defense but later withdrew it, and the defense was not a part of the

original pretrial order. Realizing that the defense actually did have merit,

Wahatoyas changed its mind again and successfully moved the district court to

amend its answer to include the defense. The district court’s decision is reviewed

for abuse of discretion. See TV Communications Network, Inc. v. Turner

Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992). Given this

standard of review and the fact that the D’Oench defense is a purely legal one that

would require little, if any, additional discovery, we will not disturb the district

court’s sound discretion to manage the scope of the issues of this case.

      Grandote next attacks the applicability of FIRREA because that statute does

not apply retroactively, see Okla. Radio Assocs. v. FDIC, 987 F.2d 685, 690 (10th

Cir. 1993), and thus can have no effect on the Emmettsburg Agreement, which

was signed two years before FIRREA was enacted. Wahatoyas argues that

FIRREA should apply because Grandote’s claim arises from the Settlement

Stipulation, which was signed after the statute’s effective date. We agree with

Grandote that the relevant agreement is the Emmettsburg Agreement and thus

FIRREA does not apply. Most importantly, the Emmettsburg Agreement, with its

sharing provision, is the key document that would affect Wahatoyas’s interests.

                                          -12-
In addition, Wahatoyas’s argument is self-defeating. If the Settlement Stipulation

were the relevant document, Wahatoyas could not rely on FIRREA because the

Settlement Stipulation appears to satisfy FIRREA’s requirements—the Settlement

Stipulation is written, and Grandote is a party to it. See 12 U.S.C.

§ 1823(e)(1)(A)–(B).

      Even without FIRREA, the common law D’Oench doctrine is broad enough

to defeat Grandote’s claim. See Noel, 177 F.3d at 917 (“[W]e may affirm the

district court’s grant of summary judgment if § 1823(e)’s common law

counterpart, the D’Oench doctrine, bars [the] claim.”). Grandote’s breach of

contract claim is premised on an adverse interest to Wahatoyas (the successor to

the receiver, RTC) by means of the Emmettsburg Agreement. Grandote was not a

party to that agreement. As a result, although “the Emmettsburg Agreement was

in the bank’s files, that agreement . . . provided no indication on its face that

Grandote or D[wight] Harrison, neither of which was a signatory, could claim its

benefits.” (Appellees’ Br. at 37.) Perhaps a close and careful study of the

Emmettsburg Agreement might have alerted RTC to a potential claim.

Nevertheless, the D’Oench doctrine does not require so much of bank examiners.

As we explained in Noel:

      Given the overarching purposes behind the doctrine, courts have
      consistently held that inferences that an examiner could feasibly
      draw from a failed institution’s written records are insufficient to
      preclude the operation of D’Oench. . . . In short, the [receiver] has
      no duty to scour a failed institution’s documents for inferences and

                                          -13-
      hidden duties supporting defenses or counterclaims that might
      prevent the [receiver] from collecting the full value of an otherwise
      facially valid instrument.

177 F.3d at 918 (citations omitted). The Emmettsburg Agreement was not clearly

written to benefit Grandote, and the D’Oench doctrine prohibits Grandote from

enforcing it against Wahatoyas.

            B. Breach of the Duties of Good Faith and Fair Dealing,
                  Breach of Fiduciary Duty, and Negligence 5

      The parties disagree about whether Grandote’s claim for breach of good

faith and fair dealing is properly considered a tort or a contract claim. To the

extent that it is a tort claim, as the district court concluded, it must fail under

Colorado law. See Wells Fargo Realty Advisors Funding, Inc. v. Uioli, Inc., 872

P.2d 1359, 1362 (Colo. Ct. App. 1994) (holding that there is no independent tort

action for breach of implied duty of good faith and fair dealing outside of the

insurance carrier context). The result is the same even if the claim is construed as

arising under contract because there is no allegation that the Emmettsburg

Agreement was breached in a way that harmed Grandote’s benefits from the

agreement. Grandote claims it is a third-party beneficiary of the Emmettsburg



      5
         Grandote also alleged constructive fraud below but has failed to argue
that summary judgment on that claim was erroneous. Grandote has thus waived
its appeal of that claim. See Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d
613, 624 (10th Cir. 1998) (“[A]rguments not set forth fully in the opening brief
are waived.”).


                                          -14-
Agreement because the agreement permitted Grandote to obtain the revolving

loan and lower interest rates on its loan with Emmettsburg. Neither of these

benefits was affected by U.S. Bank’s failure to distribute part of the settlement

monies to Wahatoyas. There was no violation of the covenant of good faith and

fair dealing because Grandote got what it expected out of the Emmettsburg

Agreement. See id. at 1363 (noting that the duty of good faith “requires only that

the parties perform in good faith the obligations imposed by their agreement”);

Ervin v. Amoco Oil Co., 885 P.2d 246, 251 (Colo. Ct. App. 1995), rev’d in part

on other grounds, 908 P.2d 493 (Colo. 1996) (noting that good faith implicates

“consistency with the justified expectations of the other party” (citation omitted)).

      Summary judgment was also appropriate on the fiduciary duty and

negligence claims. There is no per se fiduciary duty between a borrower and a

lender. See Wells Fargo Realty Advisors, 872 P.2d at 1364–65. Grandote has

offered nothing more than conclusory allegations to support a fiduciary

relationship. Regarding the negligence claim, Grandote has similarly failed to

identify a specific duty applicable under the facts of this case that Wahatoyas has

breached. While banks certainly have a duty to keep track of their customers’

money, see, e.g., Central, Inc. v. Cache Nat’l Bank, 748 P.2d 351, 354 (Colo. Ct.

App. 1987), we fail to see how that generalized duty leads to the much more

specific and onerous obligation Grandote posits—namely, requiring Wahatoyas to




                                         -15-
fight another bank for money under a settlement agreement to which Wahatoyas

was not a party.




                                     -16-
                               C. Indemnification

      The district court ruled that the Payment and Release Agreement obligated

Grandote to indemnify U.S. Bank for the claims arising out of this litigation.

Grandote contends that the indemnification clause is inapplicable because this

action does not concern either the “Property” or the “Settlement” as those terms

were used in the Payment and Release Agreement.

      We see no error in the district court’s determination. The indemnification

clause in the settlement agreement is broad: it encompasses “any . . . claim and

demands made . . . in connection with the Property or the Settlement Agreement.”

(II R. Doc. 206 Ex. 5 at 2–3.) Despite Grandote’s arguments to the contrary, this

litigation certainly is “in connection with . . . the Settlement Agreement” because

all of Grandote’s claims concern the proper distribution of the payment Grandote

made pursuant to that agreement. The purpose of the indemnification clause was

to protect Metropolitan/U.S. Bank from further costs associated with settling its

dispute with Grandote. The instant lawsuit has forced Metropolitan/U.S. Bank to

become involved in yet more litigation, the outcome of which could cost U.S.

Bank nearly $300,000. This is exactly what the plain language of the Settlement

Agreement was intended to avoid.

                                        IV

      The judgment of the district court is AFFIRMED.




                                        -17-
