                                                            FILED
                                                United States Court of Appeals
                   UNITED STATES COURT OF APPEALS       Tenth Circuit

                          FOR THE TENTH CIRCUIT              May 6, 2014

                                                         Elisabeth A. Shumaker
                                                             Clerk of Court
TERRY J. KUTCHER,

            Plaintiff-Appellant,

v.                                               No. 13-6255
                                          (D.C. No. 5:13-CV-00309-C)
ROBERT STONE, an individual,                     (W.D. Okla.)

            Defendant-Appellee,

and

JUNCTION DEVELOPMENT GROUP,
LLC, a Missouri limited liability
company; JUNCTION REAL ESTATE
GROUP, LLC, a Missouri limited
liability company; TRI-S PROPERTIES
& CONSTRUCTION, LLC, a Missouri
limited liability company; CARL
EDWARDS, LLC, a Missouri limited
liability company; DUBAS, LLC,
a Missouri limited liability company;
SANTINI AIR, LLC; CARL M.
EDWARDS, SR., an individual;
CURTIS HARDIN, an individual;
DAVID BABEL, an individual;
DALE NICHOLS, an individual;
CARL M. EDWARDS, II, JR.,
an individual; GLENDA HARDIN;
DOROTHY STONE, an individual;
TROY D. VANBRUNT, an individual,

            Defendants.
                            ORDER AND JUDGMENT*


Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.


      Plaintiff Terry J. Kutcher, appearing pro se, appeals from the district court’s

order granting summary judgment to defendant Robert Stone on his breach of

contract claim. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                    I. Background

      In 2007, Mr. Kutcher and Mr. Stone formed Chisholm Trail Construction, LLC

(“CTC”) to develop real property in Missouri. CTC entered into a loan/line of credit

agreement of a little more than $1,500,000 from First Capital Bank in Kingfisher,

Oklahoma. Mr. Kutcher alleged that Mr. Stone withdrew more than $900,000 from

the CTC account at First Capital Bank in 2007 and 2008 through numerous

unauthorized written and computer-generated checks. In March 2013, Mr. Kutcher

filed his pro se complaint against defendants in state court, alleging breach of

contract, fraud, unjust enrichment, and money had and received. Defendants

subsequently removed the case to federal court.
*
      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.


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      The district court dismissed all of the claims, except for Mr. Kutcher’s claim

against Mr. Stone for breach of contract. Mr. Stone then filed a motion for summary

judgment, arguing that Mr. Kutcher’s breach of contract claim either: (1) was barred

by the statute of limitations; or (2) failed on the merits because Mr. Kutcher could

not produce evidence of damages, considering that First Capital Bank had chosen to

pursue Mr. Stone alone for repayment of the loan, and the district court had already

granted summary judgment in favor of First Capital Bank in its suit against

Mr. Stone. The district court declined to dismiss the breach of contract claim as

time-barred, but it granted summary judgment in favor of Mr. Stone because

Mr. Kutcher asserted that he had suffered damages without demonstrating any

evidentiary support. Mr. Kutcher filed this appeal.

                                    II. Discussion

      Mr. Kutcher argues on appeal that the district court improperly granted

summary judgment to Mr. Stone on his breach of contract claim. “We review a

district court’s grant of summary judgment de novo.” SEC v. Thompson, 732 F.3d

1151, 1156 (10th Cir. 2013). A district court should grant a summary judgment when

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In making that determination,

a court views the evidence and draws reasonable inferences therefrom in the light

most favorable to the nonmoving party.” Thompson, 732 F.3d at 1156-57 (brackets

omitted) (internal quotation marks omitted). But “bald assertions in briefs that there


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are genuine issues of material fact are insufficient to merit reversal of summary

judgment.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). The

non-moving party must “bring to the trial court’s attention sufficient evidence to

establish the essential element” of his claim challenged by the summary judgment

motion. Id. at 677. Therefore, “although our review is de novo, we conduct that

review from the perspective of the district court at the time it made its ruling,

ordinarily limiting our review to the materials adequately brought to the attention of

the district court by the parties.” Id. at 671. Because Mr. Kutcher appears pro se, we

construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972)

(per curiam).

      To prove a claim for breach of contract, Mr. Kutcher was required to prove

“1) formation of a contract; 2) breach of the contract; and 3) damages as a direct

result of the breach.” Digital Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834,

843 (Okla. 2001). In his response to Mr. Stone’s summary judgment motion,

however, Mr. Kutcher merely asserted in a single sentence that he had “suffered

damages in the amount greater than Seventy Five Thousand Dollars ($75,000.00) as a

result of the fraudulent actions of . . . Stone.” R. at 260. Although he attached

seventy-two pages of exhibits to his response, see id. at 267-338, he made no

reference to them to demonstrate to the district court that any of his exhibits showed

that he suffered personal damages due to Mr. Stone’s unauthorized withdrawals from

CTC’s account.


                                          -4-
      Under Adler, 144 F.3d at 671, we ordinarily would not consider Mr. Kutcher’s

references to his exhibits in his brief on appeal because he did not bring these

materials to the district court’s attention. In any event, these references are

insufficient to show that he personally suffered damages from Mr. Stone’s actions.

      Affirmed.


                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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