UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ALERUS FINANCIAL, N.A., 

Third-Party Plaintiff and Counterclaim 

Plaintiff - Appellant, 

v. 

MATTHEW BREWER; ROBERT JENSEN; 

SUSAN DUKES; PIONEER CENTRES 

HOLDING COMPANY; RICHARD L. 

EASON, 

Third-Party Defendants Counterclaim 

Defendants - Appellees. 

No. 15-1245 

(D.C. No. 1:12-CV-02547-RM-MEH) 

(D. Colorado) 

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ORDER AND JUDGMENT*

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Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

Alerus Financial, N.A. (Alerus) filed this cross appeal in response to The 

Pioneer Centres Holding Company Employee Stock Ownership Plan and Trust’s (the 

“Plan”) appeal of the district court’s order granting summary judgment in favor of 

Alerus on the Plan’s claim for breach of fiduciary duty under 29 U.S.C. § 1109 of the 

Employee Retirement Income Security Act of 1974 (ERISA). Alerus argues here that 

 *

 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

June 5, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

the district court erred in holding that ERISA does not permit Alerus to seek 

contribution from cofiduciaries. We dismiss this appeal as moot. 

I. BACKGROUND1

Pioneer Centres Holding Company (Pioneer) owned and operated several 

automobile dealerships in Colorado and California. Pioneer’s founder, Matthew 

Brewer, owned most of Pioneer’s stock. In 2009, Mr. Brewer agreed to transfer 100 

percent ownership of Pioneer to the Plan (the “Transaction”). In order to avoid any 

conflict of interest issues, the Plan hired Alerus as an independent “transactional 

trustee,” to determine whether, and on what terms, the Plan should purchase Mr. 

Brewer’s shares. But the Transaction could not be completed without the approval of 

the manufacturers whose cars Pioneer sold, including Land Rover. The Transaction 

was never completed and Pioneer later sold its assets to a third party. 

The Plan sued Alerus for breach of fiduciary duty under 29 U.S.C. § 1109 

(ERISA § 409). It claimed damages for the value the Plan lost because the 

Transaction did not close. Alerus moved for summary judgment on the grounds that it 

did not breach any fiduciary duties to the Plan, and that even if there had been a 

breach, the Plan could not prove Alerus caused any losses because the Plan could not 

show Land Rover would have approved the Transaction. 

In addition, Alerus filed a third-party complaint seeking common law 

contribution and indemnification from Plan trustees Matthew Brewer, Robert Jensen, 

 1

 The relevant facts are set forth in detail in Pioneer Centres Holding Co. Emp. 

Stock Ownership Plan & Tr. v. Alerus Fin., N.A., No. 15-1227 (10th Cir. June 5, 

2017). 
3 

and Susan Dukes, Plan committee member Richard Eason, and Plan administrator 

Pioneer (collectively, the “Third-Party Defendants”). Alerus contends the Third-Party 

Defendants committed a breach under 29 U.S.C. § 1105 and therefore should 

contribute their culpable share to any Plan losses, because they knew of any actions 

of Alerus that might be found to constitute a breach and did not make efforts to 

remedy them. The Third-Party Defendants filed a 12(b)(6) motion to dismiss Alerus’s 

claims. They first argued they were not “fiduciaries” so far as the Transaction was 

concerned. Second, they argued ERISA does not allow for common law contribution. 

The district court granted the motion after finding there is no right to 

contribution under ERISA, even assuming for purposes of argument that the ThirdParty Defendants were “cofiduciaries” as Alerus claimed. The district court then 

granted summary judgment in favor of Alerus on the breach of fiduciary duty claim. 

Without deciding whether Alerus had breached any fiduciary duties to the Plan, the 

district court held the Plan had not established a loss caused by any alleged breach. 

The court reasoned that the Plan had failed to present sufficient “evidence that the 

proposed transaction would have been consummated,” because it was only 

speculative that Land Rover’s “approval would have occurred.” 

The Plan appealed from the district court’s order granting summary judgment 

in favor of Alerus in case 15-1227. Alerus then filed this separate cross-appeal 

challenging the district court’s ruling that contribution from cofiduciaries is 

unavailable under ERISA and arguing that the Third-Party Defendants are fiduciaries 

with respect to this Transaction. We have jurisdiction under 28 U.S.C. § 1291. 
4 

II. DISCUSSION 

In a separate opinion, we have affirmed the district court’s order granting 

summary judgment to Alerus on the breach of fiduciary duty claim.2

 In light of this 

affirmance, a decision on whether contribution among cofiduciaries is available 

under ERISA, or whether the Third-Party Defendants are in fact fiduciaries for 

purposes of this Transaction, can have no practical effect on the parties. Indeed, all 

parties agreed that if we affirmed the district court’s grant of summary judgment in 

case 15-1227, this appeal is moot. See Thournir v. Buchanan, 710 F.2d 1461, 1463 

(10th Cir. 1983) (“Generally, an appeal should be dismissed as moot when events 

occur that prevent the appellate court from granting any effective relief.”). 

Our separate decision in case 15-1227, affirming the district court’s order 

granting summary judgment to Alerus has made it impossible for a decision on the 

issues raised by this appeal to grant any effective relief. Accordingly, we DISMISS 

the appeal as moot. 

ENTERED FOR THE COURT 

Carolyn B. McHugh 

Circuit Judge 

 2 See Pioneer, No. 15-1227.