UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JAMES KINGSBURY, Personal Representative of the Estate of and Next of Kin to Rachel Mary Kingsbury, Deceased, Plaintiff - Appellee,

v. WESTLAKE MANAGEMENT COMPANY, a Texas corporation, Defendant - Appellant, and QC PROPERTY HOLDINGS LLC; QC NURSING LLC; RON LUSK, an individual, Defendants. No. 16-6087 (D.C. No. 5:14- CV-00468-M) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, PHILLIPS and McHUGH , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously to honor 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). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### December 30, 2016
Elisabeth A. Shumaker Clerk of Court2 Plaintiff James Kingsbury, acting as the personal repres entative of his mother’s estate, brought the underlying action against the Defendants in their capacities as partners of th e limited partnership that owned the nursing home where Mr. Kingsbury’s mother resided at the time of her death. The general partner appeals the judgment entered against it by the distri ct court on the ground that the action is barred by the statute of limitations. Exer cising jurisdiction under 28 U.S.C. § 1291, we affirm. 1
I Rachel Mary Kingsbury died in residen ce at the Quail Creek Nursing Home in Oklahoma City (Nursing Home), which was owned by the Westlake Nursing Home Limited Partnership (the Pa rtnership), an Oklahoma limited partnership. The Partnership was, in turn, owned by Wes tlake Management Company (Westlake), a Texas corporation, as its general partner and 1% owne r, and Ron Lusk, a Texas resident, as its limited partner and 99% owne r. Mr. Lusk is th e president and 100% owner of Westlake. Ms. Kingsbury choked to death when Qu ail Creek staff negligently fed her solid food in direct contravention of he r dietary restrictions. James Kingsbury brought suit against the Part nership in Oklahoma state c ourt for wrongful death. While that suit was pendi ng, the Partnership sold the Nursing Home for approximately $5.8 million, the proceeds of which were deposited in Westlake’s

1 Westlake’s appeal of a related action involving a diff erent plaintiff is Appeal No. 16-6011, which was argued before th is court on November 16, 2016.3 Texas bank account and then disbursed between Westlake and Mr. Lusk in accordance with their resp ective partnership shares: 99% to Mr. Lusk; 1% to Westlake. 2 A jury later rendered a verdict in favor of Mr. Kingsbury and awarded him $355,484.89 (the Ki ngsbury Judgment). The Kingsbury Judgment remains unpaid, a nd due to the sale of the Nursing Home and distribution of the proceeds, the Pa rtnership is unable to satisfy it. As a result, Mr. Kingsbury filed this action in which he se eks to satisfy the Kingsbury Judgment against Westlake as the general pa rtner and Mr. Lusk as the limited partner of the Partnership. In the district court, Westlake moved to di smiss the complaint on the ground that the statute of limitations had run. In Westlake’s view of Oklahoma law, Mr. Kingsbury should have named the pa rtners in his origin al negligence suit against the Partnership to preserve his ab ility to satisfy the Kingsbury Judgment against them. Because the ne gligence statute-of-limitati ons period had lapsed by the time Mr. Kingsbury obtained his state-c ourt judgment against the Partnership, Westlake argues this action is barred. The district cour t rejected that argument. Noting that Mr. Kingsbury had made no allegations that the negligence of Westlake or Mr. Lusk caused Ms. Kingsbury’s death, the district court concluded the present action was for collecti on of debt and that “a partne r’s liability does not arise until the partnership’s obligation has been dete rmined.” Aplt. App. at 124. The court

2 In a related action, Mr . Kingsbury and plaintiffs re presenting the estate of another Nursing Home reside nt brought a fraudulent transf er action against Westlake and Mr. Lusk. In Appeal No. 16-6055 also issued today, we affirm the judgment entered against Mr. Lusk.4 thus concluded the action had been filed w ithin the five year limitations period for collection of debt and denied Westlake’s motion to dismiss. The parties then stipulated to entry of judgment on the pleadings, subject to Westlake’s express reservation of its statute-of-limitations defense. This appeal followed.
II Westlake argues on appeal, as it did in the district court, that Mr. Kingsbury should have named the partners in his original suit agains t the Partnership, and that because he did not, he is time-barred from doing so now. We review de novo “a district court’s ruling rega rding the applicability of a statute of limitations.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation , 15 F.3d 963, 967 (10th Cir. 1994). “Because the district court’s jurisdiction was base d on diversity of citizenship, Oklahoma substantive law governs the statute of limitations question.” Brady v. UBS Fin. Servs., Inc ., 538 F.3d 1319, 1323 (10th Cir. 2008). “Generally, a statute of limitations begins to run when a cause of ac tion accrues, and a cause of action accrues at the ti me when a plaintiff first could have maintained his action to a successful conclusion.” Okla. Brick Corp. v. McCall , 497 P.2d 215, 217 (Okla. 1972). A Under Oklahoma law, “all partners are liable jointly and severally for all obligations of the partnershi p unless otherwise agreed by the claimant or provided by5 law.” 54 Okla. Stat. § 1-306. 3 Westlake does not conte nd the obligation here falls into any exception to Section 1-306. C onsequently, Westlake and Mr. Lusk are jointly and severally liable for the Kingsbury Judgment. But Oklahoma law also provi des in Section 1-307 that: (b) An action may be brought against the partnership and, to the extent not inconsistent with [the exceptions in Section 1-306], any or all of the partners in the same acti on or in separate actions. (c) A judgment against a partnershi p is not by itself a judgment against a partner. A judgment against a part nership may not be satisfied from a partner’s assets unless there is also a judgment against the partner. (d) A judgment creditor of a part ner may not levy execution against the assets of the partner to satisfy a judgment based on a claim against the partnership unless the partner is personally liable for the claim under [Section 1-306] and . . . (1) a judgment based on the same claim has been obtained against the partnership and a writ of ex ecution on the judgment has been returned unsatisfied in wh ole or in part [or] . . . (4) a court grants permission to the judgment creditor to levy execution against the assets of a partner based on a finding that partnership assets subject to ex ecution are clearly insufficient to satisfy the judgment. 54 Okla. Stat. § 1-307(b)–(d). Oklahoma’s statute of limi tations is five years for suits on a debt and two years for personal in jury actions. 12 Okla. Stat. § 95(A)(3) & (12). As an initial matter, Oklahoma courts have only passingly addressed the foregoing statutes. And the thr ee questions before us appear to be of first impression

3 The only exceptions to this rule rela te to partner admissi on dates and limited liability partnerships, neither of which is relevant here.6 in this circuit and in Oklahoma: first, which limitations period would the Oklahoma courts apply to this action; second, wh en would the Oklahoma courts deem that period to have commenced; and third, does Oklahoma partnership law compel a contrary conclusion? With respect to the first question, we agree with the distri ct court that the substance of Mr. Kingsbury’s complaint is that of a judgment creditor seeking to satisfy a debt. There are no “allegations of individua l wrongdoing,” nor does the complaint “identify the individual conduct of either [partner] as a basis for personal liability.” See Evanston Ins. Co. v. Di llard Dep’t Stores, Inc ., 602 F.3d 610, 617 (5th Cir. 2010) (construing the substantia lly similar Texas Revi sed Partnership Act (TRPA)). 4 Instead, it merely “seeks to im pose liability on [the partners] for partnership debt by operati on” of Oklahoma statute. See id . We are therefore confident the Oklahoma cour ts would apply the five-year statute of limitations governing a suit for debt. See 12 Okla. Stat. § 95(A)(12). Second, the Oklahoma statutes make clear that a “judgment against a partnership is not by itself a judgment against a partner.” 54 Okla. Stat. § 1-307(c). Accordingly, “[b]ecause a cr editor’s rights against a pa rtner do not arise when the partnership incurs an obliga tion,” we conclude that Oklahoma courts would “define accrual as occurring when those rights arise.” Am. Star Energy & Minerals Corp. v.

4 The TRPA and Revised Uniform Partne rship Act are substantially similar. Compare Tex. Bus. Orgs. Code §§ 152.304–06, with 54 Okla. Stat. §§ 1-306–07 (using almost identical language). Thus , we think Oklahoma courts would find authority applying the TRPA more persua sive than the other authorities relied upon by Westlake and Lusk.7 Stowers , 457 S.W.3d 427, 432 (Tex. 2015) (c onstruing the substantially similar TRPA). Armed with these conclusions, we easily determine that Mr. Kingsbury’s claim against the partners did not accrue until—at th e earliest—the state court entered the Kingsbury Judgment. Westlake insists, however, that both the Oklahoma statutes and non-Oklahoma case law compel a different conclusion. We are not convinced. To begin, Westlake contends that Secti on 1-307(b) anticipates that a party who seeks to hold the partners liable for the partnership’ s negligence will name those partners in the negligence ac tion itself. But this argum ent ignores the permissive nature of Section 1-307(b), which affords w ould-be plaintiffs the option of suing “in the same action or in separate actions.” 54 Okla. Stat. § 1-307(b). And, “considering its enforcement scheme, this rule suggests the Legislat ure considers the collection action to be separate fro m the underlying litigation.” Am. Star , 457 S.W.3d at 432. Here, Mr. Kingsbury acted c onsistently with Section 1- 307(b) by first obtaining the Kingsbury Judgment against the Partnershi p and then bringing a separate action against the partners to coll ect when that judgment could not be satisfied from the Partnership’s assets. Interp reting partnership laws almost identical to Oklahoma’s, the Texas Supreme Court explained, “[i]n allowing separate suits, the Legislature must have contemplated that at least some subsequent act ions against partners would be brought outside of the or iginal limitations period.” Id . Here, we agree with the district court that the acti on against the partners to co llect on the Kingsbury Judgment8 did not have to be brought within the st atute of limitations governing the original negligence action. Next, Westlake argues th at the “based on the sa me claim” language in Section 1-307(d)(1) prevents Mr. Kingsbury from seeking payment from the partners.
See 54 Okla. Stat. § 1-307(d)(1) (providing that a judgment creditor of a partner may not execute against the assets of a part ner to satisfy a judgment based on a claim against the partnership unless “(1) a j udgment based on the same claim has been obtained against the partners hip and a writ of execution on the judgment has been returned unsatisfied in whole or in part . . . .”). But we find nothing in that provision to prevent Mr. Kingsbury from bringing the pr esent action. Section 1-307(d) merely mandates that before the credit or attempts to satisfy an obligation of the partnership against the assets of the partners, he must first obt ain a judgment against the partnership “ based on the same claim,” and unsuccessf ully attempt to satisfy that judgment against partnership assets. By its plain language, Sect ion 1-307(d)(1) does not dictate that the action ag ainst the partners be for the exact same claim ; all that is required is that it be “ based on the same claim.” See 54 Okla. Stat. § 1-307(d)(1) (emphasis added). We agree with the distri ct court that the ac tion against Westlake to collect the Kingsbury Judgment is “bas ed on” the negligence claim against the Partnership which resulte d in that judgment. In summary, Section 1-306 leaves no do ubt that Westlake is liable for the debts of the Partnership and by this acti on, Mr. Kingsbury seek s a judgment against Westlake for that joint and several obligation. See id. § 1-306. With that judgment9 and proof that a writ of execution on the Kingsbury Judgment agai nst the Partnership “has been returned unsatisfied in whole or in part,” Mr. Kingsbury will be entitled to collect against Westlake’s assets. See id . § 1-307(d); State ex rel. Hampton v. Oakes , 281 P.2d 749, 753 (Okla. 1955) (“[A]ll the various provisions of legislative enactments upon the particular subject should be c onstrued together and given effect as a whole.”).
B The Oklahoma courts are also unlikely to be persuaded by We stlake’s citations to what it calls the “majority rule.” First, Westlake’s chief case from the Ninth Circuit is not analogous here. In Valley National Bank of Arizona v. A.E. Rouse &
Co ., 121 F.3d 1332 (9th Cir. 1997), the court not ed that under Arizona law, service of a complaint on one partner “shall authori ze a judgment against the partnership and against the partner actually served .” Id . at 1336 (emphasis a dded). Based on that statute, the court held that , “in an action against a pa rtnership, judgment is not authorized against unserved partners.” Id . This provision, in addition to being dissimilar to the relevant Ok lahoma statutes, does not speak to the issue of when the statute of limitations to co llect a partnership debt agai nst a partner commences. And to the extent it requires serv ice on a partner against whom a judgment is sought, it is no more restrictive than th e Oklahoma statute. As di scussed, Section 1-307(d) requires a judgment against th e partner before a partners hip debt can be satisfied against the partner’s assets, wh ich, in turn, would require valid service on that partner in the debt-collection action. Accordingly, nothing in Valley National gives us cause10 to question our conclusion that the Oklahoma courts would hold that the limitations period for a debt-collection action against a partner for a partnership debt does not commence until judgment is obtaine d against the partnership.
Sunseri v. Proctor , 487 F. Supp. 2d 905 (E.D. Mich. 2007), aff’d 286 F. App’x 930 (6th Cir. 2008) (unpublishe d), is likewise inapposite. Th e district court there did not interpret any state-law provision similar to the Oklahoma statutes at issue in this case. And it distinguished the result there from a New York decision holding to the contrary that the statute began to run only after judgment was entered against the partnership, stating: “In cont rast to this case, however, Whitley involved a limited partnership, which unlike this case, required the plaintiffs to pr ove that the limited partnership’s assets were e xhausted before they could proceed against the limited partners.” Id. at 908 (citing Whitley v. Klauber , 417 N.Y.S.2d 959 (N.Y. App. Div. 1979)). Here, as in Whitley , Oklahoma law requires an unsuccessful attempt to satisfy the judgment against the Partnershi p before a judgment against the partners for a claim against the Partnership can be satisfied against the partners’ assets. 54 Okla. Stat. § 1-307(d). Westlake’s remaining two state-cour t citations are also inapposite. In Gutrich v. Cogswell & Wehrle , 961 P.2d 1115 (Colo. 1998) (en banc), the Colorado Supreme Court interpreted an exception to a statute that excludes the separate property of a partner not personally served from the re ach of a judgment entered against the partnership in a suit to en force a substantive right. Id . at 1118–19. The court in Gutrich merely interpreted a state rule of civil procedure allowing execution of a11 judgment against the partnership against th e property of an unserved partner when the plaintiff was unable to as certain partner identities, c ould not effectuate personal jurisdiction, or otherwise encountered an impediment to naming and serving the partners. Id . at 1119–20. Not only is the decisi on unique to the laws of Colorado, it supports collection of the Kingsbury Judgm ent against Westlake . As the Colorado court in Gutrich explained, the rule “i s an appropriate mechan ism in cases where the plaintiff, usually due to the misbehavior of the person against whom such relief is directed, has been unable to collect an obligation through normal process.” Id . at 1119. Here, Westlake and Mr. Lusk sold the Partnership’s only asset and disbursed the proceeds while the Kingsbury estate’s wrongful death action was pending. Such “misbehavior” might place the pa rtner’s assets here square ly within the exception to Colorado’s rule. And signifi cantly, the plaintiff in Gutrich did not challenge the district court’s denial of th e motion to add the individual partners as parties to the action after the statute had run. Id. at 1119 n.2. Finally, in Hoelting Enterprises v. Nelson , 929 P.2d 183 (Kan. App. 1996), a the partnership defaulted on a non-recour se mortgage secured by an apartment complex and the rents and pr ofits accrued therefrom. Af ter foreclosing on the real property, the plaintiff sued the general partne rs of the partnership to recover the rents and profits accumulated between the time of de fault and the foreclosure. The district court dismissed the action based on the three-ye ar statute of limita tions applicable to actions “based upon liability created by a statute.” Id. at 231. The Kansas Court of Appeals reversed, holding that the action wa s properly characterized as an action to12 enforce the written contract, which pledge d rents and profits as security for the mortgage. Id. at 187. As such, the action was time ly because it wa s brought within the five-year contract statute of limitations. Id . at 187. Unlike the present action, the suit in Hoelting was not to collect on a judgment ente red against the partnership; it was to recover the specific security pledge d as collateral for the mortgage loan. Accordingly, the point at which the claim accrued here is fundamentally different than in Hoelting ; it is the time the obligation aros e by entry of judgment against the Partnership.
III We conclude that Mr. Kingsbury’s suit as a judgment creditor is timely under the appropriate five-year limitations peri od because the claim did not accrue until the state-court judgment against th e Partnership was entered. We therefore AFFIRM the judgment of the district court.

Entered for the Court
Carolyn B. McHugh Circuit Judge