* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 26 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. LEVY and JOHN M. LEVY, Plaintiffs - Appellees, No. 98-1360

v. (D.C. No. 91-B-1460) EDWARD M. LEVITT, (D. Colo.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR , McKAY , and LUCERO , Circuit Judges.

I. Background In this diversity action under Colorado law, Plaint iffs sue Defendant for contribution pursuant to their partnership and join t venture agreements. In 1983, the parties formed Tri L Partners (Tri L), an equal ly-owned partnership, and Tejon-Kiowa Associates (Tejon-Kiowa), a joint ventu re owned by Tri L and the parties individually. Tejon-Kiowa was formed to ac quire and develop certain real-2-

estate—the Giddings Building—in Colorado Springs, C olorado. In order to fund the purchase of the building, Plaintiffs and Defend ant obtained two separate loans for which they were liable individually, as joint v enturers of Tejon-Kiowa, and as general partners of Tri L. The partnership and joint venture soon began losing money. In July 1987, Defendant stopped making payments to fund the ongoi ng deficiencies of the joint venture and partnership. However, Plaintiffs conti nued to make payments on Defendant’s behalf, as allowed under the partnershi p and joint venture agreements. These payments were initially classifi ed as capital payments made by Defendant with offsetting loans from Plaintiffs to Defendant; later they were reclassified as loans from Plaintiffs to Defendant. Despite his nonpayment, Defendant continued to serv e for several months as managing partner of the partnership. In additio n, Defendant made payments on a junior debt against the Giddings Building, receiv ed monthly reports on the partnership and joint venture, and claimed partners hip deductions on his federal income tax returns for 1987-89. Defendant states t hat he told Plaintiffs “It’s over” on June 9, 1988; nevertheless, he continued t o indicate a willingness to pay the sums he owed and even stated an interest in pur chasing Plaintiffs’ shares in the partnership. On January 4, 1990, Tejon-Kiowa sold the Giddings B uilding and gave the-3-

proceeds to Tejon-Kiowa’s creditors. Plaintiffs th en personally paid the balance of Tejon-Kiowa’s debts, including Defendant’s share of the loss. Defendant endorsed a Consent and Ratification approving the G iddings Building Deed and was released from liability to the banks on the two notes. Defendant specifically referred to himself in the Consent as a partner of Tri L and joint venturer of Tejon-Kiowa. Plaintiffs and Defendant also discuss ed signing a mutual release of all parties from the obligations incurred under pay ment of the bank notes in exchange for Defendant’s endorsement of the Consentand Ratification; however, Defendant found Plaintiffs’ release draft unsatisfa ctory and refused to sign it. Plaintiffs, by letter of October 24, 1990, demanded that Defendant pay the money he owed or they would dissolve the partnershi p and joint venture. When they received no substantive response, Plaintiffs d issolved Tejon-Kiowa and terminated Tri L on December 31, 1990, pursuant to the provisions of their respective agreements. On August 22, 1991, Plainti ffs filed suit against Defendant for amounts owed under the partnership an d joint venture agreements. Nearly a decade of litigation followed, during whic h the parties filed nine separate motions for summary judgment and Defendantasserted more than twenty different defenses to liability. The district cour t repeatedly attempted to resolve or simplify the issues presented. On November 5, 1 993, the court struck the parties’ previous briefs and required both parties to submit simultaneous briefs in-4-

support of their existing summary judgment motions. Important to this appeal, Defendant moved for summary judgment as to the date in which the partnership and joint venture were dissolved and his release fr om liability to Plaintiffs. Plaintiffs moved for summary judgment on their clai ms for breach of contract and capital contribution and against all of Defendant’s defenses, including the dissolution date and release. On January 19, 1995, the court granted Plaintiffs’ motion for summary judgment with respect to their b reach of contract and capital contribution claims and denied summary judgment forDefendant on his numerous defenses. On August 12, 1998, the court entered ju dgment against Defendant for Plaintiffs’ attorney fees and costs. On appeal, Defendant asserts that the district court erred in granting summary judgment on Plaintiffs’ breach of contract, dissolution date, and contribution claims. In addition, Defendant allege s violations of due process and requests that we set aside Plaintiffs’ award of att orney fees. We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f 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.” F ED
. R. C IV
. P. 56(c). When applying this-5-

standard, we view the evidence and draw inferences therefrom in the light most favorable to the nonmoving party. See id.

II. Partnership Accounting, Dissolution Defendant first claims that the district court erre d in entering summary judgment in favor of Plaintiffs on their breach of contract claim. Defendant contends that Plaintiffs’ action must be dismissed because Plaintiffs failed to include a specific claim for a partnership accounting, as required by Boner v. L.C. Fulenwider, Inc. , 513 P.2d 730, 732 (Colo. Ct. App. 1973). The Boner court declared the general rule that individual members o f a partnership “cannot maintain an action for damages against another memb er unless there has been an accounting.” Id. However, Colorado courts have enumerated several exceptions to the Boner rule. The Colorado Supreme Court has held that “w here a partnership has been dissolved, or where its busine ss has been concluded, or where a partnership exists for a single venture or special purpose . . . the rule does not apply.” Morris v. Redak , 234 P.2d 908, 914 (Colo. 1951). In the instant case, although the parties dispute t he exact date of dissolution, both concur that the partnership was d issolved before Plaintiffs brought suit. In addition, prior to this litigatio n all partnership business had concluded with the dissolution and sale of the part nership’s property. Finally, the partnership and joint venture existed for only one purpose: to manage the1 We further note that some years after this suit was instigated, Colorado

adopted § 405 of the Uniform Partnership Act, which allows a partner to maintain actions against other partners without an accountin g to enforce the partner’s rights under the partnership agreement. See C OLO
. REV
. S TAT . § 7-64-405 (2000).

2The Colorado Court of Appeals has recently ruled t hat a two-year catch-all statute of limitations applied to a withd rawing partner’s action for partnership accounting because the amount due from accounting was not capable of ascertainment by reference to partnership agreem ent or by simple computation derived from agreement. See Tafoya v. Perkins , 932 P.2d 836, 838 (Colo. Ct. App. 1996). The district court had held that the applicable time frame for Plaintiffs to bring suit in this action under Colorado law was six years. See Order of May 27, 1993 (App. at 51-57).

3 As Defendant points out, the court erred in making this finding. It should have determined that such losses were claimed in 19 87, 1988, and 1989. Since (continued...) -6- investment in a single piece of real property. Thu s, by any of these three exceptions, Plaintiffs were not required to make a specific claim for accounting under Colorado law. 1 Defendant next claims that a genuine issue of mater ial fact existed as to the exact date of dissolution of the Tri L partnership. He asserts that his declaration to the Plaintiffs that “It’s over” acted to dissolv e the partnership on June 9, 1988, as opposed to December 31, 1990, the date in which Plaintiffs formally acted to dissolve both the joint venture and the partnership . The earlier dissolution date was essential to Defendant’s statute of limitations defense. 2 The district court found that Defendant claimed par tnership losses on his 1988, 1989, and 1990 tax returns. 3 In addition, on February 9, 1990, Defendant3 (...continued)

Defendant endorsed the Consent and Ratification as a partner in 1990, the error was harmless. -7- signed a “Consent and Ratification” regarding the s ale of the Giddings Building in which he declared four separate times that he wa s a partner of Tri L and a joint venturer of Tejon-Kiowa. The district court cited In re S & D Foods, Inc. , 144 B.R. 121, 159 (Bankr. D. Colo. 1992), for the propo sition that a party is estopped from denying the existence of a partnership where h e has held himself out as a partner by executing documents in behalf of the par tnership. The court further noted that under Colorado law, a party holds himsel f out as a partner if he claims partnership losses on his tax returns. See Roberts v. Roberts , 155 P.2d 155, 157 (Colo. 1945). Thus, the court held, Defendant was estopped from arguing that dissolution occurred on June 9, 1988. On appeal, Defendant contends that Roberts is inapposite because, in contrast to the defendant in Roberts , he does not deny the existence of a partnership, only that his status as a partner was changed through dissolution. However, Defendant asserts a distinction without a meaningful difference. While Roberts dealt specifically with an individual denying the existence of a partnership, its principle is equally applicable to individuals denying their status in an existing partnership. The essential rule of Roberts is that an individual cannot acquire the benefits of partnership without simultaneously assuming its-8-

corresponding liabilities. Colorado courts have af firmed this rule since at least 1892: “It is well settled that where a person, wit h his knowledge and consent, has been held out to the person having a claim or to th ird parties as a partner, liability as a partner is fastened upon him.” Butler v. Hinckley , 30 P. 250, 252 (Colo. 1892). Defendant cannot deny his status as a partn er of Tri L for a period in which he induced the Internal Revenue Service and t wo banks to believe that he had the right, as a partner, to receive tax refunds and manage partnership property. This inducement of third parties to chan ge position detrimentally in reasonable reliance on the inducing party’s actions is the very purpose for estoppel. Cont’l W. Ins. Co. v. Jim's Hardwood Floor Co., Inc. , 12 P.3d 824, 829 (Colo. Ct. App. 2000). Since Defendant was estopped from denying his statu s as a partner after June 9, 1988, and presented no other evidence refut ing Plaintiffs’ claim that dissolution occurred on December 31, 1990, the court held that December 31, 1990, was the proper dissolution date. We agree.
III. Release and Contribution Defendant next claims that the court erred in grant ing summary judgment against him on his release from liability defense. Defendant maintains that in exchange for ratification of the Giddings Building deed, he was released from liability on the two bank notes as to both the bank s and Plaintiffs. Plaintiffs point-9-

out that Defendant did not also sign the mutual rel ease on the indebtedness that they proffered to him. Nevertheless, Defendant arg ues that his negotiations with Plaintiffs over a mutual release in return for the Giddings ratification constituted an implied release of his obligations on the notes to both the banks and to Plaintiffs. However, Defendant fails to substantiate his inventive argument. Defendant had full opportunity to sign Plaintiffs’ proposed release and refused to do so. In addition, as the district court held, a release of his indebtedness to the banks did not relieve him of liability to his partn ers under the partnership and joint venture agreements. Viewing the evidence in the light most favorable to Defendant, there is no triable issue concerning Def endant’s release claim. Defendant next contests the district court’s grant of summary judgment on Plaintiffs’ contribution claim. The court found th at Defendant admitted failing to make capital contribution payments in breach of the partnership and joint venture agreements. In addition, Defendant did not dispute that, pursuant to the terms of the joint venture agreement, Plaintiffs made capita l contributions on his behalf until dissolution and termination of the partnershi p and joint venture. Nevertheless, Defendant argues that Plaintiffs did not follow the contribution procedures described in the partnership and joint v enture agreements, which allow Plaintiffs to pay Defendant’s capital contributions and then buy out his interest. Defendant claims that he should have been bought ou t under these procedures-10-

instead of held liable for his breach. However, as the district court noted, the joint venture agreement also states that “nothing i n the agreement is intended to limit the rights ‘at law or by statute or otherwise ’ of any party aggrieved by the agreement’s breach.” App. at 243. The court also observed that under Colorado law, a partner “shall contribute toward the losses whether of capital or otherwise sustained by the partnership according to his share in the profits.” C OLO
. REV
. S TAT . § 7-60-118(1)(a). The court then held that secti on 118(1)(a) conferred upon Plaintiffs the right to collect the capital co ntributions that Defendant failed to provide. Defendant presented no genuine issue o f material fact for the court to decide. In addition, Defendant identifies no error in the court’s reasoning under Colorado law, nor does he present evidence indicati ng a mandated hierarchy of Plaintiffs’ remedies for his breach. Thus, the cou rt did not err in granting Plaintiffs’ motion for summary judgment on their co ntribution claim.
IV. Due Process Defendant next claims that the district court denie d him due process when it ordered the parties to submit simultaneous brief s consolidating all outstanding motions for summary judgment. Defendant contends t hat the simultaneous briefing procedure prevented him from presenting re buttal evidence in accordance with Fed. R. Civ. P. 56, since he had no opportunity to respond to Plaintiff’s brief after its submission. However, Defendant misconstr ues the purpose and use of4 D.C. C OLO
. L. R. 7.1(H) states: “[B]riefs and Motions shall be c oncise. A

verbose, redundant, ungrammatical, or unintelligibl e brief or motion may be stricken or returned for revision, and its filing m ay be grounds for imposing sanctions. Limitations may be imposed on the lengt h of any brief or motion.” -11- the simultaneous briefs. The parties had submitted nine separate briefs detailing various motions for summary judgment, which were fo llowed by the opposing parties’ respective responses. This was an unwieldy load. The district court struck the nine summary judgment briefs and ordered each of the parties to submit a single consolidated brief that organized and cond ensed the arguments that each had already made. The court did not deny Defendant the right to respond to Plaintiffs’ arguments; Defendant had already done s o, followed by which both parties were required to consolidate their previous briefs. The court’s act was a common and appropriate attempt to manage its caselo ad in accordance with local rules. 4 Defendant was not prejudiced by this unremarkable consolidated briefing procedure. Defendant also alleges that he was denied due proce ss because the initial district court judge in charge of this action “had a personal bias or prejudice against both parties within the meaning of 28 U.S.C . § 455(b)(1) such that he should have disqualified himself years ago.” (Br. Aplt. at 43). Defendant “constructively infer[s]” this bias by pointing outthe number of times that trial dates were rescheduled, the court’s order for simul taneous briefing, its rejection-12-

of Defendant’s arguments, and even the judge’s reti rement before this case had concluded. However, the Supreme Court, in discussing § 455(b)( 1), has stated that “judicial rulings alone almost never constitute a v alid basis for a bias or partiality motion.” Liteky v. United States , 510 U.S. 540, 555 (1994). In addition, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proce edings, or of prior proceedings, do not constitute a basis for a bias o r partiality motion unless they display a deep-seated favoritism or ant agonism that would make fair judgment impossible. . . . Not esta blishing bias or partiality . . . are expressions of impatience, dis satisfaction, annoyance, and even anger, that are within the boun ds of what imperfect men and women, even after having been con firmed as federal judges, sometimes display. Id. at 555-56; see also United States v. Young , 45 F.3d 1405, 1415 (10th Cir.), cert. denied , 515 U.S. 1169 (1995). At most, Defendant has shown that the district judg e was impatient with the parties’ numerous briefs and unheeding to Defendant ’s pleas for exoneration. This did not rise to the level of judicial bias or prejudice under § 455(b). Even if it did, the remedy for judicial prejudice is a moti on for recusal that “must be timely filed,” and a party must act promptly in fil ing its motion once it knows of the facts on which it relies. Willner v. Univ. of Kan. , 848 F.2d 1023, 1028-29 (10th Cir. 1988), cert. denied , 488 U.S. 1031 (1989). Defendant’s belated claim of judicial bias stemming from over nine years of j udicial administration is-13-

certainly not timely. V. Attorney Fees Lastly, Defendant argues that the award of attorney fees to Plaintiffs should be set aside. Defendant’s one-sentence justificati on directs this court to peruse three of his previous filings and alleges that Plai ntiffs did not prove their entitlement to attorney fees. However, Defendant f ails to provide this court with the documents he references. “It is not this court ’s burden to hunt down the pertinent materials. Rather, it is [Defendant’s] r esponsibility as the appellant to provide us with a proper record on appeal.” Rios v. Bigler , 67 F.3d 1543, 1553 (10th Cir. 1995). We thus decline to review Defend ant’s challenge to the district court’s award of attorney fees. See Knowlton v. Teltrust Phones, Inc. , 189 F.3d 1177, 1182 (10th Cir. 1999) (failure to provide ade quate record requires court to disregard challenges to district court’s ruling on sanctions). For the foregoing reasons, the judgment of the dist rict court is
AFFIRMED

. Entered for the Court:

Monroe G. McKay Circuit Judge