UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ENDRE GLENN, Plaintiff-Appellant, and MARGARET GLENN, Plaintiff,

v. DONNA KANE; NRT, LLC, d/b/a Coldwell Banker Residential Brokerage, Defendants-Appellees. No. 12-4013 (D.C. No. 2:10-CV-00726-CW) (D. Utah)

ORDER AND JUDGMENT *

Before GORSUCH , Circuit Judge, BRORBY , Senior Circuit Judge, and HOLMES , Circuit Judge.

Plaintiff Endre Glenn a ppeals from the district court’s grant of summary judgment in favor of defendants Donna Ka ne and NRT, LLC, d/b/a Coldwell Banker

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 21, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Residential Brokerage (“Coldwell Banker”). Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM. Background Mr. Glenn hired Coldwell Banker and its agent, Ms. Kane, to list and sell a home he and his mother owned in Utah. Robin and Judith Reese (“the Buyers”) submitted an offer to purchas e the home. The offer was pr esented in the form of a state-approved Real Estate Purchase C ontract (“REPC”). The REPC contained a section that allowed a buyer to cancel based on four specific categor ies of evaluations and inspections, 8(a)-(d), as well as a fifth cate gory, 8(e), where the Buyers could include their own evaluations and inspectio ns. In 8(e) the B uyers inserted the language “Any other deemed necessary by buyers.” R., Doc. 15-2 at 4. Mr. Glenn initialed each page of the REPC, including the page that contained Section 8(e), and he admitted that he wa s aware that the Buye rs could cancel the contract based upon any test or evaluation deemed nece ssary by the Buyers. He agreed to the terms of the contract on D ecember 20, 2007, and the Buyers had until January 5, 2008, to cancel the contract ba sed upon the evaluations and inspections. As one of the evaluations under 8(e), the B uyers elected to have an appraisal done on the property. The home appraised for less than the purchase pr ice offered in the REPC. The Buyers attempted to negotia te a lower purchase price based upon the appraisal and Mr. Glenn refused. On D ecember 29, 2007, the Buyers cancelled the

contract.- 3 - Mr. Glenn contested the Buyers’ right to cancel and filed suit against the Buyers in state court seeking specific perform ance of the contract. He alleged that the language “[a]ny other deem ed necessary” did not contem plate an appraisal as one of the tests or evaluations. Mr. Glenn was unsuccessful in the trial court and in his appeal. The Utah Supreme Court held th at the contract langua ge was broad enough to include an appraisal as an evaluation. Mr. Glenn then filed the underlying action in federal court, bringing claims for breach of contract, breach of the implied cove nant of good faith and fair dealing, and breach of fiduciary duty. Defendants move d for summary judgment and the district court granted the motion. Mr. Glenn now appeals. 1
Discussion Defendants argue that Mr. Glenn’s appeal raises only new issues that were not presented to or decided on by the district court and therefore they should not be considered by this court. We agree. Mr. Glenn first asserts that defendants failed to provide in itial disclosures and cooperate in discovery proceedings and that the district court erred in not granting additional time for discovery. He further asserts that defenda nts’ misconduct and non-disclosure of the facts deprived him of the opportunity to present ev idence to the district court against defenda nts’ motion for summary judg ment. The record does not

1 In the district court, Mr. Glenn was represented by co unsel. He is proceeding pro se on appeal.- 4 - show that Mr. Glenn raised a ny alleged discovery violations with the district court or asked for additional time to complete discovery. We ther efore decline to consider these issues for the fi rst time on appeal. See Tele-Commc’ns, Inc. v. Comm’r of Internal Revenue , 104 F.3d 1229, 1232-33 (10th Cir. 1997). Mr. Glenn next argues that the dist rict court erred in granting summary judgment because Ms. Kane, as his real estate broker, had a fiducia ry duty to disclose material facts to him as th e seller, and she failed to do so. He contends that the language that was added to the tests a nd evaluations secti on—“Any other deemed necessary by the buyers”—“is a ma terial fact the agent failed to disclose.” Aplt. Br. at 8 (emphasis omitted). To support his argument, he explains that the REPC was revised in 2008 to “add[] new language to the contract agreemen t to ensure the Sell er received proper notice when [the] buyer canceled under the appraisal condition.” Id . at 9. He notes that the language the Buye rs added to 8(e) “allowed them to conduct their own appraisal without providing the ‘Notice of Appraised Value’ to the Seller.” Id

. (emphasis omitted). He cont ends that “[t]his is a kn own problem with the REPC (effective 2003) that the De partment of Real Estate resolved” and “[t]he major revision corrected several known limitations with the REPC (effective 2003).” Id

. He then refers to a Utah Division of Real Estate Newsletter from July 2008, which he attached as an exhibit to hi s brief, asserting that the ne wsletter “cited ambiguity in the REPC” that “required clarification or otherwise had an unde sired or unintended- 5 - consequence.” Id . He concludes this paragraph by stating that “[ a]s licensed Real Estate agents in the State of Utah, Co ldwell Banker had a duty and obligation to disclose these limitati ons and material facts about the REPC that would affect their client’s interest.” Id

. Whether this argument is a new issue raised for the firs t time on appeal presents a somewhat closer question. Mr . Glenn alleged in hi s complaint that the defendants breached their fiduciary duties by failing to notify him “that the Buyers had inserted non-standard language in th e REPC allowing them to cancel the REPC based on the Buyers’ disapproval of any tests or evaluations.” R., Doc. 1 at 9. He argued in his opposition to summary judgment that defendants had a fiduciary duty to notify him “of anything they knew woul d make the REPC unenforceable.” Id ., Doc. 17 at 17. He alleged that the defe ndants knew that the tests or evaluations contemplated by Section 8 could include an appraisal and that they knew that an appraisal was likely to come in low in the current mark et conditions. He further asserted that “[a]lthough Defendants knew th e appraisal would likely come in low, and knew that the buyers c ould cancel the contract if the appraisal was not satisfactory, they represented to [him] that it was a clean o ffer and would close quickly.” Id . But in his complaint and hi s opposition to summary judgment, Mr. Glenn never mentioned th e 2008 revisions to the REPC nor did he include the July 2008 Utah Division of R eal Estate Newsletter that he has now attached to his appellate brief.- 6 - In Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 721 (10th Cir. 1993), we considered “what kind of specifi city is required in the tria l court in order to preserve an issue for appeal.” We explained that “there are many ways in which a case may present . . . issues not passed upon below. One is a bald-faced new issue. Another is a situation where a litigant changes to a new theory on appeal that falls under the same general category as an argument pr esented [to the district court].” Id . at 722 (citation and internal quotation marks omitt ed). We ultimately concluded that although the defendant made refe rence to certain general pr inciples before the trial court, it never presented the specific arguments it was now raising on appeal. Id . at 723. We therefore determined that the defendant’s arguments fell “under the rule that a party may not try the case on one theory and appeal on another.” Id . We conclude that the same an alysis applies here. “In order to preserve the integrity of th e appellate structure, we should not be considered a ‘second-shot’ forum, a forum wh ere secondary, back-up theories may be mounted for the first time.” Tele-Commc’ns , Inc., 104 F.3d at 1233. “[A]n issue must be presented to, considered [and] de cided by the trial cour t before it can be raised on appeal.” Id . (internal quotation marks omit ted). Although Mr. Glenn made a related argument to the district court, he never made the sp ecific argument to the district court that he no w makes on appeal—that revisi ons to the REPC in 2008 demonstrate that there were problems with the 2003 version of the REPC; that these were known problems and limitations ; and, as licensed real es tate agents in Utah, the- 7 - defendants had a duty to disclose these kno wn limitations and material facts about the REPC to him as the seller. In add ition, the July 2008 Utah Division of Real Estate Newsletter referenced in and attached to Mr. Gle nn’s appellate brief is a new piece of evidence that was not pr esented to the district cour t and is not a part of the district court record. Our review on summary judgment “is confined to an examination of materials before the lower court at the time the ruling was made.” Lantec, Inc., v. Novell, Inc., 306 F.3d 1003, 1022 (10th Cir. 2002) (internal quotation marks omitted). We decline to consider Mr. Glenn’s new arguments and non-record evidence presented for the first time on appeal. Acco rdingly, we AFFIRM the judgment of the district court.

Entered for the Court
Wade Brorby Senior Circuit Judge