* This order and judgment is not binding precedent, e xcept under the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

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

.

UNITED STATES COURT OF APPEALS Filed 1/7/97 FOR THE TENTH CIRCUIT

COMPUTRONICS CONSULTANTS, INC., Plaintiff-CounterDefendant-Appellant,

v. NeXT COMPUTER, INC.,

Defendant-CounterClaimant-Appellee. No. 96-5020 (D.C. No. CV-95-50) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.1 NeXT filed a motion to dismiss this appeal, arguing that because CCI had

filed its notice of appeal before the district court had entered a final judgment, this court lacked jurisdiction to hear the appeal. The order forming the basis of this appeal was filed on December 8, 1995, and was entered on the docket on December 11, 1995. That order, however, did not es tablish the amount NeXT was entitled to recover from CCI on NeXT’s counterc laims. Further, no separate Rule 58 judgment had been filed at the time CCI fil ed its notice of appeal on January 10, 1996. NeXT argues that CCI’s notice of appeal was therefore premature and ineffective. This is incorrect. We agree that the December 8 order was not a final judgment and that CCI’s notice of appeal was technically premature. However, that premature notice matured once the district court entered its Rule 58 judgment on February 7, 1996, thus vesting this court with jurisdiction. S ee Kelley v. Michaels , 59 F.3d 1055, 1057 (10th Cir. 1995)(holding that premature appeal matured upon entry of Rule 54(b) certification and citing Fed. R. App. P. 4(a)(2): “A notice of appeal filed after the court announces a decision or orderbut before the entry of the judgment or order is treated as filed on the date o f and after the entry.”). 2-- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Appellant, Computronics Consultants, Inc. (CCI), ap peals the district court’s grant of summary judgment to defendant NeXT Computer, Inc., (NeXT), on CCI’s various tort claims and on NeXT’s counterc laims. CCI also appeals the district court’s refusal to grant a continuance in this case. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm. 1

Summary judgment is appropriate where there is no g enuine issue as to any material fact, and the moving party is entitled to3--

judgment as a matter of law. In Celotex [Corp. v. Catrett , 477 U.S. 317, 322 (1986),] the Supreme Court stated: [t]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a partywho fails to make a showing sufficient to establish the existenc e of an element essential to that party's case, and on which that p arty will bear the burden of proof at trial. A party opposing a properly supported motion for s ummary judgment must offer evidence, in admissible form, o f specific facts, sufficient to raise a genuine issue of material fac t. [T]he mere existence of some alleged factual dispute between the parties will n ot defeat an otherwise properly supported motion for s ummary judgment.[] Factual disputes that are irrelevant o r unnecessary will not be counted. Summary judgment is only appropriate if there is [n ot] sufficient evidence favoring the nonmoving party f or a jury to return a verdict for that party. The Supreme Court stated : [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be eviden ce on which the jury could reasonably find for the plaintiff. Thu s, to defeat a summary judgment motion, the nonmovant must do more than simply show that there is some metaphysical doubt as to th e material facts. [T]here is no issue for trial unless there is suffi cient evidence favoring the nonmoving party for a jury to return averdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[] In essence, the inquiry for the Court is whether th e evidence presents a sufficient disagreement to require submi ssion to a jury or whether it is so one-sided that one party must pre vail as a matter of law. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Biester v. Midwest Health Servs., Inc. , 77 F.3d 1264, 1265-66 (10th Cir. 1996)(quotations and citations omitted). We reviewthe summary judgment determination of a district court de novo. Id. at 1266. Our review of the district4--

court’s refusal to grant a continuance is for abuse of discretion. See Committee for the First Amendment v. Campbell , 962 F.2d 1517, 1522 (10th Cir. 1992). The parties are familiar with the facts of this cas e, and we will not repeat them here. We view this dispute, as did the distri ct court, as one governed entirely by the written dealer agreement executed b y two sophisticated parties in an arms-length relationship. CCI’s attempt to tran sform the legal reality here from one controlled by the terms of an enforceable contract to one somehow now ruled by the precepts of tort law is unavailing. Specifically, we agree with the district court thatthere is no evidence here of any fraud or other misrepresentation, and there is no legal basis upon which to conclude that some sort of fiduciary relationship a rose between the parties. Similarly, because CCI did not come forward with any defense to its failure to pay for equipment supplied by NeXT, the district co urt was also correct to grant summary judgment to NeXT on its counterclaims. Finally, the district court did not abuse its discr etion in refusing to grant CCI’s motion for continuance. CCI’s conclusory statements regarding its need for more discovery fail to satisfy the standard of Fed. R. Civ. P. 56(f) required to support such a motion. See Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1554 (10th Cir. 1993)(requiring a specif ic statement regarding how5--

additional time would enable the nonmovant to resis t summary judgment and a statement as to the specific facts believed to be d iscoverable). After our de novo review of the order of the distri ct court, the briefs of the parties, and the record on appeal, we affirm the ju dgment of the district court for substantially the reasons stated by that court in i ts thorough and well-reasoned opinion of December 8, 1995. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

William F. Downes District Judge