UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UET RR, LLC, Plaintiff - Appellee/Cross-Appellant,

v. BENJAMIN D. COMIS; K3B PARTNERS, ULC; BARRY COMIS; FALCON CREEK ASSET MANAGEMENT, INC.; RKB INVESTMENTS, LTD.; RICHARD K. BRUGGER; K. TODD HICKS; VIERO GROUP, INC., Defendants – Appellants/ Cross-Appellees, and TALANDA SYKES, Defendant. Nos. 17-1200 & 17-1218 (D.C. No. 1:14- CV-01237-RPM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### June 19, 2018
Elisabeth A. Shumaker Clerk of Court2 In No. 17-1200, Defendants appeal the di strict court’s award of damages in favor of plaintiff UET RR, LLC (“UETRR”) on its fraud claims about railcar leases. Defendants argue a judgment UETRR obtai ned against Viero En ergy, LLC (“Viero Energy”), 1 in a previous Texas state-court su it for breach of the leases precluded UETRR’s claims. In No. 17-1218, UETRR cross-appeals from the district court’ s dismissal of its declaratory judgment claim and the court’ s ruling that UETRR was entitled to prejudgment interest only from the date it de manded the return of its deposits and not the date it was fraudulently induced to pay them. Exercising jurisdiction under 28 U.S.C. § 1291, we af firm in No. 17-1200. We affirm in part and re verse in part and remand fo r further proceedings in No. 17-1218.
I. THE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW The district court conducted an eight-day bench trial and then issued findings of fact and conclusions of la w, which we summarize below.
A. The Railcar Leases UETRR transported crude oil from th e production site to oil refineries throughout the United States . Defendant Ben Comis, w ho negotiated railcar leases on behalf of Viero Energy, represented to UETRR that Viero was owned in equal shares by K3B Partners, ULC (“K3B”), and Minks, LLC—a company owned by

1 Viero Energy was an affiliate of de fendant Viero Group, Inc. Defendant K3B Partners, ULC owned both.3 defendant Talanda Sykes. 2 The court found that “K3B was the operating entity using the Viero Energy name,” and “Ben Comis, [who was a shareholder and director of K3B], was acting for K3B in en tering into the[] leases usi ng the name Viero Energy.” Aplt. App., Vol. 3 at 750. 3 On February 19, 2013, th e first railcar le ase agreement was signed. It obligated Viero Energy to deliver 120 tank cars—in two 60-car blocks—on or before June 1, 2013. For its part, UETRR was to pay $624,000 immediat ely as a deposit to secure the lease. On Febr uary 20, UETRR wired those funds to Viero Energy’s bank account, which Mr. Comis and Mr. Sykes cont rolled. That same day, Mr. Comis wired $472,800 to the bank account of SBG Transport, LLC (“SBG”)—an Arkansasbased oilfield services company that ha d agreed to supply the railcars to Viero Energy. 4 UETRR was led to believe that Vier o Energy owned the railcars. It was therefore unaware of SBG’s role until discovery in this suit. On March 19, 2013, the parties signed th e second railcar lease agreement. It called for the lease of 180 tank cars and a $936,000 deposit. UETRR wired those funds to Viero Energy’s bank account on March 21. On March 25, Viero Energy

2 Mr. Sykes was named as a defendant a nd served in the su it. He failed to respond and was found in default.

3 The other shareholders and director s of K3B were defendants Barry W. Comis, RKB Investments, Lt d., Falcon Creek Asset Mana gement, Inc., Richard K. Brugger, and K. Todd Hicks.

4 David Selleck organized SBG. Fr ed Straub managed it. UETRR never discovered their wher eabouts.4 wired $709,000 to SBG’s bank account. And on June 7, Mr. Comis demanded that SBG transfer $362,000 to K3B. When Viero Energy failed to deliver the railcars, UETRR term inated the leases and requested immediate return of the deposits. The part ies entered into a repayment agreement, but when no payments were fo rthcoming, UETRR sued Viero Energy for breach of the lease agreements in Texas state court in September 2013. 5 Viero Energy failed to appear, and UETRR obtain ed a default judgment in December 2013 for $1,560,000. During post-judgment disc overy, UETRR began to uncover the true facts about Viero Energy and the potential fra ud, which in turn re sulted in the filing of this suit in April 2014.
B. The Fraud After the bench trial, th e district court found that “UETRR has proven by a preponderance of the eviden ce that it lost $1.56 million in the deposits by fraudulent inducements made by Ben Comis and it lost any means of recovery of that money by the repeated fraudulent representations ma de by Ben Comis and Talanda Sykes after failure of delivery.” Id . at 756. In particular, the court found three categories of false representations. The first two categories of false representations concerned the false information provided to UETRR to induce it to enter into the l ease agreements and make the deposits. In this regard, the court found that Mr. Comis lied to UETRR

5 UETRR sued Viero Energy in the Texas case but not in the instant federal case, in which it sued the Viero Group instead.5 about the financial viability of Viero Ener gy. For example, Mr. Comis sent UETRR a “completely false and contrived Profit a nd Loss Statement . . . [in] July [] 2013, purporting to show total inco me of [more than $37 million] received in the first six months of 2013.” Id . at 755. In truth, “Viero Energy was never a functioning business entity,” id . at 749, and neither Viero En ergy nor SBG “had financial resources available to obtain the rail cars they contracted to provide,” id . at 752. Further, Mr. Comis “blatantly lied . . . about Viero Energy and its possession of railcars leading to the signing of the lease agreements.” Id. Here, the court noted a February 2013 email from Mr . Comis to UETRR in whic h he sent a photograph and set of specifications for an allege d Viero Energy railcar stating “ALL OUR [RAIL]CARS ARE FRA, AAR, & DOT APPROVED.” Id . at 755. According to the court, “[a]ll of this was false.” Id

. The third category concerned affirmative acts of concealment that “delay[ed] any recovery while there was some money still in [Viero Energy’s] bank account.” Id . In particular, the dist rict court found that Mr. Co mis “continued [the] deception by emailing assurances [to UETRR] th rough the Spring and Summer of 2013, explaining failure to deliver the cars . Sykes took over that role in his communications with [UETRR] also using fa lse statements about obtaining financing to repay the deposits.” Id . at 752. The district court found that “[t]he le ase agreements were not what UETRR assumed them to be when it su ed Viero Energy in Texas.” Id . at 750. Instead, the facts first uncovered after the Texas su it (because defendants concealed them)6 established that “[t]he Te xas judgment is now meaningl ess because it was based on the false assumption that Viero Energy was a functioning entity. In reality it was a chimera—a mythical creature.” Id

. II. 17-1200 – DE FENDANTS’ APPEAL Defendants argue the Texas state c ourt judgment precluded UETRR’s fraudbased claims. The parties agree that Texa s law determines the preclusive effect of the Texas state court judgment. See Aplt. Opening Br. at 12 & Aplee. Br. at 31. See also Campbell v. City of Spencer , 777 F.3d 1073, 1077-78 ( 10th Cir. 2014) (“Federal courts must give a state c ourt judgment the same preclu sive effect as would its originating state.”). They further agr ee that Texas’s claim-preclusion doctrine precludes relitigating claims th at have been finally adjudi cated, or that arise out of the same subject matter. Specifically, “res judicata re quires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Amstadt v. U.S. Brass Corp ., 919 S.W.2d 644, 652 (Tex. 1996). The first two elements are satisfied. The partie s disagree about the third element—whether UETRR’s fraud claims were raised or could have been raised in the Texas suit. According to defendants, this is a question of law that we review de

novo. See Aplt. Br. at 11 (“The res judicata effe ct of a prior judgm ent is a question of law that we review de novo”) (int ernal quotation marks omitted)). UETRR counters that de novo review applies only if it is undisputed what claims and facts7 were alleged in the Texas state court suit. UETRR maintains we should review the district court’s determination that it could not have discove red the potential fraud claims until after the Texas suit for clear erro r, because it “involve[s], primarily, a factual inquiry.” Aplee. Br. at 28 (i nternal quotation ma rks omitted). “In an appeal from a bench tr ial, we review the distri ct court’s factual findings for clear error and its lega l conclusions de novo.” Roberts v. Printup , 595 F.3d 1181, 1186 (10th Cir. 2010) (inter nal quotation marks omitted). We review “mixed questions of law and fact . . . under the clearly erroneous or de novo standard, depending on whether the mixed question involves primarily a factual inquiry or the consideration of legal principles.” Id . (internal quotation mark s omitted). Because the district court’s determination that UE TRR could not have di scovered the potential fraud claims until after judgm ent entered in the Texas state court suit involves primarily a factual inquiry, our re view is for clear error. “A finding of fact is clear ly erroneous if it is wi thout factual support in the record or if, after reviewing all the eviden ce, we are left with a definite and firm conviction that a mistak e has been made.” Mathis v. Huff & Puff Trucking, Inc. , 787 F.3d 1297, 1305 (10th Ci r. 2015) (internal quotati on marks omitted). “In conducting this review, we view the evid ence in the light most favorable to the district court’s ruling and must uphold any district court fi nding that is permissible in light of the evidence.” Id . (internal quotation marks omitted). Under this highly deferentia l clearly erroneous standard of review, we affirm the district court’s findings of fact even if “the record supports a view of the evidence8 that is permissible but contrary to the tr ial court’s findings . . . [because] [w]here there are two permissible views of the evid ence, the factfinder’s choice between them cannot be clearly erroneous.” Id . at 1305-06 (internal quotation marks omitted). It is not enough that the evidence could support a differe nt finding—we cannot reverse the district court’s finding unless it finds no support in the evidence. Here, evidence supported the district c ourt’s finding that UETRR wa s prevented from discovering the potential fraud claims until after judgm ent entered in the Texas suit. Claim preclusion therefore does not apply.
III. 17-1218 – UETRR’S CROSS APPEAL
A. Declaratory Judgment In its second amended complaint, UET RR asserted a claim for declaratory relief that defendants were liable for the judgment in the Texas suit as the privies or alter egos of Viero Energy. It argues here that the di strict court erred when it dismissed this claim. UETRR is represented by counsel and th erefore must file an appendix that serves as the record on appeal. See 10th Cir. R. 10.2(B), 30. 1(B)(1). Its appendix contains the courtroom minut es from the hearing on the motion to dismiss, which state that UETRR’s counsel “answer[ed] ques tions of the Court regarding the declaratory judgment claim,” Aplt. App., Vol. 3 at 609, and that the court made its oral ruling. UETRR, however, has not in cluded a transcript from the hearing or otherwise explained why one cannot be obtained.9 Under 10th Cir. R. 10.1(A)(1), “[t]he a ppellant must provide all portions of the transcript necessary to give the court a complete and accura te record of the proceedings related to th e issues on appeal.” See also 10th Cir. R. 10.3(C)(3) (requiring a record on appeal to contain transcripts of oral ru lings). “[F]ailure to file the required transcript involves more than noncompliance with some useful but nonessential procedural admon ition of primarily administrativ e focus. It raises an effective barrier to informed, substantive appellate review.” McGinnis v. Gustafson , 978 F.2d 1199, 1201 (10th Cir. 1992). Without the transcript , we affirm the district court’s order. See id

. B. Prejudgment Interest The district found that the Defenda nts—through Mr. Comis—fraudulently induced UETRR to sign the contracts and make the deposits. UETRR paid Viero Energy a $624,000 deposit on February 20, 20 13, under the first railcar lease, and paid Viero a $936,000 deposit on March 21, 2013, on the second railcar lease. Nonetheless, the district c ourt held that UETRR was en titled to prejudgment interest under Colo. Rev. Stat. § 5-12-102(1) from th e date it first demanded return of the deposits—not when the de posits were made. “A federal court sitting in diversity applies state law, not federal law, regarding the issue of prejudgment interest.” Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1288 (10th Cir. 2005) (i nternal quotation marks omitted). Though we review the district court’s awar d of prejudgment interest for abuse of discretion, we review “any st atutory interpretation or le gal analysis underlying such10 an award de novo.” Id . (internal quotation marks omitted ). “Whether a particular factual circumstance falls w ithin the terms of the prejudgm ent interest statue is a question of law reviewed de novo.” Id

. Section 5-12-102(1)(a) provides that the prevailing party is entitled to prejudgment interest on money or propert y that is “wrongfu lly withheld.” “Wrongfully withheld” means “when plain tiff’s injury is me asured because the damages, if then paid, would make the plaintiff whole.” Goodyear Tire & Rubber Co. v. Holmes , 193 P.3d 821, 827 (Colo. 2008). Th erefore, the Colorado courts have held that injury from fraudulent or tortious conduct is typically measured from the date of the defendant ’s wrongful conduct. E.g. , Frontier Exploration, Inc. v. Am. Nat’l Fire Ins. Co ., 849 P.2d 887, 893-94 (Colo. Ap p. 1992) (holding prejudgment interest began to accrue on date insured’ s fraudulent estimate s caused insurance company to pay benefits); Arguelles v. Ridgeway , 827 P.2d 553, 558 (Colo. App. 1991) (holding prejudgment interest a ccrued from date defendant fraudulently induced plaintiff to sign a real estate contract). Defendants wrongful conduct occurred when they fraudulently induced U ETRR to enter into the agreements and make the deposits. UETRR is therefore entitled to prejudgmen t interest from the date of the deposits.
IV. CONCLUSION In No. 17-1200, we affirm the district court’s judgment in favor of UETRR and against defendants on its fraud claims. In No. 17-1218, we affirm the cour t’s order that dismissed UETRR’s11 declaratory judgment claim. We revers e the court’s order that denied UETRR prejudgment interest from the date of the deposits, and re mand with instructions to enter an award of prejudgment interest c onsistent with this order and judgment. 6
Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

6 We deny UETRR’s motion to dismis s and further deny its motion for attorney fees incurred in preparing the motion.