                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS April 30, 2013
                                                              Elisabeth A. Shumaker
                                  TENTH CIRCUIT                   Clerk of Court



 PETER J. GIBBONS,

                Plaintiff - Appellant,

 and

 ELSE DONNELL; GLADYS
 MATTHEWS; DANIEL MATTHEWS,

                Plaintiffs,                             No. 11-4208
           v.                                             (D. Utah)
 HIDDEN MEADOW, LLC; WARREN                  (D.C. No. 2:07-CV-00990-CW-SA)
 BRANDOW,

                Defendants - Appellees,

 and

 FRUITLAND DEVELOPMENT
 GROUP; SPRING WATER CAPITAL;
 GREG HOWELL and DERRICK
 BETTS, individuals,

                Defendants.


                              ORDER AND JUDGMENT *


       *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination 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not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
                                                                      (continued...)
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Appellant Peter Gibbons and others invested $650,000 in Fruitland

Development Group so that Fruitland could purchase 424 acres from Hidden

Meadow, LLC. The principals of Fruitland, however, spent the $650,000 on other

things and the acreage was never purchased. Several investors brought suit

against the Fruitland principals and included derivative-action claims against

various persons and entities that were allegedly liable to Fruitland. The present

appeal by Gibbons, acting pro se, challenges the district court’s award of

summary judgment to Hidden Meadow and Warren Brandow, a member of the

company (Defendants). Gibbons argues that the district court improperly granted

judgment on claims that Defendants were unjustly enriched, negligently

misrepresented facts, and engaged in a civil conspiracy. 1 We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

I.    DISCUSSION

      A.    Standard of Review




      *
       (...continued)
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        The district court also entered summary judgment for Defendants on a
claim for receipt of stolen property; Gibbons does not challenge that decision on
appeal.

                                        -2-
      We review the district court’s grant of summary judgment de novo,

“applying the same standards that the district court should have applied.”

Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011)

(internal quotation marks omitted). Summary judgment is appropriate if the

pleadings and the record establish that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law. See id. “We

can affirm on any ground supported by the record, so long as the appellant has

had a fair opportunity to address that ground.” Id. (brackets and internal

quotation marks omitted).

      Because Gibbons is acting pro se, we review his pleadings generously. See

Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013). But a

pro se party still must follow the rules of procedure, and we cannot construct

arguments for him. See id. In particular, Gibbons’s arguments against the district

court’s decision must be set forth in his opening brief. See Toevs v. Reid, 685

F.3d 903, 911 (10th Cir. 2012). Challenges to the district court’s ruling that are

not made until the reply brief are waived. See id.; Graham v. Hartford Life &

Accident Ins. Co., 589 F.3d 1345, 1361 n.7 (10th Cir. 2009).

      B.     Unjust-Enrichment Claim

      Gibbons’s first claim was that Defendants were unjustly enriched when

they retained the $150,000 earnest-money deposit that Fruitland forfeited when it

failed to make the payments necessary to close the purchase of the 424 acres.

                                         -3-
The district court granted summary judgment to Defendants on the ground that the

real-estate purchase contract between Fruitland and Hidden Meadow governed the

rights of the parties relating to the contemplated purchase, and that under Utah

law no action for unjust enrichment will lie if the parties have entered into an

enforceable contract on the matter.

      Gibbons’s sole challenge to this decision in his opening brief is that there

was no enforceable contract because Hidden Meadow had misrepresented that a

prior mortgage on the acreage could be subordinated to a mortgage that Fruitland

would need to grant to obtain a loan for the cash payment required at closing for

the purchase. But Gibbons has presented no evidence of a misrepresentation. He

has relied on a finding in the stipulated judgment in this case between Derrick

Betts (a member of Fruitland) and the plaintiffs. The finding is that Betts stated

that Hidden Meadow and Brandow had represented that the prior mortgage could

be subordinated to allow Fruitland to obtain bank financing. But this stipulation

does not bind Hidden Meadow or Brandow, neither of whom were parties to the

settlement. And because Betts’s statement is hearsay, it is not proper evidence in

opposition to a motion for summary judgment. See Wright-Simmons v. City of

Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). Gibbons argues that

Betts’s statement was admissible under the hearsay exception for statements

against interest. But he fails to argue how the statement was against Betts’s




                                         -4-
interest and makes no attempt to show that Betts was unavailable as a witness, as

would be required to apply the exception. See Fed. R. Evid. 804(b)(3).

      C.     Negligent-Misrepresentation Claim

      Gibbons’s second claim was that Defendants were liable for negligently

misrepresenting that the prior mortgage on the property could be subordinated to

a bank mortgage necessary to allow Fruitland to finance the purchase price. The

district court granted summary judgment on this claim on the ground that Utah’s

economic-loss rule barred recovery of Fruitland’s economic damages in tort

because all of Defendants’ duties to Fruitland arose out of a contract. See

Hermansen v. Tasulis, 48 P.3d 235, 240 (Utah 2002) (“[A] party suffering only

economic loss from the breach of an express or implied contractual duty may not

assert a tort claim for such a breach absent an independent duty of care under tort

law.” (internal quotation marks omitted)). On appeal Gibbons argues that the

economic-loss rule should not have been applied in this case because the district

court “concluded in error that an enforceable contract existed despite triable

issues of fact to the contrary.” Aplt. Br. at 12. As we have already explained,

however, Gibbons failed to bring forward sufficient evidence to support this

argument. He also argues that “the question of whether a duty exists independent

of the contract, such as pre contractual disclosures of conflicts of interests, are

not even considered by the trial court.” Id. But he points to no independent

source of duty. Thus, we affirm the district court’s decision on this claim.

                                          -5-
      D.     Civil-Conspiracy Claim

      As to the civil-conspiracy claim, the district court granted summary

judgment to Defendants because the plaintiffs failed to establish a meeting of the

minds between Brandow and Hidden Meadow on one side and the Fruitland

members on the other. It stated that the plaintiffs’ assertions, “even if evidence

could be offered to support them, substantiate nothing more than that the

Defendants were in a position where they could have conspired.” Aplt. App.,

pt. II at 537 (Memorandum Decision & Order at 10, Gibbons v. Nat. Real Estate

Investors, No. 2:07-cv-00990-CW-SA (D. Utah Dec. 6, 2011)) (emphasis added).

In response Gibbons argues:

      Indeed if it can be shown that the “Defendants were in a position
      where they could have conspired” then it is entirely possible that trial
      testimony could lead a jury to conclude that they did conspire. The
      conclusion by the trial court to the contrary presumes that no further
      evidence or testimony could be introduced at trial.

Aplt. Br at 13. This argument misapprehends Gibbons’ burden in opposing

Defendants’ motion for summary judgment. As the party who would be required

to prove the civil-conspiracy claim at trial, Gibbons had to “make a showing

sufficient to establish the existence of” each challenged element of that claim at

the summary-judgment stage. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

It is not enough to assert that the necessary evidence may be produced at trial.




                                         -6-
II.   CONCLUSION

      We AFFIRM the judgment of the district court on all three claims.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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