Marvin E. Wolf, As Managing General Partner for Them.e.m.1984-a Drilling Fund, L.p., a Coloradolimited Partnership, Plaintiff-appellant, v. Chesapeake Operating, Inc., an Oklahoma Corporation,defendant-appellee, Anandtrust Company of the West, a California Trust; Ronald E.robison, in the Capacity of Trustee for Trust Company of Thewest, a California Resident; Chesapeake Explorationcompany, an Oklahoma General Partnership; Chesapeake Energycorporation, a Delaware Corporation; Tcw Dr Iii Royaltypartnership, a California Limited Partnership; Union Bank,a California State Banking Organization, Defendants, 72 F.3d 139 (10th Cir. 1995)

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US Court of Appeals for the Tenth Circuit - 72 F.3d 139 (10th Cir. 1995) Dec. 7, 1995


Before TACHA and BARRETT, Circuit Judges, and BROWN,**  Senior District Judge.

TACHA, Circuit Judge.

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. Further, appellant's separate motion for oral argument is denied.

Appellant seeks review of the district court's grant of summary judgment in favor of appellees. Jurisdiction in the district court was based on diversity, 28 U.S.C. 1332(a) (1); our jurisdiction on appeal arises from 28 U.S.C. 1291. We review the district court's summary judgment ruling de novo, applying the same standards as those used by the district court under Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). Because the facts are undisputed, our review is limited to determining whether the district court correctly applied the substantive law. See id.

After careful consideration of the parties' briefs, including appellees' surreply and appellant's objections thereto,2  and after review of the record on appeal, we conclude that the district court correctly decided this case. Further, we agree with appellees that appellant, in his reply brief, raised new issues on appeal, issues we decline to review. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 724 (10th Cir. 1993). Appellant's contention that the issues raised in his reply brief were not new because the district court acknowledged their factual underpinnings is meritless. Equally unpersuasive is appellant's assertion that this court should review the issues as alternative theories which involve only questions of law.

Accordingly, for substantially the reasons set forth in the district court's order dated November 14, 1994, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470


Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation


Appellees' motion for leave to file a surreply brief is hereby granted