OpenJurist

43 F3d 1482 Fennell v. United States

43 F.3d 1482

75 A.F.T.R.2d 95-391, 95-1 USTC P 50,026

James W. FENNELL, Marjorie Fennell, Charles R. Byrne and
William G. Kemp as Co-Personal Representatives of the Estate
of Francis X. Byrne, Deceased, Carolyn R. Byrne, Charles R.
Byrne and Karen S. Byrne, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.

No. 93-1342.

United States Court of Appeals, Tenth Circuit.

Dec. 8, 1994.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

1

D.Colo., D.C. No. 92-F-1646.

2

Ellis J. Sobol, Denver, CO, for plaintiffs-appellants.

3

Frank P. Cihlar, Atty., Tax Div., Dept. of Justice (Loretta C. Argrett, Asst. Atty. Gen., Richard Farber, Atty., Tax Div., Dept. of Justice, with him on the brief), Washington, DC, for defendant-appellee.

4

D.Colo., 830 F.Supp. 1368.

5

AFFIRMED.

6

Before SEYMOUR, Chief Judge, McKAY, Circuit Judge, and BELOT,* District Judge.

7

ORDER AND JUDGMENT**

8

BELOT, District Judge.

9

Plaintiffs appeal the district court's grant of summary judgment in favor of defendant. We review a grant of summary judgment de novo applying the same legal standard as did the district court. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992), cert. denied, 113 S.Ct. 635 (1992). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When applying that standard, "[w]e view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury." Thomas, 968 F.2d at 1024.

10

After careful consideration of the arguments on appeal and the record below, we are not persuaded the district court erred in granting summary judgment in favor of defendant. We affirm the district court for substantially the same reasons set forth in its June 30, 1993 order.

11

The judgment of the United States District Court for the District of Colorado is AFFIRMED.

*

Honorable Monti L. Belot, United States District Judge for the District of Kansas, sitting by designation

**

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