green
Positive treatment
Quoted verbatim 2×
33.9 score
“at the time the parties entered into the 1975 contract, the result of plaintiffs future performance under the contract could only have been mere conjecture, not an existing fact. no claim of mutual mistake can be stated on such a basis.”
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986
2006
2026
Top citers, strongest first. 42 distinct citers.
How cited ↗
examined
Cited as authority (verbatim quote)
Kruzich v. Old Republic Insurance
at the time the parties entered into the 1975 contract, the result of plaintiffs future performance under the contract could only have been mere conjecture, not an existing fact. no claim of mutual mistake can be stated on such a basis.
discussed
Cited as authority (verbatim quote)
Burke v. Hawkeye National Life Insurance Co.
plaintiff's right to vestings exists solely because of and is circumscribed by his contract with penn mutual, which is the reference point for determining the rights and duties of the parties.
discussed
Cited as authority (rule)
The Travelers Indemnity Company, as Subrogee v. Johnson Controls Fire Protection, L.P., v. SF Overland Park, LLC; Park Meadows Senior Living, LLC; Spectrum Retirement Communities, LLC; SRC of Kansas, LLC; and Spectrum Acquisition Partners, LLC
Co., 788 F.2d 650, 656 (10th Cir. 1986) (citing Augusta Med.
cited
Cited as authority (rule)
Sanchez v. Pinnacle Credit Services, LLC
Co., 788 F.2d 650, 656 (10th Cir.1986), and United States ex rel.
cited
Cited as authority (rule)
Carvana v. MFG Financial, Inc.
Co., 788 F.2d 650, 653 (10th Cir.1986).
discussed
Cited as authority (rule)
Bruner v. Baker
(2×)
also: Cited "see"
Co., 788 F.2d 650, 653 (10th Cir.1986). 5 In order to state a § 1983 claim, a plaintiff must “allege the violation of a *1026 right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988).
cited
Cited as authority (rule)
Alpine Bank v. Hubbell
Co., 788 F.2d 650, 653 (10th Cir.1986) (stating “[c]onclusory allegations ... do not establish an issue of fact” in motions for summary judgment).
cited
Cited as authority (rule)
Warren v. Liberty Mutual Fire Insurance
Co., 788 F.2d 650, 653 (10th Cir.1986) (“Conclu-sory allegations ... do not establish an issue of fact” in motions for summary judgment).
discussed
Cited as authority (rule)
Ryan v. Ryan
Co. 788 F.2d 650, 661 (10th Cir.1986)(“at the time the parties entered into the 1975 Contract, the result of plaintiffs future performance under the contract could only have been mere conjecture, not an existing fact.
discussed
Cited as authority (rule)
Merkel v. Abeita
Co., 788 F.2d 650, 653 (10th Cir. 1986). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which -5- that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an essential elem ent of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323 .
discussed
Cited as authority (rule)
Merkel v. Abeita
Co., 788 F.2d 650, 653 (10th Cir.1986). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323 , 106 S.Ct. 2548 .
cited
Cited as authority (rule)
Scandinavian Satellite System, AS v. Prime TV Ltd.
Co., 788 F.2d 650, 662 (10th Cir.1986) (“Rescission is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud, or duress.”).
discussed
Cited as authority (rule)
Hyman v. Ford Motor Co.
Co., 788 F.2d 650, 662 (10th Cir.1986)(claim for recission brought 8 years after contract was effective untimely); Mariner Water Renaturalizer v. Aqua Purification Systems, Inc., 665 F.2d 1066 (D.C.Cir.1981)(time lapse of 5-8 weeks between buyer's discovery of grounds for recission of contract and buyer's notification of seller was not reasonable for purposes of election to rescind); Steinberg v. Bay Terrace Apt.
cited
Cited as authority (rule)
Fender v. Kansas Social & Rehabilitation Services
Co., 788 F.2d 650, 662 (10th Cir.1986) (holding that rescinding party must give notice to the other party), and that no such notice was given.
discussed
Cited as authority (rule)
McCart v. Jordana (In Re Jordana)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Baker v. Penn Mutual Life Insurance Co., 788 F.2d 650, 653 (10th Cir.1986); Harris, 209 B.R. at 995-96 .
cited
Cited as authority (rule)
Terrell v. Dura Mechanical Components, Inc.
Co., 788 F.2d 650, 661-62 (10th Cir.1986); Restatement (Second) of Contracts § 151(a).
cited
Cited as authority (rule)
J. Thomas Hares v. Tulsa Housing Authority, Sued As: The Housing Authority of the City of Tulsa
Co., 788 F.2d 650, 656 (10th Cir.1986).
discussed
Cited as authority (rule)
Woods v. Denver Department of Revenue
(2×)
Co., 788 F.2d 650, 662 (10th Cir.1986) (holding that to rescind contract, rescinding party must, among other things, give notice to other party).
discussed
Cited as authority (rule)
66 Fair empl.prac.cas. (Bna) 1693, 65 Empl. Prac. Dec. P 43,418 Ruth v. Woods v. Denver Department of Revenue, Treasury Division City and County of Denver
(2×)
Co., 788 F.2d 650, 662 (10th Cir.1986) (holding that to rescind contract, rescinding party must, among other things, give notice to other party).
discussed
Cited as authority (rule)
Schiller v. Moore
Co., 788 F.2d 650, 653 (10th Cir.). 8 In Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 , the Supreme Court devised a balancing test in which we are to weigh the "interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568 , 88 S.Ct. at 1734-35 .
discussed
Cited as authority (rule)
Dairyland Power Cooperative v. United States
Co., 788 F.2d 650, 661-62 (10th Cir.1986) (holding that no claim of mutual mistake can be stated on the basis of disappointed expectations as to a future event, which amount to “mere conjecture, not an existing fact”); Shear v. National Rifle Ass’n of Am., 606 F.2d 1251, 1260 (D.C.Cir.1979) (“The mistake doctrine doés not apply to predictions or promises of future conduct.”); United States v. Garland, 122 F.2d 118, 122 (4th Cir.) (“A mutual mistake in prophecy or opinion may not be taken as a ground for rescission where such mistake becomes evident through the passage of time.”)…
cited
Cited as authority (rule)
Tow Jack Products, Inc., a Delaware Corporation v. Johnson Industries, Inc., a Kansas Corporation James E. Johnson
Co., 788 F.2d 650, 662 (10th Cir.1986).
discussed
Cited as authority (rule)
Lyons v. Jefferson Bank & Trust
Co., 788 F.2d 650, 663 (10th Cir.1986) (breach of contract argument does not preserve issue of tortious conversion of negotiable instruments); United States v. Lattauzio, 748 F.2d 559, 561 (10th Cir.1984) (argument that guarantors of a debt were not liable because the collateral was not sold in a commercially reasonable manner does not preserve theory that they could not be liable because the debtor had not defaulted). 24 b 25 Similarly, we have held that where an issue is raised but not pursued in the trial court, it cannot be the basis for the appeal.
discussed
Cited as authority (rule)
Lyons v. Jefferson Bank & Trust
Co., 788 F.2d 650, 663 (10th Cir.1986) (breach of contract argument does not preserve issue of tortious conversion of negotiable instruments); United States v. Lattauzio, 748 F.2d 559, 561 (10th Cir.1984) (argument that guarantors of a debt were not liable because the collateral was not sold in a commercially reasonable manner does not preserve theory that they could not be liable because the debtor had not defaulted). b Similarly, we have held that where an issue is raised but not pursued in the trial court, it cannot be the basis for the appeal.
cited
Cited as authority (rule)
Aldrich Enterprises, Inc., Etc. v. United States
Co., 788 F.2d 650, 653 (10th Cir.1986).
cited
Cited as authority (rule)
Downtown Medical Center/Comprehensive Health Care Clinic v. Bowen
Co., 788 F.2d 650, 653 (10th Cir.1986).
cited
Cited as authority (rule)
Downtown Medical Center v. Bowen
Co., 788 F.2d 650, 653 (10th Cir.1986). 41 At issue here are questions of law.
cited
Cited as authority (rule)
Cecil Cooper, Jr. v. Bill Roberson, Bud Davis
Co., 788 F.2d 650, 663 (10th Cir.1986). 4 The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. * Honorable Lewis T.
cited
Cited as authority (rule)
Sharp Electronics Corp. v. Lodgistix, Inc.
Co., 788 F.2d 650, 662 (10th Cir.1986).
discussed
Cited as authority (rule)
Deepwater Investments, Limited v. Jackson Hole Ski Corporation and Paul M. McCollister
(2×)
Co., 788 F.2d 650, 653 (10th Cir.1986).
cited
Cited as authority (rule)
Mountain Fuel Supply, a Utah Corporation, and Cna Insurance Company v. Reliance Insurance Company
Co., 788 F.2d 650, 653 (10th Cir.1986); Windon Third Oil and Gas Drilling Partnership v. Fed.
cited
Cited as authority (rule)
Valley Transit Mix of Ruidoso, Inc. v. Miller
Co., 788 F.2d 650, 663 (10th Cir.1986).
discussed
Cited as authority (rule)
Valley Transit Mix of Ruidoso, Inc. v. Miller
Co., 788 F.2d 650, 663 (10th Cir.1986). 11 Accordingly, the judgment of the United States District Court for the District of New Mexico is AFFIRMED. 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.
cited
Cited as authority (rule)
Pacific Enterprises Oil Company, a California Corporation v. Charles S. Hertz
Co., 788 F.2d 650, 653 (10th Cir. 1986), and that the grant of summary judgment was appropriate.
discussed
Cited as authority (rule)
M. Leff Radio Parts, Inc. v. Mattel, Inc.
Consequently, “[neither disappointed expectations as to future events, nor mistakes of judgments or belief in that regard, state any claim for relief based on mutual mistake.” Baker v. Penn Mutual Life Insurance Co., 788 F.2d 650, 662 (10th Cir.1986); Haas v. Pittsburgh National Bank, 495 F.Supp. 815, 817 (W.D.Pa.1980).
cited
Cited as authority (rule)
Marilyn Wheeler v. Main Hurdman
Co., 788 F.2d 650, 653 (10th Cir.1986); Morgan v. Mobil Oil Corp., 726 F.2d 1474, 1477 (10th Cir.1984).
cited
Cited as authority (rule)
Fed. Sec. L. Rep. P 93,309 Karen A. McVay v. Western Plains Service Corporation
Co., 788 F.2d 650, 653 (10th Cir.1986); Gomez v. American Elec.
cited
Cited as authority (rule)
Marie A. Houston v. National General Insurance Company
Co., 788 F.2d 650, 663 (10th Cir.1986).
cited
Cited "see"
The First Interstate Bank of Idaho v. The Small Business Administration and James C. Sanders, Administrator, Small Business Administration
Id. at 112-13 ; see Baker, 788 F.2d at 662 (rescinding party must cease accepting benefits under the contract (citing Williston on Contracts, supra, § 1460, at 115-19)).
Retrieving the full opinion text from the archive…
Gerald ALBERS, Plaintiff-Appellant,
v.
Harold WHITLEY, Defendants-Appellees
v.
Harold WHITLEY, Defendants-Appellees
82-3551.
Court of Appeals for the Ninth Circuit.
Apr 30, 1986.
Gene B. Mechanic, Portland, Or., for plaintiff-appellant., Kay Kiner James, Asst. Atty. Gen., David Frohnmayer, Atty. Gen., Salem, Or., for defendants-appellees.
Wright, Canby, Booc-Hever.
Published
Pursuant to the decision and mandate of the Supreme Court of the United States in Whitley v. Albers, — U.S.-, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), the decision of the district court in this case is affirmed.