RMA Ventures California v. SunAmerica Life Insurance

provided with other officers and skirmish probable cause to suspicion

reasonable him; detain, we therefore and search

stop, denial of his the district court’s

AFFIRM the altered suppress. Given

motion to Chambers, we

landscape in the wake of sentence and Mr. Charles’s

must VACATE resentencing, so that

REMAND for may Mr. reevaluate whether

district under 18 conviction previous

Charles’s 751(a) § was a crime of violence as

U.S.C. 4B1.2(a).

defined USSG CALIFORNIA, a

RMA VENTURES Partnership, Plaintiff-

Utah

Appellant, LIFE

SUNAMERICA INSURANCE and Midland Loan Ser-

COMPANY

vices, Inc., Defendants-Appellees.

No. 08-4035. Appeals,

United States Court

Tenth Circuit.

Aug.

BALDOCK, Judge. Circuit appeal presents This us with a most unusual set of facts. Plaintiff RMA Ven- originally tures California filed suit Defendants Sun America Life Insurance and Midland Loan Services for breach of misrepresentation. contract and alleged imple- that Defendants failed to required ment a interest rate reduction pursuant parties’ mortgage agree- to the ment. court granted The district sum- Defendants, mary judgment for holding voluntary that Plaintiffs payments interest four-year period precluded over a recovery on its claims. Plaintiff appeals the district contend, court’s decision. Defendants however, that we should dismiss Plaintiffs appeal standing. for lack of Defendants’ argument for their standing basis is where proverbial we are thrown the “curve ball.” Specifically, Defendants argue Plain- longer legal rights tiff no owns the to this cause of action because pur- public chased them at a execution sale. Adding posture to the case’s anomalous the fact that the execution sale was meant satisfy Defendants’ award of solely grant based on the fees—an award summary judgment which Plaintiff now appeal. attacks on jurisdiction have under 28 U.S.C. Acknowledging unique cir- here, cumstances involved we conclude pursue that Plaintiff lacks this Moreover, we hold that Plaintiff challenge waived its Defendants’ UT, City, Ady, Ronald W. Salt Lake for legal right to this cause of Plaintiff-Appellant. by failing the district (Mark Tolman, Pratt D. with George W. court’s denial of Plaintiffs motion to briefs), Jones, Waldo, him on the Holbrook We, the execution sale. there- UT, McDonough, City, Lake for & Salt fore, motion to grant Defendants’ dismiss Defendants-Appellees. to reach the merits and decline of contract and mis- LUCERO, BALDOCK, of Plaintiffs breach Before McCONNELL, claims. Judges. representation Circuit provided by Federal procedure, state as

I. 69(a)(1), the Salt Rule of Civil In November City Deputy Constable issued notice Lake for Defen- summary judgment granted execution sale would be held that a of dants, Plaintiffs breach dismissing 15, 2008, May to raise funds satisfac- on claims.1 misrepresentation contract money judgment. The tion of Defendants’ a motion re- subsequently Plaintiff filed sale, however, public noticed for property or, alternative, in the a new trial questing right Plaintiffs to the chose action was court alter or amend its that the district claims) (¿a, legal against Defendants See 59. The case, Plaintiffs including in the instant denied Plaintiffs motion. district court grant court’s of right the district Thereafter, requested Defendants attor- for Plaintiff summary judgment.3 Counsel prevailing neys’ fees and costs as personal Deputy service of the received Rule of pursuant to Federal Civil notice. Constable’s 54(d) law.2 and California Meanwhile, ap- Plaintiff filed a notice of 8, 2008, May Plaintiff filed motion On of sum- grant for the court’s peal district Plain- stay quash or the execution sale. In over mary judgment. March jurisdictional tiff various and due raised objection, the district court Plaintiffs process arguments before attorneys’ granted Defendants’ motion for court, alleged inability pay but never entered for Defen- fees and attorneys’ post of fees or $87,563.07. in the amount of Plain- dants court de- supersedeas bond. The district money pay judgment, ap- tiff did not or nied Plaintiffs motion to award, peal execution sale. Plaintiff did not pending the outcome of the merits bond 15, 2008, May this decision. On Defen- appeal. dants, bidder, purchased highest as the $10,000 Plaintiffs to this lawsuit for 11, 2008, April On Defendants obtained at the execution sale.4 Defendant execution from the Clerk of the a writ of subsequently filed its Certificate of Sale United States District Court for the Dis- with the States District Court for payment trict to enforce United of Utah May on 2008.5 attorneys’ district court’s award of fees. District Utah later, presses on with this Two weeks accordance with Utah nevertheless ACTION, CLAIMS, longer we hold that Plaintiff no has ALL CHOSES IN 1. Because COUNTERCLAIMS, ACTION, standing, underly- we do not recount the facts CAUSES OF ing appeal. the merits THEREFROM; AND APPEALS ARISING PAYMENT; TO RIGHTS TO AND RIGHTS test, Applying 2. Utah’s choice-of-law the dis- OF EVERY KIND AND COMPENSATION ap- court determined that California law trict NATURE, WHICH PLAINTIFF RMA VEN- plied to Plaintiff’s breach of contract and mis- MAY HAVE TURES CALIFORNIA representation claims. AGAINST SUNAMERICA LIFE INSUR- Unsurprisingly, 3. counsel for Defendants AND LOAN ANCE COMPANY MIDLAND language Deputy SERVICES, INC., drafted the in the Consta- INCLUDING BUT NOT ble’s notice. TO, ALL SUCH CLAIMS AND LIMITED CAUSES OF ACTION AND APPEALS sale, Declining 4. to attend the Plaintiff made THEREFROM, ARISING FILED IN OR attempt property up to bid on its for auc- VENTURES CALIFOR- RELATED TO RMA tion. NIA V. SUNAMERICA LIFE INSURANCE COMPANY, AL., ET CASE NO. 2:03-CV- 5. that Defen- The Certificate of Sale states purchased: dants A. argue response, ac- longer owns this cause of Plaintiff no An fees is award tion, that we their mo- request grant the deci “collateral to and 27; P. R.App. See Fed. tion to dismiss. sion on the merits.” Budinich v. Becton R. 27.2. 10th Cir. Co., 196, 200, Dickinson and 486 U.S. (1988) (inter 1717, 100 L.Ed.2d 178 S.Ct. II. (“[I]t omitted); quotations nal see also id. of Plaintiffs question The indisputable attorney’s that a claim for A well- prudential concern. involves part fees is not of the merits of the limitation is prudential-standing founded pertain.”); Janpol to which the fees Art cannot sue federal court to litigants that Volkswagen, Inc. v. Fiat Motors North of Fed. rights enforce the of others. See (10th America, Inc., 690, 767 F.2d 17(a) (establishing only R.Civ.P. Cir.1985) (“[A]judgment on the merits and permitted bring to party real interest is attorneys a fees determi subsequent [sic] court); action in federal v. an Rawoof separate proceed nation are and distinct (7th Co., Inc., 750, 757 Petrol. 521 F.3d Texor Thus, ings.”). a decision on the and merits Cir.2008) of (noting that Federal Rule Civil attorneys’ a decision on fees are consid in interest re party Procedure 17’s real separate, ered final decisions of the district quirement essentially is the codification of court, subject appeal under 28 U.S.C. limi prudential-standing a well-established Budinich, 202-03, § 1291. See 486 U.S. at litigants enforcing precluding tation 1717; Janpol Volkswagen, Art 108 S.Ct. others); Immigra American rights of (“For purposes appeal, 767 F.2d at 697 of Reno, Lawyers tion Ass’n v. 199 F.3d each determination in a separate results (D.C.Cir.2000) 1352, (recognizing that final the filing and distinct decision and of general prohibition courts have a federal appeal a notice of is therefore per a another allowing litigant on raise review.”). required to obtain words, a legal rights). son’s other summary judgment and After the dis- standing contingent upon plaintiffs trict court’s denial of Plaintiffs motion for right. entitlement to enforce asserted a trial judg- new or to alter amend the Rawoof, at 756. At the out See 521 F.3d ment, requested attorneys’ Defendants clearly Plaintiff was litigation, set of this Rule of fees and costs under Federal Civil question The for the real interest. 54(d). objected to De- now, however, us is whether Defendants solely fendants’ motion on timeliness lawsuit, rights obtained Plaintiffs to this 54(d) grounds, arguing requires that Rule thereby standing. Plaintiff of divesting prevailing party that a file a motion for Cole, 1204, Lippoldt See v. 468 F.3d Cir.2006) (10th attorneys’ days entry fees within after (noting “plaintiff that a judgment. of See Fed.R.Civ.P. standing throughout continue to have must 54(d)(2)(B)(I). issue, The district court dis- litigation”).6 To resolve this we however, efficacy argument, of Defendants’ missed Plaintiffs hold- must assess ing filing period attorneys’ for following summary judgment. actions request that Defendants' that we trine of set in a time frame: The note requisite personal could also be described as interest that must exist dismiss litigation (standing) argument. a mootness the commencement of Arizonans for Offi- Arizona, (moot- throughout English must continue its existence cial 520 U.S. 68 n. (citations (1997) ness).”) quotations 117 S.Ct. internal L.Ed.2d 170 omitted). ("Mootness described as the doc- has been (3d 54.158[2][a], Practice at 54-262 filed a mo- eral when Plaintiff fees was tolled 2009). step in en Generally, alter or amend the first trial or to ed. tion for new Thus, forcing money judgment is to obtain id.', for Defendants’ motion ruled writ of execution. See 69(a)(1) for timely and entered (noting money judgment fees was that “[a] $87,563.07. execution”). in the amount Defendants by a writ of Ac is enforced noted, this rul- Plaintiff did not As cordingly, properly here Defendants, or ing, pay the court was within sought district —and the out- pending bond authority to writ of execution its issue—a merits come of its allowing Defendants to collect on their City money judgment. See Palmer v.

B. (7th Cir.1986) 1316, 1320 Chicago, in “have certain Federal courts courts have (acknowledging district proceed their authority protect herent to enforce an award of fees even power in the course of dis ings judgments entry judgment). of a final before responsibilities.” charging their traditional States, 820, 823, C. 517 U.S. Degen v. United (1996). 1777, 135 L.Ed.2d 102 116 S.Ct. court Once federal district issues of fees was a Because the award execution, judgment of creditor a writ judgment, and final procedure on execution must follow to take nec steps court here was entitled by the of the in “established law state essary its decision. See Pea to enforce 10 which the district court sits.” Moore’s Thomas, 349, 359, cock v. 516 U.S. 116 54.158[2][a], 54-262; § at Fed. see also (1996) (“To 862, 133 L.Ed.2d 817 S.Ct. (“The 69(a)(1) procedure on exe R.Civ.P. aid the collection of a federal protect and proceedings supplementary cution—and in Pro judgment, the Federal Rules of Civil judgment to and aid of or execution— fast effective mecha provide cedure procedure accord of the must with execution.”); Young for v. nisms United located....”); the court is 12 state where S.A., rel. et Fils 481 States ex. Vuitton Alan Arthur R. Miller & Wright, Charles 787, 809, 2124, U.S. 107 S.Ct. 95 L.Ed.2d Marcus, Richard L. Federal Practice and (1987) (noting 740 that district courts’ abil (2d 1997) § 3012 at 147 ed. Procedure ity judgments to enforce their orders and (“The will to the state statutes look subject directly “a concerns the is construing [the and to state-court decisions functioning Judiciary”). execution].”). Thus, re statutes on as 69(a)(1) by of the Federal quired Rule judgment granting attorneys’ A Procedure, here Rules of Civil Defendants fees is “collected or executed the same of pre turned to the method execution money judgment.” manner as other al., 10 Moore et scribed under Utah law.7 James Wm. Moore’s Fed- Laubach, Strong § contends that 28 U.S.C. 1291— See v. 443 F.3d 1299 (10th Cir.2006). arguments granting appellate jurisdiction— Plaintiff's are in- this Court (1) suggest negates procedures apposite. Defendants do not Utah's on execution. See 69(a) (“The procedure jurisdiction § under been re- on execu- our 1291 has moved, (2) right procedure ... must accord of the claims tion with Rather, located, longer against the state where the court is but a Defendants exists. governs applies.”) argue they purchased the le- to the extent it Defendants statute federal and, added). Likewise, (emphasis gal rights action there- Plaintiff asserts to this cause of fore, executed, longer judg- entitled to that even if a is Plaintiff is no rights. retains the enforce those ment debtor still law, grant Pursuant to Utah of summary judgment court’s for satisfy money Defendants, their attempted corresponding award of by legal right pur Plaintiffs purchasing attorneys’ fees would also be reversed.8 sue this action. We have found no Utah Palmer, (“[Wjhen 806 F.2d at 1320 none, authority, preclud Plaintiff cites judgment on which an award of attorney’s ing the execution sale of Plaintiffs chose fees to the prevailing party is based is Defendants. See Andrews reversed, award, course, of falls with Inc., Roadway Express it.”); 15B Wright, Charles Alan Arthur R. (5th Cir.2006) (noting authority that no Miller, & Cooper, Edward H. Federal supplant process existed to the state law 3915.6, § Practice and Procedure at 344 execution). of a for the enforcement writ (“If award, no appeal was taken from the contrary, To the under Utah Rule of Civil some means must be found to avoid the 69(f), may “all choses in action unseemly spectacle of enforcing fee ordinarily acquired by a be creditor award based on a judgment that has been through Ap attachment and execution.”8 reversed.”). Thus, $87,563.07 debt Techs., Eames, Inc. v. plied Medical by owed upon which Defendants Plaintiff — (Utah 2002) (emphasis add P.3d purchased rights to this cause of ac ed); 69.03[2], Moore’s see also 13 69- likely tion—would extinguished be if we (noting may that courts look to state reversed the underlying grant summary property exempt law to determine what execution). fact, the Utah Su concerns, Despite such we are unable to expressly “that a preme Court has held ignore the fact that a execution sale ie., claims, defendant can choses place in took which purchased action, pending against itself and then legal Plaintiffs right to continue ap- Applied move to dismiss those claims.” $10,000. Co., peal for See GP Credit LLC Techs., Thus, 44 Medical P.3d at 701-02. Residence, Ltd., 976, v. Orlando 349 F.3d at least on the surface of Defendants’ ac (7th Cir.2003) (noting 980 that a chose in tions, problem we find no in law or fact to intangible action is an property form of negate they Defendants’ contention that sale, that can be sold at a action, foreclosure rights obtained the to this cause of whereby the purchaser steps into thereby depriving standing. Plaintiff of the prior

shoes owner and becomes the III. suit); claimant in the Citizens Nat’l Bank Products, LLC, v. Dixieland Forest 935 recognize We the circumstances of this (Miss.2006) 1004, So.2d 1013 present degree (holding case of discomfort. Namely, if the plaintiffs Plaintiffs were not at defendant —who was also the issue, judgment and we were to reverse the district creditor after prevailing on a allowing purchase pending note that this rule the chase of a cause of action at an pending of a chose in action sale), varies from state Prodigy execution v. T-C Ctrs./Atlanta Compare to state. Nat’l Bank v. Dix- Assocs., 522, 209, Citizens 269 Ga. 501 S.E.2d 211 Prods., LLC, 1004, ieland Forest 935 So.2d (1998) ("Choses 3n. in action are not liable to (Miss.2006) (“[A] per- 1010 chose in action is execution, be seized and sold under unless property subject sonal to a writ of execu- statute.”) specifically by (quotations made so tion.”), Co., and Arbie Mineral Feed Inc. v. omitted). and citation Co., 677, Farm Bureau Mut. Ins. 462 N.W.2d (Iowa 1990) (“Iowa adopted 680 ... has the express opinion 9. We on the likelihood of statutory authorizing broad form of execution underlying ap- success for Plaintiff's merits action.”); levy on choses in with Cal.Civ.Proc. peal. 699.720(a)(3) (prohibiting § pur- Code the Bank, Citizens Nat’l plain- the fees. See

counterclaim —could execution (emphasizing claims at a 935 So.2d at 1014 pending tiffs sale, the real thereby becoming judgment final plaintiff failed to Techs., interest); 44 P.3d Applied Medical the basis for the defen- which served as “causes of ac- (recognizing that at 702-03 levy upon plaintiffs pending dant’s cuts regularly sold” and “the sale tion are action). Second, Plaintiff could chose in plaintiffs right pursue off the former Third, Plaintiff paid have claims”). those supersedeas could have filed a bond with pending the outcome of if a point, to the even suffi More Peacock, 516 the merits U.S. for us to void the sale ground cient exists 359, (noting that the Fed- at 116 S.Ct. 862 action, Plaintiff waived of this cause designed eral Rules of Civil Procedure are argument by failing such position, judgment to secure a creditor’s of the motion to district court’s denial bond). by As ordinarily Ins. Co. v. or execution.10 See Star mentioned, Inc., argued has never Marketing Group Risk (7th Cir.2009) (noting that district inability pay complete issued to the execu court orders bond. final are

tion of a reasons, foregoing decline to For we original appealable). lawsuit and are appeal, reach the merits Plaintiffs appeal the dis Because Plaintiff did not Defendants’ motion to dismiss. GRANT the execution allowing trict court’s decision sale to we will not consider Plain proceed, LUCERO, Judge, concurring. Circuit attacking the sale’s lawful arguments tiffs It is with considerable understatement Sisk, F.2d ness. See Edmonston majority acknowledges the “de- (10th Cir.1946) (noting that gree presented by of discomfort” this case. validity of a writ of execution cannot be agree I am constrained to that we While collaterally); Wright et al. questioned dismiss, by must I am troubled the man- Procedure, Federal Practice and extinguished ner in which SunAmerica has (“A execution, issued, once writ of a right appeal. RMA’s to merits attacked.”). collaterally Accord cannot be presents This case a classic chicken-and- the true ingly, Defendants are now owner’s By executing dilemma: on a egg subsid- may to of Plaintiffs lawsuit and move dis iary judgment, SunAmerica has extin- pending ap miss the claims before us on guished very to the Bank, right appeal RMA’s peal. Nat’l 935 So.2d See Citizens merits determination that served as the (dismissing plaintiffs pend at 1014-15 the ing against predicate subsidiary claims the defendant after the for the in judgment a purchased defendant those claims at If place. the first we were to reach the sale); Applied sheriffs execution Medical merits and reverse the district court’s de- Techs., (holding 44 P.3d at 704 cision, however, there is little doubt pending claims defendant could dismiss RMA would be entitled to relief from the against legally purchasing itself after those subsidiary attorneys’ judgment. fee See sale). claims at a sheriffs execution 60(b)(5) (“On just motion and terms, may the court a or relieve its note that Plaintiff had numerous

We First, legal representative judgment, from a final opportunities to avoid this outcome. (5) order, appealed proceeding judg- Plaintiff could have the award of ... such [if express opinion arguments against 10. We on the merits of cess execution sale's jurisdictional pro- validity. and due Plaintiff's various in purchase creditors to a chose action judgment an earlier is based on ment] vacated.”); through see also execution on another reversed or has been Shalala, Eames, v. Applied v. Med. Techs. P.3d Med. Ass’n Cal. 60(b)(5) Cir.2000) (Rule (Utah (9th 2002); Tanasse, is 701-02 576-78 attor- to aside award of special vehicle set P.2d at 211. the absence of a proper judgment is underlying after neys’ relationship plaintiff fees between the and de reversed); Wright, Alan Ar- fendant, 15B Charles e.g., attorney/client, a in chose Miller, Cooper, H. Fed- thur R. & Edward action an form of property is alienable 3915.6, Tanasse, and Procedure at Practice eral law. under Utah 980 P.2d 1992). (3d RMA will not have the ed. typical 211. But in the situation —to the pursue appeal to its merits opportunity any may extent such transaction be 60(b)(5) file a opportunity thus no to “typical” judgment termed creditor ex —a motion. upon ecutes a final in one case to a in purchase chose a I public policy, a matter of doubt As contrast, By and distinct case. SunAmeri readily places rule that of a wisdom purchased right appeal ca to in the on an auction block. More right appeal to that produced same case permitting is a rule troublesome still it upon ap which executed. Thus this purchase opponent’s ap- to its defendant peal’s circularity: cannot reach the thereby extinguishing a rights, pellate appeal merits of if we grant this the mo obviously claim. plaintiffs “[A defendant] dismiss, tion to we cannot but know wheth litigate a claim has no intention er the motion to dismiss is well-taken un Snow, Drake Nuffer, Engstrom itself.” & less reach merits. we (Utah 1999). Tanasse, P.2d Today’s decision thus incentivizes Utah de- My only concerns are eased this case run around attempt an end fendants appeal because dismissal of this was en- by purchasing determinations merits tirely easily foreseeable and avoided. incentive right appeal. This plaintiffs RMA had abundant notice that SunAmeri- at its zenith when it is most offensive— ca intended to RMA’s be- in those cases which defendant Yet RMA failed to seize of its likely ap- merits lieves it would lose the opportunities numerous to forestall peal. outcome: It did not judgment; it did not ask us to fee noted, Supreme

As the Court has Utah judgment; pay judgment; it not it did by a claim purchased the actual value of bond; did not and it fairly at auction will never be opponent did not the denial of its motion to SunAmerica, Id. at 211-12. determined. Any execution. one of these course, claim hoped purchase RMA’s procedures prevented would have SunAm- possible Being cost. at the lowest bidder, purchasing erica from the chose highest only paid and SunAmerica $10,000 moving appeal. Having to dismiss the extinguish against a claim itself (Per- $950,000. steps, failed to take of these RMA has that RMA valued over sale, coincidentally, challenge not the defendant waived its to the execution haps $10,000 paid join opinion my I accordingly Tanasse also 209). claim itself. Id. at Because majority colleagues. dismissal,

of our we will not know whether paid fair

SunAmerica value. problems, appears these it

Despite authorizes generally

Utah law

Case Details

Case Name: RMA Ventures California v. SunAmerica Life Insurance

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 11, 2009

Citation: 576 F.3d 1070

Docket Number: 08-4035

Court Abbreviation: 10th Cir.