Lipin v. Wisehart ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 17, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOAN C. LIPIN,
Plaintiff - Appellant,
v. Nos. 18-1060 & 18-1176
(D.C. No. 1:16-CV-00661-RBJ-STV)
ARTHUR DODSON WISEHART; ERIN (D. Colo.)
JAMESON; ELLEN E. WISEHART;
RICHARD [RHJAKOB] KREYCIK,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MORITZ, and EID, Circuit Judges.
_________________________________
These consolidated appeals arise from a dispute over the ownership of real
property in Delta County, Colorado (Property). Appellant Joan C. Lipin claims to
own the Property and brought this diversity action against two of her step-children
and their spouses seeking to eject them from their homes and businesses on the
Property. On cross-motions for summary judgment, the district court held the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
undisputed facts establish that Lipin does not own the Property, which is instead
owned by a trust established by the step-children’s grandmother. After the district
court entered summary judgment against Lipin, she appealed the final judgment and
several post-judgment matters. In response, the defendant-appellees have requested
that we find Lipin’s appeals frivolous and impose sanctions. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm and find Lipin’s appeals are frivolous.
BACKGROUND
The following facts are undisputed unless otherwise stated:
A. The Trust
Dorothy Wisehart established the Dorothy R. Wisehart Trust (Trust) in Indiana
in May 1987, naming herself and her son, Arthur McKee Wisehart (AMW), as
co-trustees. She intended for the Trust assets to qualify for the $1 million
“Generation Skipping Transfer Exclusion” for federal estate tax purposes and
therefore directed in the Trust Agreement that $1 million should remain in the Trust
upon her death, R. Vol. 3 at 87, and that AMW’s children and his wife, Elizabeth,
would become beneficiaries of income from these assets. The Trust Agreement
further provided AMW with general authority to appoint, that is disburse, any Trust
assets that exceeded $1 million at the time of her death. Dorothy expressly provided
in the Trust Agreement that issues relating to it and dispositions from the Trust were
to be determined by Indiana law.
Dorothy died in 1993, at which point the Trust became irrevocable and AMW
became the sole Trustee. The value of the Trust assets at this time was less than
2
$1 million. Pursuant to the terms of the Trust Agreement, Elizabeth and AMW’s four
children, Arthur Dodson Wisehart (ADW), Ellen E. Wisehart, C. Winston Wisehart,
and William M. Wisehart, became the Trust’s income beneficiaries. ADW, Ellen
Wisehart and their spouses are the defendant-appellees in this action.
B. The Property
The Property consists of four parcels in or near Paonia, Colorado. In 1992,
Morning Sun Farm Trust (Morning Sun), which consisted of Ellen Wisehart and her
husband, Richard [Rhjakob] Kreycik (Jacob), bought the Property from Burt and
Dorothea Tucker. As part of this transaction, Morning Sun executed a promissory
note to the Tuckers (Tucker Note) and a deed of trust (Tucker DOT) that secured its
payment. The Property became part of the Trust in 1995 when Morning Sun
conveyed it to the Trust by quit claim deed.
The following year, Morning Sun, the Tuckers, and AMW (both individually
and as trustee for the Trust), entered into an amendment to the Tucker Note and
Tucker DOT (Tucker Amendment). The Tucker Amendment released Morning Sun
and the Trust as obligors under the Tucker Note and provided that AMW individually
was responsible for paying the Note. Under the Amendment, the Tucker DOT
continued to secure the Note. The parties agree that the Tucker Note was ultimately
paid in full, but dispute whether AMW paid off the Note with his own funds.
C. Appointment of Co-Trustees
In November 2009, four of the five income beneficiaries of the Trust entered
into an agreement, titled “Appointment of Co-Trustee,” that provided for AMW’s
3
removal as trustee for the Trust and the appointment of him and his son, ADW, as co-
trustees. R. Vol. 3 at 123-28. As its basis, the document cites Article V, paragraph Q
of the Trust Agreement, which provides for removal of a trustee and appointment of a
successor trustee upon the written request of not less than three-fourths of the Trust’s
current income beneficiaries. AMW, an attorney with more than 40 years of legal
experience, also signed the Co-Trustee agreement to accept his appointment as a
co-trustee.
D. AMW’s Marriage to Lipin and Their Actions Regarding the Property
In 2013, AMW’s wife, Elizabeth, died, leaving AMW’s four adult children as
the income beneficiaries of the Trust. By this time, two of the children and their
spouses, Ellen Wisehart, Jacob Kreycik, ADW and his wife, Erin M. Jameson,
(collectively “Defendants”) lived on the Property. Then and now, ADW and Erin
also operate the Wisehart Springs Inn there.
In March 2015, AMW married the plaintiff-appellant, Joan C. Lipin, a former
client who had also worked for him as a paralegal. Lipin has nearly two decades of
experience as an active pro se litigant in federal and state courts in the Northeast, and
reports that she is a law school graduate.
Shortly after marrying Lipin, AMW, then a New Jersey resident, sued his sons
ADW and Winston and the Wisehart Springs Inn in the United States District Court
for the District of New Jersey. In his pro se complaint, AMW alleged his sons and
the Inn had entered into a racketeering enterprise to steal and misappropriate real and
personal property belonging to him, including the Property. See Wisehart v.
4
Wisehart, No. 15-2768 (ES), 2015 U.S. Dist. LEXIS 172577, at *1-2 (D.N.J. Dec. 29,
2015). The New Jersey district court dismissed the suit for improper venue but
allowed AMW to amend his complaint. See id. at *15. After AMW did so, the
defendants again moved to dismiss for improper venue or to transfer the case to the
District of Colorado because the primary focus of the suit is the Property. See id.,
2017 WL 2267262, at *3, *4 (D.N.J. May 24, 2017). The New Jersey district court
granted the motion to transfer, see id. at *4, and this action is currently pending in the
United States District Court for the District of Colorado.
Meanwhile, AMW took additional action with respect to the Property after
initiating Wisehart v. Wisehart. First, in May 2015, AMW recorded two notices in
Delta County in which he stated that he was the sole trustee for the Trust and that the
Trust had transferred the Property to him by warranty deed. Second, in January 2016
either he or Lipin recorded four quit-claim deeds, one for each parcel of the Property,
purporting to convey the Property from AMW to Lipin. AMW did not consult with
or notify ADW or his other children in advance of these actions. Notwithstanding
these filings, Delta County’s property records continue to reflect that the Trust owns
the Property.1
1
This may be because ADW had previously recorded a “Trust Affidavit” in
Delta County in which he reported that he and AMW were co-trustees for the Trust
and that “[t]he Trust Agreement requires the signatures of both Trustees to make any
transactions on behalf of the Trust.” R. Vol. 3 at 129. Colorado law allows trustees
to record such a statement of authority with respect to real property held in a trust’s
name, Colo. Rev. Stat. § 38-30-108.5, and provides that the statement is prima facie
evidence of the authority of persons to act on behalf of the trust to convey or
otherwise affect title to such property, see id. § 38-30-172.
5
E. This Action
In February 2016, Lipin informed Defendants by letter that she owned the
Property, that they were trespassing and illegally operating Wisehart Springs Inn
there, and that she was listing at least three of the Property’s four parcels for sale.2
ADW, in his capacity as co-trustee for the Trust, responded on March 16, 2016 by
filing an action in the Colorado District Court for Delta County (State Court Action)
against Lipin and AMW, individually and in his capacity as co-trustee for the Trust,
seeking a declaration that AMW’s notices and quit-claim deeds regarding the
Property were of no effect and that the Trust still owned the Property. Lipin, acting
pro se, responded five days later by filing the present action, asserting claims for
trespass and ejectment against the Defendants and requesting that the court eject
them from the Property and award her $6 million in damages.
Defendants promptly moved to dismiss or stay this action under the Colorado
River abstention doctrine, which allows a federal court in some circumstances to
dismiss or stay a federal action in deference to a pending parallel state court
proceeding. See Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994). The
magistrate judge recommended that the district court grant the motion for reasons of
judicial economy. But several months later the district court rejected this
recommendation and denied Defendants’ motion upon determining that in the interim
the state court clerk had entered default against AMW and Lipin (who are appearing
2
The Delta County assessor reportedly valued the Property at this time at
approximately $738,000. R. Vol. 3 at 108.
6
pro se there) because, though they were heavily engaged in the State Court Action,
they had opted not to file a responsive pleading. The district court reasoned that if
and when the state court entered default judgment, this judgment likely would not
have preclusive effect, thereby negating the judicial economy of deferring to the
State Court Action.3
In September 2017, Lipin moved for summary judgment on her claims.
Defendants responded and also filed a cross-motion for summary judgment. Both of
Defendants’ filings were supported by an affidavit by Rebecca W. Geyer, a licensed
Indiana attorney and board-certified trust and estate specialist (Geyer Affidavit).
In February 2018, the district court denied Lipin’s summary judgment motion,
granted Defendants’ cross-motion, and entered judgment for Defendants. In doing
so, the court found there were no material disputed facts and that as a matter of law
AMW and ADW were co-trustees of the Trust pursuant to the Appointment of
Co-Trustee document and that AMW had no right as a co-trustee to convey the
Property to himself individually. It further found that even if AMW were the sole
trustee, as Lipin argued, he still lacked authority to convey the Property out of the
Trust because by the terms of the Trust Agreement his power to appoint Trust assets
to himself only applied to any amount over $1 million that was in the Trust as of the
date of Dorothy Wisehart’s death. The district court based these conclusions in part
3
A year and a half later, the State Court Action is still pending, and though
AMW and Lipin remain in default, they are actively engaged in challenging the
proceedings at the trial court and appellate levels.
7
on the opinions and reasoning included in the Geyer Affidavit. In accordance with
these conclusions, the district court held the Trust continued to own the Property
because AMW held no interest in it when he quit-claimed his interest to Lipin in
2016. As a result, the district court held, Lipin’s trespass and ejectment claims
necessarily failed and Defendants were entitled to summary judgment. The district
court entered final judgment against Lipin the same day.
Lipin immediately filed a notice appealing the district court’s judgment. This
appeal was docketed as No. 18-1060. A month later, Lipin filed a motion to recuse
the district court judge for bias based largely on statements included in his
post-judgment order denying Defendants’ motion to recover expert witness fees.
After the district court denied her motion, Lipin filed a second notice of appeal,
docketed as No. 18-1176, this time naming the district court’s recusal order, its order
denying Defendants’ expert fee motion, and its refusal to disqualify and impose
sanctions on Defendants’ counsel and take other actions she had requested earlier in
the case. At Defendants’ request, we consolidated Lipin’s appeals. But because
Lipin had already filed her opening brief in No. 18-1060, we allowed her to file a
supplemental brief limited only to the issues she sought to appeal in No. 18-1176.
We also directed her not to repeat arguments included in her opening brief. Lipin did
not comply with these directions in her supplemental brief.
DISCUSSION
Lipin has filed over 100 pages of argument in connection with her
consolidated appeals, much of which is rambling, disjointed and irrelevant to the
8
proceedings in this case. To the extent we can discern them, we address the relevant
issues Lipin raised on appeal below.4
A. Summary Judgment Decision
We review the district court’s grant of summary judgment to Defendants
de novo, viewing the factual record and making reasonable inferences from it in the
light most favorable to Lipin as the non-moving party. Bird v. W. Valley City,
832 F.3d 1188, 1199 (10th Cir. 2016). “The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute
is genuine when the evidence is such that a reasonable jury could return a verdict for
the nonmoving party, and a fact is material when it might affect the outcome of the
suit under the governing substantive law.” Bird, 832 F.3d at 1199 (brackets and
internal quotation marks omitted).
Lipin argues the district court’s grant of summary judgment to Defendants
must be reversed for several reasons, all of which are meritless. First, she asserts
reversal is required because the district court improperly considered and relied on the
4
We ordinarily construe arguments by pro se parties liberally, recognizing
that they should held to a less stringent standard than formal arguments drafted by
lawyers. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But we
do not extend this liberal construction to attorneys who choose to represent
themselves, see Comm. on the Conduct of Attorneys v. Oliver, 510 F.3d 1219, 1223
(10th Cir. 2007), which is pertinent here because Lipin claims to be an attorney. But
the choice between liberal or standard construction of her arguments is of no
consequence in this case, because our conclusions regarding her arguments would be
the same under either construction.
9
Geyer Affidavit. In her affidavit, Geyer opined, among other things, that under the
terms of the Trust Agreement and Indiana law: (1) the 2009 appointment of AMW
and ADW as co-trustees was valid; (2) Indiana law requires co-trustees to act jointly
and thus AMW could not convey the Property out of the Trust without ADW’s
approval; and (3) even if AMW was the sole trustee of the Trust, he did not have
general power of appointment or other authority under the Trust Agreement to
transfer Trust assets, including the Property, to himself. Geyer did not provide any
opinions regarding Colorado law. She also described the factual and legal basis for
each of her opinions, identified her factual assumptions, and provided a copy of her
curriculum vitae as part of her affidavit.
Lipin asserts the Geyer Affidavit was “inadmissible, unethical, and fraudulent”
and therefore should not have been considered by the district court. Aplt. Suppl. Br.
at 19. In support of these claims, Lipin argues primarily that: (1) Geyer’s opinions
are irrelevant to her trespass and ejectment claims; (2) Geyer improperly relied on
Indiana law in opining on Trust issues; (3) Geyer is not qualified to opine on trespass
and ejectment under Colorado law; and (4) Geyer improperly relied on fraudulent
Delta County property records. Lipin also asserts the district court should not have
considered the Geyer Affidavit because Defendants failed to disclose Geyer as an
expert witness or identify the facts and data on which she relied as required by
Fed. R. Civ. P. 26(a)(2)(A).
These arguments fail on multiple grounds, beginning with the fact that Lipin
did not present them to the district court or make any other challenge there to the
10
district court’s consideration of the Geyer Affidavit.5 Lipin also does not argue plain
error in the district court’s consideration of the Affidavit.6 In these circumstances,
we ordinarily do not consider the newly raised issue on appeal. See, e.g., Margheim
v. Buljko, 855 F.3d 1077, 1088 (10th Cir. 2017) (“Normally when a party presents a
new argument on appeal and fails to request plain error review, we do not address
it.”); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128, 1130-31 (10th Cir. 2011)
(explaining that the failure to argue plain error “marks the end of the road for an
argument for reversal” presented for the first time on appeal).
Second, even if Lipin had properly preserved her arguments regarding the
Geyer Affidavit for appeal, she failed to adequately present these issues for our
review. Fed. R. App. P. 28 required Lipin to include in her opening brief a statement of
her “contentions and the reasons for them, with citation to the authorities and parts of the
record on which [she] relies.” Fed. R. App. P. 28(a)(8)(A). Lipin did not comply with
5
Although Lipin mentioned the Geyer Affidavit in her response to
Defendants’ cross-motion, she only alleged there that Geyer made misstatements in
her factual assumptions because she relied on altered Delta County property records
and non-certified information in a title report for the Property. See R. Vol. 3 at 6-7.
Lipin did not include any argument on the admissibility or validity of Geyer’s
opinions in light of these or any other allegations. As discussed below, Lipin also
errs in alleging that Geyer relied on these documents.
6
Although Lipin freely uses the term “plain error” in referring to this issue in
her opening brief, she does not present argument, reasoned or otherwise, attempting
to show that the district court committed plain error in its consideration of the Geyer
Affidavit. See United States v. Bustamante-Conchas, 850 F.3d 1130, 1137 (10th Cir.
2017) (defining “plain error” as “(1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation of
judicial proceedings” (internal quotation marks omitted)).
11
these requirements in her arguments concerning the Geyer Affidavit because her
arguments are conclusory, devoid of reasoning, and not supported by citations to relevant
legal authority or portions of the record. See, e.g., Nixon v. City & Cty. of Denver,
784 F.3d 1364, 1370 (10th Cir. 2015) (“A brief must contain an argument consisting of
more than a generalized assertion of error, with citations to supporting authority.”
(brackets and internal quotation marks omitted)); Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005) (holding issues are inadequately briefed if
they are supported by “conclusory allegations with no citations to the record or any
legal authority”). We deem such inadequately briefed arguments waived and generally
do not review them on appeal. See, e.g., Nixon, 784 F.3d at 1368 (arguments “not
adequately developed in a party’s [opening] brief” are waived); Garrett, 425 F.3d at 841
(same).
Finally, even if we were to overlook these deficiencies, Lipin’s challenges to
the Geyer Affidavit and the district court’s consideration of it are substantively
meritless. For example, Lipin’s contention that Geyer’s opinions are irrelevant to
this action is meritless on its face because her alleged ownership of the Property
depends on AMW’s authority to convey the Property out of the Trust to himself. Her
assertion that Geyer improperly relied on Indiana law is meritless in light of the Trust
Agreement’s express provision that issues concerning it should be determined under
Indiana law.7 Lipin’s claim that Geyer was unqualified to opine on the issues she
7
Lipin declares that New York law instead governs Trust issues, because
Dorothy allegedly moved to New York before her death and executed an unrelated
12
addressed because she is not licensed in Colorado or an expert on Colorado property
conveyance law is similarly meritless.
Lipin suggests the factual assumptions Geyer reported in stating her opinions
are inaccurate, but she does not deny any particular assumed fact or direct us to
evidence disputing any of them.8 She is also mistaken in asserting that Geyer relied
on Delta County’s property records, improperly or otherwise, because Geyer neither
referenced nor relied on these documents (except to state the Property’s assessed
value) in her opinions or factual assumptions. Lipin’s further assertion that the
district court erred in considering the Geyer Affidavit because Defendants failed to
disclose Geyer as an expert witness in accordance with Fed. R. Civ. P. 26(a)(2)(B)
also has no support in the record, which in fact shows that Defendants disclosed
Geyer, her opinions and other required information in accordance with this rule on
October 11, 2017, the deadline the district court had set for expert witness
disclosures.9
amendment to the Trust Agreement there, but provides no authority that these
circumstances overcome Dorothy’s clearly expressed intent in the Trust Agreement
that Indiana law would apply.
8
The factual assumptions Geyer reported concerned the Wisehart family tree,
the dates on which relevant events occurred, the assessed value of the Property,
whether the Trust- and Property-related documents Geyer reviewed were true and
accurate copies of the original documents, and whether any of the relevant parties
had taken specified actions that might affect her opinions.
9
Contrary to Lipin’s unsupported claims, it is of no consequence that this
expert witness disclosure, which consisted almost entirely of the Geyer Affidavit and
its attachments, occurred nine days after Defendants provided these same materials to
Lipin with their response to her summary judgment motion and their cross-motion.
13
Lipin’s other challenges to the district court’s summary judgment decision are
equally unsupported and meritless. Her assertion that the district court’s Property
ownership determination is irrelevant to her trespass and ejectment claims is
spurious,10 as is her claim that the district court’s summary judgment decision was
contrary to its earlier decision denying Defendants’ motion to dismiss. Her claim
that the 2009 appointment of ADW as a co-trustee was legally flawed or invalid as a
result of fraud was properly rejected by the district court because it is not supported
by evidence or a plain reading of the Trust Agreement and Appointment of
Co-Trustee document. We also agree with the district court that Lipin’s claim that
AMW acquired title to the Property in 2001 by personally paying off the Tucker Note
is factually unsupported (and Defendants also dispute AMW’s payment), but more
importantly is immaterial because Lipin fails to provide any reasoned argument or
authority that title to the Property would transfer from the Trust to AMW
individually simply because he paid off the Note. We also see nothing in the Tucker
Amendment, the vehicle by which AMW agreed to pay the Note, that supports
Lipin’s contention.
Finally, we reject Lipin’s most recent argument challenging the district court’s
summary judgment decision, which is that the Trust never owned the Property at all
because the 1992 conveyance of the Property from Morning Sun to the Trust was a
10
Proof of ownership is an element of Lipin’s trespass claim, see Hoery v.
United States, 64 P.3d 214, 217 (Colo. 2003), as well as her common law ejectment
claim, see French v. Golston, 100 P.2d 581, 583 (Colo. 1940) (“It is fundamental that a
plaintiff in ejectement [sic] must recover, if at all, on the strength of his own title”).
14
“fraudulent-transfer.” See Aplt. Reply Br. at 18. This argument fails for various
reasons, including that: (1) Lipin did not present it in her summary judgment
argument to the district court; (2) she improperly raised it for the first time in this
court in her reply brief, see, e.g., White v. Chafin, 862 F.3d 1065, 1067 (10th Cir.
2017) (holding party “waived []his contention by waiting to present it for the first
time in his reply brief”); and (3) Lipin provides no factual or legal support for her
new argument; which is (4) inconsistent with her representations earlier in this
action, see R. Vol. 2 at 5, 9 (Lipin identifies the Property’s conveyance from
Morning Sun to the Trust as an undisputed fact).
Lipin mentions other various challenges to the district court’s grant of
summary judgment in her briefs, which we also find to be meritless. Accordingly,
we affirm the district court’s determination that the Trust owns the Property and its
grant of summary judgment to Defendants and against Lipin on this basis.11
B. Other Issues on Appeal
We also find no merit in Lipin’s other arguments on appeal.
Lipin contends the district court violated her due process rights because it
never ruled on her April 10, 2017 motion requesting, among other things, that
Defendants’ answer be stricken and that default be entered against them. This
contention is meritless, because the district court denied Lipin’s motion making these
11
Because we affirm the district court on this ground, we need not reach the
additional arguments Defendants advance in support of affirmance.
15
requests in an order entered on April 28, 2017.12 Her claim that her due process
rights were violated by the district court’s denial of her other four motions for entry
of default and default judgment fails because Defendants had timely filed a motion to
dismiss or answer in each instance.
Lipin also argues the district court erred in denying her post-judgment motion
that it recuse itself for bias pursuant to 28 U.S.C. § 455(a). We find no abuse of
discretion in this decision. See United States v. Cooley, 1 F.3d 985, 994 (10th Cir.
1993) (stating standard of review). Contrary to Lipin’s claims, we see nothing in the
district court’s order denying Defendants’ expert witness fee motion that calls its
impartiality into question. The same is true with respect to its decision to disregard
Lipin’s lengthy diatribe against Defendants’ counsel in her opposition to Defendants’
fee motion, as the district court correctly held these arguments were not germane to
the issue before it, which was whether the requested fees should be awarded. And, of
course, the district court’s entry of summary judgment against Lipin, and her
disagreement with this ruling, are insufficient to establish bias. See, e.g., Bixler v.
Foster, 596 F.3d 751, 762 (10th Cir. 2010).
12
This text-only order specified that it denied Docket Entry No. 54,
see R. Vol. 1 at 6 (Apr. 28, 2017 Order docketed at ECF No. 57), which was Lipin’s
combined motion to vacate the scheduling order, strike Defendants’ answer and enter
default against all Defendants, see id. (Apr. 10, 2017 Motion docketed at ECF
No. 54); Suppl. R. Vol. 3 at 13. Lipin is incorrect in assuming that the abbreviation
of her motion’s lengthy title to “Motion to Vacate” in the April 28, 2017 docket entry
for the order denying her motion signifies that the court only denied a portion of her
motion.
16
Lipin further contends the district court committed plain error in failing to
disqualify Defendants’ counsel and sanction him personally for various alleged
misdeeds. The short answer to this argument is that Lipin never filed a motion
seeking to disqualify or sanction Defendants’ counsel.13 Instead, she made these
requests in her opposition to Defendants’ post-judgment fee motion, which the
district court properly disregarded as described above, and in a later-filed
“Declaration” in which she attacked her own attorney of record as well as
Defendants’ counsel. In the absence of a motion, we find no error in the district
court’s failure to act on this request.14 See Fed. R. Civ. P. 7(b)(1) (“A request for a
court order must be made by a motion.”); Garman v. Campbell Cty. Sch. Dist. No. 1,
630 F.3d 977, 986 (10th Cir. 2010) (denying request contained in response to motion
because it was not a proper written motion).
DEFENDANTS’ REQUEST FOR SANCTIONS
In their response brief, Defendants request that we find Lipin’s appeals to be
frivolous under Fed. R. App. P. 38 and impose monetary sanctions against her,
13
We also note that Lipin’s accusations against Defendants’ counsel are
deficient because they are conclusory and not supported by evidence or relevant
authority.
14
In addition, to the extent Lipin’s declaration could be construed as a motion
to disqualify and sanction Defendants’ counsel, the district court likely lacked
jurisdiction to address it because it was filed after her first notice of appeal and on
the same day as her second notice, in which she sought appellate review of the
district court’s failure to take these actions against Defendants’ counsel. See Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of
appeal . . . confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.”).
17
including an award of their reasonable attorney fees.15 Fed. R. App. P. 38 authorizes
a court of appeals to award “just damages and single or double costs to the appellee”
if it determines an appeal is frivolous. An appeal is frivolous under Rule 38 “when
the result is obvious, or the appellant’s arguments of error are wholly without merit.”
Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (en banc) (internal
quotation marks omitted). Sanctions are imposed under Rule 38 “to penalize an
appellant who takes a frivolous appeal and to compensate the injured appellee for the
delay and added expense of defending the district court’s judgment.” Burlington N.
R.R. Co. v. Woods, 480 U.S. 1, 7 (1987). “Just damages” under Rule 38 therefore
may include attorney fees, In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d 1010,
1026 (10th Cir. 2017), though we may also “award a fixed amount reflecting an
appropriate penalty rather than a precise sum based upon proof of the appellee’s
actual attorney fees,” State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573,
1581-82 (Fed. Cir. 1991) (awarding appellee a fixed sum to spare it and the court
from additional litigation regarding the amount of attorney fees). Lipin’s status as a
15
Defendants also request sanctions under 10th Cir. R. 46.5, which authorizes
monetary sanctions and an award of reasonable attorney fees against any person,
including an unrepresented party, who signs a paper that violates the required
certifications that the paper is not being presented for any improper purpose, the
issues presented are warranted by existing law or a nonfrivolous argument for
changing existing law, and that factual contentions or denials presented in the paper
are supported by the record. See 10th Cir. R. 46.5(B), (C). We need not consider
sanctions pursuant to this rule if we find sanctions are warranted under Fed. R. App.
P. 38.
18
pro se litigant does not insulate her from the imposition of sanctions under this rule.
See, e.g., Wheeler v. Comm’r, 521 F.3d 1289, 1291-92 (10th Cir. 2008).
We have no difficulty concluding Lipin’s appeals are frivolous under Rule 38.
As discussed above, her arguments on appeal are wholly without merit. In addition,
Lipin devotes a substantial portion of her three briefs to unsupported and often
irrelevant accusations that Defendants, AMW’s other children, and their different
attorneys in this action, the State Court Action, and the federal Wisehart v. Wisehart
action engaged in fraud, forgery, unethical filings, abuse of the judicial process,
obstruction of justice, vexatious litigation, and/or violations of Lipin’s constitutional
rights by defending themselves against Lipin and AMW’s claim that Lipin owns the
Property. Further, Lipin included in her briefing numerous accusations against
Defendants and AMW’s other children that have nothing to do with the Property or
this action at all. These arguments are unsupported, abusive, and irrelevant to this
appeal, and provide additional grounds for our finding that Lipin’s appeals are
frivolous.
Before we can impose sanctions for a frivolous appeal, the person who may be
subject to sanctions must receive notice that sanctions are being considered and an
opportunity to respond. Braley, 832 F.2d at 1514-15; see Fed. R. App. P. 38 (stating
court may award sanctions “after a separately filed motion or notice from the court
and reasonable opportunity to respond”). Because Defendants did not present their
request for sanctions in a separately filed motion, Lipin has not had an opportunity to
respond to their request. We could provide such an opportunity by ordering Lipin to
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show cause as to why we should not sanction her under Rule 38, but we would also
like to receive additional information from Defendants to help inform our sanctions
decision.
Accordingly, we invite Defendants to file a separate motion for sanctions
against Lipin under Rule 38 no later than fifteen days from the date of this order and
judgment. In this motion, Defendants should describe in general terms the amount
and nature of the costs and legal fees they incurred in defending these appeals, but
they need not provide an itemization of the tasks undertaken or the fees requested.
Lipin shall have fifteen days from the date Defendants file a motion for sanctions to
show cause why she should not be sanctioned. Defendants and Lipin shall comply
with the length limits in Fed. R. App. P. 27(d)(2) in these filings and need not
provide hard copies of them.
CONCLUSION
The district court’s judgment is AFFIRMED. Defendants are invited to move
for an award of sanctions against Lipin as described above. Lipin’s May 7, 2018
“Request That Judicial Notice Be Taken of the ‘Brake-Pad’ the District Court Judge
Directed the Clerk of Court to Send to Appellant on May 2, 2018, With Intent to
Intimidate Joan C. Lipin in the Aforesaid Appeals,” is DENIED.
Entered for the Court
Per Curiam
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