Katherine Dauphin v. Beverly Hennager ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1556
KATHERINE R. DAUPHIN,
Plaintiff - Appellee,
v.
BEVERLY L. HENNAGER,
Defendant - Appellant,
and
LOUIS A. JENNINGS,
Defendant.
No. 17-1794
KATHERINE R. DAUPHIN,
Plaintiff - Appellee,
v.
BEVERLY L. HENNAGER,
Defendant - Appellant,
and
LOUIS A. JENNINGS,
Defendant.
No. 17-1850
KATHERINE R. DAUPHIN,
Plaintiff - Appellee,
v.
LOUIS A. JENNINGS,
Defendant - Appellant,
and
BEVERLY L. HENNAGER,
Defendant.
No. 17-1990
KATHERINE R. DAUPHIN,
Plaintiff - Appellee,
v.
BEVERLY L. HENNAGER,
Defendant - Appellant,
and
LOUIS A. JENNINGS,
Defendant.
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Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge; Theresa C. Buchanan, Magistrate Judge.
(1:15-cv-00149-LO-TCB)
Submitted: November 15, 2017 Decided: November 29, 2017
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Nos. 17-1556 and 17-1990, dismissed; Nos. 17-1794 and 17-1850, affirmed by
unpublished per curiam opinion.
Beverly L. Hennager, Louis A. Jennings, Appellants Pro Se. Stephen Grey Cochran,
ROEDER & COCHRAN, PLLC, McLean, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
These consolidated appeals arise from litigation between Katherine R. Dauphin, a
general and limited partner in the Jennings Family Limited Partnership (the Partnership),
who brought an action for dissolution of the Partnership against Louis A. Jennings and
Beverly L. Hennager (Appellants), who are also general and limited partners of the
Partnership. Although the parties settled the underlying dissolution action, Appellants
seek to challenge in these appeals several district court orders stemming from the
winding up of the Partnership’s affairs. After reviewing the parties’ filings, we dismiss
Appeal Nos. 17-1556 and 17-1990, and affirm in Appeal Nos. 17-1794 and 17-1850.
In Appeal No. 17-1556, Hennager seeks to challenge the district court’s orders
denying Appellants’ motion to stay any action on the disposition of certain Partnership
property (motion to stay order), denying her motion for disbursement of Partnership
funds (disbursement order), and ordering that certain counsel fees and costs be paid out
of Partnership funds (fee order). Hennager has also filed an application to proceed in
forma pauperis in this appeal, as well as motions for attorneys’ fees, for leave to file an
oversized informal brief, for release of funds to pay for legal representation, and to
compel disclosure and supplement the record. Hennager filed her notice of appeal
seeking to challenge these orders on April 27, 2017, however, nearly two months before
the district court entered its final order. Because the disbursement and fee orders are not
final or appealable interlocutory or collateral orders over which this court has
jurisdiction, see 28 U.S.C. §§ 1291-1292 (2012); Fed. R. Civ. P. 54(b); Cohen v.
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Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949), we dismiss this appeal in part
as interlocutory.
The district court’s motion to stay order authorized the Special Master to sell
certain Partnership property, however, and we thus have jurisdiction over Hennager’s
challenge to that order. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)
(holding that a court of appeals has jurisdiction over a small category of rulings if the
rulings “are conclusive,” “resolve important questions separate from the merits,” and “are
effectively unreviewable on appeal from the final judgment in the underlying action”).
Because Hennager also challenges the motion to stay order in Appeal No. 17-1794, we
find her challenge to the motion to stay order in this appeal to be duplicative.
Accordingly, we grant Hennager’s motion for leave to file an oversized informal brief;
deny Hennager’s application to proceed in forma pauperis and her motions for attorneys’
fees, for release of funds, and to compel disclosure and supplement the record; and
dismiss Appeal No. 17-1556 in part as interlocutory, and in part as duplicative.
In Appeal No. 17-1990, Hennager seeks to challenge the magistrate judge’s order
granting Troutman Sanders’ motion to seal documents it attached to an attorney’s
charging lien. Hennager has also filed an application to proceed in forma pauperis, as
well as a motion to stay release of proceeds until final resolution of this appeal (motion
for stay). While parties must consent to a magistrate judge’s authority to issue
dispositive orders, nondispositive matters—such as Troutman Sanders’ motion to seal—
may be referred to a magistrate judge without the parties’ consent. See 28 U.S.C.
§ 636(b)-(c) (2012). If the magistrate judge rules on a dispositive motion pursuant to the
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consent of the parties, that order may be directly appealed to this court. See 28 U.S.C.
§ 636(c)(3) (2012). If a party chooses to challenge a magistrate judge’s ruling on a
nondispositive matter, however, the party must file objections with the district court.
Only after the district court has ruled on those objections may the party appeal an adverse
ruling to this court. See 28 U.S.C. § 636(b)(1).
Troutman Sanders’ motion to seal was a nondispositive matter that was referred
to the magistrate judge without the parties’ consent and, thus, we lack jurisdiction over
the magistrate judge’s order granting the motion to seal. Cf. United States v. Baxter, 19
F.3d 155, 156 (4th Cir. 1994) (holding that the court lacked jurisdiction over appeal from
magistrate judge’s decision because “[f]ederal statutes, federal rules of criminal
procedure, and case law all provide that a federal magistrate’s judgment of conviction
and sentence may only be appealed to a federal district court”). Accordingly, we deny
Hennager’s application to proceed in forma pauperis, dismiss this appeal for lack of
jurisdiction, and deny as moot Hennager’s motion for stay.
In Appeal Nos. 17-1794 and 17-1850, both Appellants seek to challenge the
district court’s final order providing for the distribution of the remaining Partnership
assets, as well as several district court orders preceding the final order. We have
jurisdiction over these appeals. See 28 U.S.C. § 1291 (2012). Given Appellants’
summary and often immaterial arguments raised in their informal briefs, however,
Appellants have waived appellate review of the district court’s dispositive holdings. See
IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003) (“Failure
to present or argue assignments of error in opening appellate briefs constitutes a waiver
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of those issues.”); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(holding that an appellant’s failure to explain the reasons for his claims “with citations to
the authorities and parts of the record on which the appellant relies” amounts to an
abandonment of those claims (internal quotation marks omitted)); see also 4th Cir. Rule
34(b) (requiring us to limit our review to the issues raised in a pro se litigant’s informal
brief).
To the extent that Appellants’ informal briefs could be construed as generally
challenging the district court’s orders instructing the Special Master to sell the
Partnership property, we find those challenges to be moot. See, e.g., Sterling v.
Blackwelder, 405 F.2d 884, 884 (4th Cir. 1969) (holding moot an appeal seeking to
challenge the sale of real property after that property is transferred to a bona fide
purchaser for value and without first filing a supersedeas bond). And to the extent that
Jennings suggests that the district court erroneously determined that he owed the
Partnership approximately $62,000 for money the district court determined was
converted to unauthorized personal use, the district court’s findings are not clearly
erroneous. See Fed. R. Civ. P. 52(a)(6) (providing that factual findings are reviewed for
clear error); see also United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008)
(recognizing that a factual finding is clearly erroneous if the court reviews all the
evidence and “is left with the definite and firm conviction that a mistake has been
committed” (internal quotation marks omitted)). Cf. Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous.”).
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Based on the foregoing, we: (1) grant Hennager’s motion for leave to file an
oversized informal brief, deny Hennager’s application to proceed in forma pauperis and
her motions for attorneys’ fees, for release of funds, and to compel disclosure and
supplement the record, and dismiss Appeal No. 17-1556 in part as interlocutory, and in
part as duplicative; (2) deny Hennager’s application to proceed in forma pauperis and
dismiss Appeal No. 17-1990 for lack of jurisdiction, and deny as moot Hennager’s
motion for stay; (3) grant Hennager’s motion for leave to file an oversized informal brief,
deny her motion for release of funds, and affirm the district court’s final order in Appeal
No. 17-1794; and (4) deny Dauphin’s motion for sanctions against Jennings * and affirm
the district court’s final order in Appeal No. 17-1850. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
No. 17-1556 and No. 17-1990 - DISMISSED;
No. 17-1794 and No. 17-1850 - AFFIRMED
*
In her motion for sanctions, Dauphin insists that Jennings’ appeal is frivolous.
Although we reject the summary assertions raised in Jennings’ appellate filings, this
appeal does not warrant the imposition of sanctions.
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