United States v. Nipper

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 17 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-5094
(D.C. No. 98-CV-526-EA)
TIMOTHY LEE NIPPER, separately (N.D. Okla.)
and as trustee for the Proprietor
Property Trust,
Defendant-Appellant,
and
THOMAS EUGENE NIPPER, as
trustee for the Proprietor Property
Trust and as nominee of Timothy
Lee Nipper; MELLON MORTGAGE
COMPANY, as mortgagee,
Defendants.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
Timothy Lee Nipper appeals from two rulings of the district court in the
underlying case brought by the United States to reduce tax assessments against
appellant to judgment and set aside a real property conveyance so as to foreclose
upon it. First, he challenges the district court’s denial of his motion to strike all
deposition testimony elicited from his former wife, Dawn Lynn Lang, as violative
of the marital confidential communications privilege. Second, he challenges the
district court’s grant of summary judgment to the government. He argues that the
government presented insufficient evidence to support its assessments for tax
years 1981 through 1985. We have jurisdiction over this appeal by virtue of
28 U.S.C. § 1291.
We review the district court’s ruling on the motion to strike Ms. Lang’s
deposition testimony for abuse of discretion, see Lighton v. Univ. of Utah ,
209 F.3d 1213, 1227 (10th Cir. 2000). However, we review the district court’s
application of the law respecting the marital confidential communications
privilege de novo . See Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir.
2003). We also review the grant of summary judgment de novo , applying the
same standards as did the district court in determining whether the government
provided the minimal evidentiary foundation required to support the tax
assessments. See Mann v. United States , 204 F.3d 1012, 1015-16 (10th Cir.
2000); United States v. McMullin , 948 F.2d 1188, 1192 (10th Cir. 1991). Having
-2-
carefully reviewed the record and the parties’ briefs in light of these standards
and the applicable law, we conclude that the district court’s rulings were correct.
For substantially the same reasons contained in the district court’s orders, dated
February 3, 2003, and March 25, 2003, the judgment of the district court
is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
-3-