Susan Goldman v. James Gagnard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 12-2706 & 13-2045
SUSAN GOLDMAN,
Trustee of Goldman Living Trust
U/A/D December 19, 2000,
Plaintiff-Appellee,
v.
JAMES R. GAGNARD and
MICHELLE GAGNARD,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-08843 — John W. Darrah, Judge.
____________________
ARGUED FEBRUARY 18, 2014 — DECIDED JUNE 27, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. This case comes to us with a byzan-
tine procedural history, with a certain Jarndyce v. Jarndyce,
Dickensian flavor. The litigation has spanned ten years and
involves numerous parties, as well as several interlinked
proceedings in different tribunals. But the main question
2 Nos. 12-2706 & 13-2045
underlying the appeal is clear: can a party wait indefinitely
to try to correct an error by a tribunal, or is it required to do
so in a timely manner? We draw upon common-sense prin-
ciples of waiver and estoppel to conclude that the Defend-
ant-Appellants are long past the logical point at which they
could have moved to correct the alleged error by a California
state court in interpreting the arbitral award.
I
Defendant-Appellants James and Michelle Gagnard built
a house in Los Altos, California, then sold the home to Plain-
tiff-Appellee Susan Goldman in January of 2004. What could
have been a simple transaction actually spawned five sepa-
rate judicial proceedings over ten years, owing to water
leaks that sprang in the house and patio, causing extensive
property damage. Over the past ten years, Goldman has
sued the Gagnards and the cast of characters involved with
the construction and sale of the house in varying permuta-
tions and in different tribunals. The course of these proceed-
ings is important to the disposition of this case, so we sum-
marize them at some length.
1. Contractors’ action in California state court
Goldman first filed a civil action in California state court
against the general contractor and subcontractors who built
the property for the Gagnards. During the contractors’ ac-
tion, Goldman discovered that the Gagnards had knowledge
of the water leak problems prior to the 2004 sale. Goldman
elected not to bring the claims against the Gagnards in this
action because of the arbitration clause governing the sales
contract (more on that soon). Instead, Goldman settled her
suit with the contractors for approximately $1.9 million in
Nos. 12-2706 & 13-2045 3
early 2008, then brought an arbitration proceeding against
the Gagnards before the Judicial Arbitration and Mediation
Service in April 2008.
2. Arbitration between Gagnards and Goldman
The parties’ real estate contract provided an arbitration
clause stating that “[a]ny dispute arising out of this transac-
tion shall be decided by neutral binding arbitration” and
that “the decision of the arbitrator is final and binding on all
parties to the arbitration agreement.” The arbitration was
tried before a retired federal judge, who ruled that the
Gagnards owed Goldman damages of $611,875, along with
$475,307 in attorneys’ fees, as well as $90,178 in costs. The
Gagnards argued that the Gagnards’ obligation to Goldman
should be offset by Goldman’s settlement award from the
contractors, but the arbitrator denied this argument, assert-
ing that he could not do so because he did not have the con-
tractors before him. Specifically, he stated:
This, however, is not the forum to determine the
proper allocation of the $1.9 million settlement. The
contractor and subs are not before the Arbitrator. It is
up to Respondents to take the proper legal action in
the proper forum to obtain relief in this regard.
3. Gagnard-initiated California state action (the Campi
litigation)
On March 28, 2010, the Gagnards filed a civil action in
California state court (referred to also as the “Santa Clara
court”) against the real estate brokers who had represented
Goldman and the Gagnards in the purchase and sale of the
property, as well as some of the contractors. Goldman inter-
vened as a plaintiff in that action, seeking to recover the dif-
4 Nos. 12-2706 & 13-2045
ference between the actual cost of repairing the home and
the damages she had been awarded to date. The Gagnards
filed an amended complaint naming Goldman as a defend-
ant, and sought declaratory judgment as to whether they
were entitled to an allocation or offset of Goldman’s arbitra-
tion award to reflect the general contractor’s and subcontrac-
tors’ payments to her. Goldman filed a demurrer as to the
setoff claim. (“Under California practice, a general demurrer
to a complaint is the equivalent of a motion to dismiss under
Fed. R. Civ. P. 12(b) in federal practice.” Garner v. UICI, 508
F.3d 559, 563 n.5 (9th Cir. 2007).) On October 18, 2011, the
Santa Clara court sustained Goldman’s demurrer without
leave to amend (or in federal parlance, with prejudice); it
found that the arbitrator’s statement on the setoff issue was a
final and binding decision as to the offset question, and
thereby denied the Gagnards’ requested setoff. Curiously,
the Gagnards did not appeal this decision. The docket shows
that the Campi case was closed almost two years later, on
June 27, 2013, after a conditional settlement.
4. The FAA case in California federal district court
While the Campi decision on the setoff issue was still
pending, Goldman filed suit in California federal district
court under the Federal Arbitration Act, seeking confirma-
tion of her arbitral award against the Gagnards. The
Gagnards moved for a stay of this confirmation proceeding
until the Santa Clara court decided the setoff claim. The
court allowed the stay. But once the setoff issue was decided
against the Gagnards, the California federal district court
ordered the Gagnards to withdraw the stay motion or ex-
plain why it was not moot. The Gagnards withdrew the stay
request without setting forth any theory of why the motion
Nos. 12-2706 & 13-2045 5
was not moot, and Goldman promptly submitted a pro-
posed form of judgment. On October 27, 2011, the district
court entered an order confirming the award, finding that
the Gagnards had not alleged any grounds under the FAA to
vacate, modify, or correct the Arbitration Award and that
the court itself had found none. The district court also al-
lowed Goldman to recover prejudgment interest, pursuant
to California law.
5. The registration proceeding in Illinois federal dis-
trict court
Finally, in December of 2011, Goldman commenced a
registration proceeding against the Gagnards in Illinois fed-
eral district court to register her arbitral award, then based
on the registered judgment, sought citations to discover and
collect assets. The Gagnards moved to dismiss the citations,
and the motion was denied by the district court. The
Gagnards then moved for reconsideration, and Goldman
filed for turnover of certain liquid assets in the Gagnards’
possession. The district court issued a written opinion deny-
ing the reconsideration motions and granting the turnover
order. The Gagnards appealed those orders to us.
After filing that appeal, the Gagnards paid the sum of
$1.3 million to Goldman in satisfaction of the judgment.
Goldman accepted the payment, and refunded to the
Gagnards the money she had collected in excess of the
judgment balance. The Gagnards then moved for a dismissal
of the citations, and for the court to grant them leave to file a
counterclaim against Goldman. The district court held a
hearing on December 6, 2012, and granted Goldman’s oral
motion to discharge all pending citations. The district court
6 Nos. 12-2706 & 13-2045
also gave the Gagnards leave to file a counterclaim against
Goldman.
On January 3, 2013, the Gagnards filed a “counter-
complaint,” which contained three claims of relief against
Goldman for unjust enrichment. The claims were, respec-
tively:
(1) Goldman was unjustly enriched by a $15,000
payment obtained from a third party as a result of
one of her citations, in excess of the judgment bal-
ance,
(2) $611,875 of the Gagnards’ payment to Goldman
was unjust enrichment because it duplicated
Goldman’s prior recovery from the subcontractors
for the same damages, and
(3) The California federal district court lacked subject
matter jurisdiction to modify the Arbitration
Award to include prejudgment interest.
Goldman moved to dismiss the counter-complaint for failure
to state a claim. The district court dismissed the counter-
complaint with prejudice. The Gagnards filed a timely ap-
peal.
II
The Gagnards frame this appeal as an attempt to finally
get the setoff issue litigated in a substantive way. But it is
perplexing why they waited so long to have the issue litigat-
ed. “Although waiver is a flexible concept with no definite
and rigid meaning,” it is “basically an equitable principle
used by courts to avoid harsh results when a party has con-
ducted itself in a way as to make those results unfair.” Shear-
Nos. 12-2706 & 13-2045 7
son Hayden Stone, Inc. v. Leach, 583 F.2d 367, 370 (7th Cir.
1978). Our doctrine on waiver acknowledges that a right
may be “taken away from its holder as a penalty for failure
to assert it in a clear and timely manner.” United States v.
Johnson, 223 F.3d 665, 669 (7th Cir. 2000).
The Gagnards are correct that they were entitled to raise
the setoff issue. However, as the arbitrator noted when the
issue was presented the very first time, “it [was] up to [the
Gagnards] to take proper legal action in the proper legal fo-
rum to obtain relief in this regard.” And the time to obtain
such relief was not unlimited: they were required to do so
promptly, or risk waiving or forfeiting the issue, especially
because the many related proceedings were interlinked. (The
interlinked nature of the proceedings is relevant because, as
we have reasoned in enforcing equitable principles like col-
lateral estoppel, we find it important to “promote[] judicial
efficiency and prevent[] inconsistent decisions” in multiple
litigations involving the same parties. Donald v. Polk Cnty.,
836 F.2d 376, 381 (7th Cir. 1988).) And indeed, we endeavor
to “promote justice by preventing surprises through the re-
vival of claims that have been allowed to slumber until evi-
dence has been lost, memories have faded, and witnesses
disappeared… . [T]he right to be free of stale claims in time
comes to prevail over the right to prosecute them.” Order of
R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–49
(1944). So it was up to the Gagnards to direct the course of
legal dominoes, by pressing the issue in a timely manner be-
fore the various tribunals involved.
It appears that the filing of the Campi case was the first
step in getting this question adjudicated. Many of the parties
were before one tribunal, including the Gagnards, Goldman,
8 Nos. 12-2706 & 13-2045
and at least the general contractor, who was party to the con-
tractors’ settlement. And the Gagnards put the setoff issue
squarely before the Santa Clara court. They also requested
that the California federal district court wait to confirm the
arbitral award until the Santa Clara court decided the setoff
issue, acknowledging that the Santa Clara court’s decision
on the matter would ripple into the related proceedings. So
far, so good. Then the California state court considered the
setoff argument and, according to the Gagnards, misappre-
hended the implication of the arbitrator’s decision.
We are puzzled by the Gagnards’s inaction in the after-
math of the Santa Clara court’s decision. California civil pro-
cedure does not explicitly provide for appeals from orders
sustaining a demurrer, because such orders do not constitute
a final judgment. See Cal. Civ. Pro. § 904.1. And ultimately,
the Campi litigation would rage on for almost two full years
after that decision, resulting in a partial settlement, not pre-
senting an opportunity for appellate review after the final
judgment. But if the Campi court’s misapprehension was as
grave as the Gagnards claim, and since the California federal
court was waiting to adopt the California state court’s con-
clusion on this matter, the Gagnards could have petitioned
for a writ of mandate. See Cal. Civ. Proc. § 1086 (providing
the availability of a writ of mandate for “all cases where
there is not a plain, speedy, and adequate remedy”); Kurwa
v. Kislinger, 309 P.3d 838, 844 (Cal. 2013) (“Where unusual
circumstances justify it, review of interlocutory judgments
may be obtained by petition for writ of mandate … .”). The
Gagnards could also have tried to litigate the issue substan-
tively in the California federal district court. The federal dis-
trict court offered such an opportunity in ordering that the
Gagnards explain why their stay motion was not moot, else
Nos. 12-2706 & 13-2045 9
withdraw it. By not filing paper before the California district
court explaining why the setoff motion had been wrongly
decided by the Santa Clara court, the Gagnards intentionally
relinquished a clear opportunity to preserve this issue for
further review. This decision constituted waiver. United
States v. Olano, 507 U.S. 725, 733 (1993) (waiver is the “inten-
tional relinquishment or abandonment of a known right”)
(internal quotation marks omitted). Having squandered this
opportunity, as well as whatever opportunity existed in the
Santa Clara court, the Gagnards cannot now claim that the
lack of substantive litigation on the setoff issue was a fate
that was pushed upon them. It was the foreseeable result of
their own inaction.
And having failed to act in a timely manner, the
Gagnards cannot now try to litigate this issue in the federal
district court in Illinois—a tribunal entrusted not with sifting
through the substantive arguments, but simply with enforc-
ing the judgment entered by the entities that invested signif-
icant resources and time in determining which parties owed
what to whom. The purpose of 28 U.S.C. § 1963 is to “assist[]
judgment creators by making it possible for them to pursue
the property of a debtor in satisfaction of a judgment by the
ordinary process of levying execution in any district where
the judgment is registered.” Juneau v. Couvillion, 148 F.R.D.
558, 559 (W.D. La. 1993) (alteration in original) (internal quo-
tation marks omitted). “It was enacted so that creditors and
debtors would be spared the additional cost and harassment
of further litigation which would otherwise be required by
way of an action on the judgment in a district other than that
where the judgment was originally obtained.” Id. (internal
quotation marks omitted). The Illinois court did not have ju-
risdiction to substantively “modify or annul” the judgment
10 Nos. 12-2706 & 13-2045
of the California federal court. Bd. of Trs., Sheet Metal Work-
ers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031,
1034 (7th Cir. 2000) (stating that because 28 U.S.C. § 1963 al-
lows for a judgment to be registered in multiple districts, “it
would not make much sense to allow each of these districts
to modify the judgment … potentially in different ways”
and asserting that our circuit “is among the majority that re-
quire Rule 60(b) motions to be presented to the rendering
court”). In short, this is not the proper place or time in which
to press the argument.
Through the Gagnards’ failure to act, the issue has settled
and hardened. Several opportunities to substantively litigate
this issue existed, and the Gagnards declined to do so. We
decline to belatedly act to correct the alleged misapprehen-
sion of the setoff issue by the Santa Clara court.
III
The prejudgment interest issue is not a winner for the
Gagnards, either. California law allows for awards of pre-
judgment interest by district courts in confirmation proceed-
ings for arbitration awards. See Cal. Civ. Code § 3287(providing that a party may recover prejudgment interest on
an amount awarded when the damages are certain, and the
right to recover those damages is vested). In fact, not only
does California law allow it, but it seems to be an entitle-
ment; a district court would have erred in not awarding that
interest. See SCIE LLC v. XL Reinsurance Am., Inc., 397 F.
App’x 348, 352 (9th Cir. 2010) (discussing a party’s entitle-
ment to prejudgment interest on an arbitration award for
fees and expenses under California law, and the district
court’s error in failing to award prejudgment interest); Fideli-
ty Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th
Nos. 12-2706 & 13-2045 11
Cir. 2004) (stating that California law provides that “pre-
judgment interest is available from the date the arbitration
panel renders its award”). And it is a well-established con-
cept that “[c]ourts do not lack authority to award interest
where an arbitration award is silent… . [The arbitrator’s]
failure to speak on interest otherwise does not constitute a
denial of interest on other parts of the award.” Lagstein v Cer-
tain Underwriters at Lloyd’s of London, 725 F.3d 1050, 1055 (9th
Cir. 2010). The California district court acted permissibly in
awarding the prejudgment interest, and the Illinois district
court acted correctly in dismissing the Gagnards’ argument
against the award.
IV
We decline to address the arguments regarding the turn-
over order substantively. “The Constitution limits our juris-
diction to live cases and controversies. A case is moot, and
thus falls outside of the judicial power conferred in Article
III, if the outcome will no longer settle an active dispute
about the parties’ rights.” Aljabri v. Holder, 745 F.3d 816, 820
(7th Cir. 2014) (citations omitted). “No matter how vehe-
mently the parties continue to dispute the lawfulness of the
conduct that precipitated the lawsuit, the case is moot if the
dispute is no longer embedded in any actual controversy
about the plaintiffs’ particular legal rights.” Already, LLC v.
Nike, Inc., 133 S.Ct. 721, 727 (2013) (internal quotation marks
omitted). Because the Gagnards chose to pay the entirety of
the judgment voluntarily, there is not “any effectual relief
whatever” we could grant to the Gagnards even if they were
to prevail in this argument. See Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs
while a case is pending on appeal that makes it impossible
12 Nos. 12-2706 & 13-2045
for the court to grant any effectual relief whatever to a pre-
vailing party, the appeal must be dismissed.”) (internal quo-
tation marks omitted). Goldman is no longer seeking the
turnover of Michelle Gagnard’s discovered assets, so we
cannot order Goldman to cease pursuing those assets. Ac-
cordingly, we dismiss this portion of the appeal as moot.
V
For the reasons stated above, we AFFIRM the judgment of
the district court, and DISMISS the appeal of the turnover or-
der.