Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JOHANNA DABBS,
Plaintiff,
v. No. 21-6171 (D.C. No. 5:15-CV-00148-D) SHELTER MUTUAL INSURANCE (W.D. Okla.) COMPANY, a/k/a Shelter Mutual Insurance Co.,
Defendant - Appellee.
------------------------------
VINCENT CALDERON,
Amicus Curiae - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.** _________________________________
Vincent Calderon appeals the district court’s entry of summary judgment for
Shelter Mutual Insurance Company and against Johanna Dabbs. Dabbs, an Oklahoma
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** 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. Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 2
resident and Shelter auto policyholder, caused a car accident in Texas that injured
Calderon. After settlement negotiations between Shelter and Calderon failed,
Calderon sued Dabbs in Texas state court and won a $700,000 judgment against her.
The judgment exceeded Dabbs’s policy limits, so she sued Shelter, asserting that
Shelter’s failure to settle with Calderon was bad faith. Calderon was not a party to
the bad-faith suit.
During that litigation, Dabbs and Shelter foresaw a potential disagreement
about whether Oklahoma or Texas law applied to their dispute, so they filed
simultaneous briefs on the issue. Turns out, they agreed on Oklahoma law. But
Calderon, who had been monitoring the case on the sideline, moved for leave to file
an amicus brief to argue that Texas law should apply. The district court allowed
Calderon to file his amicus brief, though it ultimately sided with Dabbs and Shelter in
finding that Oklahoma law applied.
Four years passed, and the district court entered summary judgment in
Shelter’s favor under Oklahoma law. Dabbs appealed. Dabbs v. Shelter Mut. Ins. Co.,
No. 21-6169 (10th Cir.). Calderon then moved for a new trial (even though there was
no trial) and to amend the judgment. The district court struck this motion because as
an amicus, Calderon was not a party and did not have standing to file motions.
Calderon moved for reconsideration, which the district court also denied. Calderon
appealed. At our request, the parties submitted supplemental briefing on appellate
jurisdiction. We now dismiss Calderon’s appeal for lack of jurisdiction.
2 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 3
“The rule that only parties to a lawsuit, or those that properly become parties,
may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304
(1988) (per curiam) (collecting authorities). Yet this settled rule is not absolute.
Devlin v. Scardelletti, 536 U.S. 1, 7–8 (2002) (collecting cases authorizing certain
nonparty appeals). To that end, we have allowed nonparties to appeal when they
“possess[] a ‘unique interest’ in the outcome of the case and actively participate[] in
the proceedings relating to that interest.” Abeyta v. City of Albuquerque, 664 F.3d
792, 795 (10th Cir. 2011). Because amici curiae are not parties, Kerr v.
Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016) (citing Coal. of Ariz./N.M.
Cntys. for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844 (10th Cir.
1996)), Calderon must satisfy the two-step Abeyta test before we can consider the
merits of his appeal.
But Calderon fails at step one because he has not shown that he has a “unique
interest” in this case. He asserts that his position as Dabbs’s judgment creditor gives
him a unique interest here. In Calderon’s view, if Dabbs prevails against Shelter, he
can satisfy his judgment with the proceeds of Dabbs’s bad-faith claim. He cites our
decision in Plain v. Murphy Family Farms, 296 F.3d 975 (10th Cir. 2002), in
support. Plain was a wrongful-death suit brought by a decedent’s widow. Id. at 977.
The decedent’s children sought to intervene, which the court denied, and they later
asked the court to reconsider its denial. Id. at 978. When the court denied
reconsideration, the children appealed. Id. They voluntarily dismissed the appeal
after learning the district court would not stay the upcoming trial. Id. After a jury
3 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 4
awarded damages, the court invited the children to file an amicus brief on the
distribution of the damages award. Id. The children instead moved for a new trial and
proposed a damages-award distribution. Id. The court denied their motion, rejected
their proposed distribution, and apportioned the damages itself. Id. The children
again moved for a new trial, which was denied. Id. at 979. They appealed again. Id.
Describing the children’s relentless motion practice as creating a
“jurisdictional thicket,” we confirmed our jurisdiction to review the district court’s
order apportioning the damages. Id. We reasoned that the children had a unique
interest in the damages award because they were entitled to wrongful-death damages
under Oklahoma law, they were bound by the district court’s apportionment order,
they promptly opposed the apportionment (on the court’s invitation), and they
appealed at the earliest opportunity. Id. at 979–80. But we lacked jurisdiction to
consider a challenge to the order denying the second motion for a new trial. Id.
at 980. Participating in a case’s disposition on the merits requires timely Rule 24
intervention, and the children should have pursued their first appeal from the district
court’s denial of their motion to intervene. Id. at 980–81. We regarded their second
appeal as improper because the children “fail[ed] to follow proper procedure the first
time.” Id. at 981.
Yet unlike the children in Plain, Calderon is not at all “bound” by the
judgment below, which affects only Dabbs and Shelter.1 The district court, on
1 Calderon makes passing references to res judicata and collateral estoppel but does not analyze how either principle affects him. 4 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 5
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Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JOHANNA DABBS,
Plaintiff,
v. No. 21-6171 (D.C. No. 5:15-CV-00148-D) SHELTER MUTUAL INSURANCE (W.D. Okla.) COMPANY, a/k/a Shelter Mutual Insurance Co.,
Defendant - Appellee.
------------------------------
VINCENT CALDERON,
Amicus Curiae - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.** _________________________________
Vincent Calderon appeals the district court’s entry of summary judgment for
Shelter Mutual Insurance Company and against Johanna Dabbs. Dabbs, an Oklahoma
* 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. ** 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. Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 2
resident and Shelter auto policyholder, caused a car accident in Texas that injured
Calderon. After settlement negotiations between Shelter and Calderon failed,
Calderon sued Dabbs in Texas state court and won a $700,000 judgment against her.
The judgment exceeded Dabbs’s policy limits, so she sued Shelter, asserting that
Shelter’s failure to settle with Calderon was bad faith. Calderon was not a party to
the bad-faith suit.
During that litigation, Dabbs and Shelter foresaw a potential disagreement
about whether Oklahoma or Texas law applied to their dispute, so they filed
simultaneous briefs on the issue. Turns out, they agreed on Oklahoma law. But
Calderon, who had been monitoring the case on the sideline, moved for leave to file
an amicus brief to argue that Texas law should apply. The district court allowed
Calderon to file his amicus brief, though it ultimately sided with Dabbs and Shelter in
finding that Oklahoma law applied.
Four years passed, and the district court entered summary judgment in
Shelter’s favor under Oklahoma law. Dabbs appealed. Dabbs v. Shelter Mut. Ins. Co.,
No. 21-6169 (10th Cir.). Calderon then moved for a new trial (even though there was
no trial) and to amend the judgment. The district court struck this motion because as
an amicus, Calderon was not a party and did not have standing to file motions.
Calderon moved for reconsideration, which the district court also denied. Calderon
appealed. At our request, the parties submitted supplemental briefing on appellate
jurisdiction. We now dismiss Calderon’s appeal for lack of jurisdiction.
2 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 3
“The rule that only parties to a lawsuit, or those that properly become parties,
may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304
(1988) (per curiam) (collecting authorities). Yet this settled rule is not absolute.
Devlin v. Scardelletti, 536 U.S. 1, 7–8 (2002) (collecting cases authorizing certain
nonparty appeals). To that end, we have allowed nonparties to appeal when they
“possess[] a ‘unique interest’ in the outcome of the case and actively participate[] in
the proceedings relating to that interest.” Abeyta v. City of Albuquerque, 664 F.3d
792, 795 (10th Cir. 2011). Because amici curiae are not parties, Kerr v.
Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016) (citing Coal. of Ariz./N.M.
Cntys. for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844 (10th Cir.
1996)), Calderon must satisfy the two-step Abeyta test before we can consider the
merits of his appeal.
But Calderon fails at step one because he has not shown that he has a “unique
interest” in this case. He asserts that his position as Dabbs’s judgment creditor gives
him a unique interest here. In Calderon’s view, if Dabbs prevails against Shelter, he
can satisfy his judgment with the proceeds of Dabbs’s bad-faith claim. He cites our
decision in Plain v. Murphy Family Farms, 296 F.3d 975 (10th Cir. 2002), in
support. Plain was a wrongful-death suit brought by a decedent’s widow. Id. at 977.
The decedent’s children sought to intervene, which the court denied, and they later
asked the court to reconsider its denial. Id. at 978. When the court denied
reconsideration, the children appealed. Id. They voluntarily dismissed the appeal
after learning the district court would not stay the upcoming trial. Id. After a jury
3 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 4
awarded damages, the court invited the children to file an amicus brief on the
distribution of the damages award. Id. The children instead moved for a new trial and
proposed a damages-award distribution. Id. The court denied their motion, rejected
their proposed distribution, and apportioned the damages itself. Id. The children
again moved for a new trial, which was denied. Id. at 979. They appealed again. Id.
Describing the children’s relentless motion practice as creating a
“jurisdictional thicket,” we confirmed our jurisdiction to review the district court’s
order apportioning the damages. Id. We reasoned that the children had a unique
interest in the damages award because they were entitled to wrongful-death damages
under Oklahoma law, they were bound by the district court’s apportionment order,
they promptly opposed the apportionment (on the court’s invitation), and they
appealed at the earliest opportunity. Id. at 979–80. But we lacked jurisdiction to
consider a challenge to the order denying the second motion for a new trial. Id.
at 980. Participating in a case’s disposition on the merits requires timely Rule 24
intervention, and the children should have pursued their first appeal from the district
court’s denial of their motion to intervene. Id. at 980–81. We regarded their second
appeal as improper because the children “fail[ed] to follow proper procedure the first
time.” Id. at 981.
Yet unlike the children in Plain, Calderon is not at all “bound” by the
judgment below, which affects only Dabbs and Shelter.1 The district court, on
1 Calderon makes passing references to res judicata and collateral estoppel but does not analyze how either principle affects him. 4 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 5
Calderon’s motion, allowed him to file an amicus brief arguing for the application of
Texas law. Calderon’s rights were never at risk—he was arguing that Texas law
should apply to a dispute between others. And he never sought to intervene under
Rule 24. His simple disagreement with the court’s decision on the choice-of-law
issue does not give him a direct stake in this appeal, nor does his disagreement allow
him to dispute an issue about which the parties agree. Here, we decline to consider
the arguments raised only by Calderon in his amicus brief. Sierra Club v. EPA,
964 F.3d 882, 897 n.15 (10th Cir. 2020) (citing Tyler v. City of Manhattan, 118 F.3d
1400, 1404 (10th Cir. 1997)).
Calderon also cites Grain Dealers Mutual Insurance Co. v. Lower, 979 F.2d
1411 (10th Cir. 1992), in support. There, we held that a potential judgment creditor
named as a party in an insurer’s declaratory-judgment suit had standing to appeal,
even though the insured chose not to appeal. Id. at 1413–14. But this isn’t a
declaratory-judgment suit, and Calderon isn’t a named party, so Grain Dealers
doesn’t help him. He cites no authority where a nonparty judgment creditor has a
unique interest in the outcome of a case brought by the judgment debtor.
Faced with this reality, Calderon switches gears in his reply brief. He claims
that his unique interest stems from his “statutory right under Texas law to satisfy his
judgment against Dabbs” through Dabbs’s suit against Shelter. Calderon’s
Jurisdictional Reply Br. 10. Texas law permits courts to order a “judgment debtor to
turn over nonexempt property that is in the debtor’s possession or is subject to the
debtor’s control.” Tex. Civ. Prac. & Rem. Code § 31.002(b)(1) (West 2021). And
5 Appellate Case: 21-6171 Document: 010110759395 Date Filed: 10/27/2022 Page: 6
Texas courts consider causes of action to be property under the turnover statute. E.g.,
Associated Ready Mix, Inc. v. Douglas, 843 S.W.2d 758, 762 (Tex. App. 1992)
(citing Republic Ins. Co. v. Millard, 825 S.W.2d 780, 784 (Tex. App. 1992)). But in
2016, a Texas court denied Calderon’s application for an order turning over Dabbs’s
causes of action against Shelter. Calderon does not explain how he still enjoys this
statutory right, let alone how it would afford him a unique interest in this case.
At bottom, Calderon holds a six-figure judgment against a debtor whose ability
to cover an excess judgment is doubtful but who would suddenly have the means to
pay were she to successfully appeal here. He is no different from any other creditor
and hardly possesses the unique interest that Abeyta requires. Dabbs’s unfavorable
result just means Calderon must find another source of assets to satisfy his judgment.
Although he may stand to financially benefit from Dabbs’s successful appeal, this
peripheral, nonunique interest affords him no right to move from the sideline to the
field.
Because we lack jurisdiction to review Calderon’s attack on the judgment, we
dismiss his appeal.
Entered for the Court
Gregory A. Phillips Circuit Judge