Derringer v. Chapel

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 10, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

In re: DAV ID BRIAN D ERRINGER,

Debtor.

DAV ID BRIAN D ERRINGER, No. 05-2310 (BAP N o. NM -05-20) Appellant, (BA P)

v.

M ICK CH APEL; JENN IFER CHA PEL,

Appellees.

OR D ER AND JUDGM ENT *

Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. ** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation. Debtor David Brian Derringer appeals from an order of the Bankruptcy

Appellate Panel of the Tenth Circuit (BAP) upholding two bankruptcy court

orders holding that it lacked jurisdiction to review a state court injunction and

related enforcement judgments held by the Chapels against Derringer. Because

we agree that the Rooker-Feldman doctrine precluded review by the bankruptcy

court of the underlying state judgments, we exercise our jurisdiction under

28 U.S.C. § 158(d) to affirm. For the reasons discussed herein, we also grant the

Chapels’ motion for attorneys fees.

I.

BACKGROUND

The dispute between Derringer and his neighbors, the Chapels, dates back

more than a decade and stems from the parties’ w ater rights in Harris C reek in

Catron County, New M exico. In an earlier order and judgment disposing of

several related appeals by Derringer and his wife, Susan Nevitt, we included a

detailed recitation of the facts of the various state and federal district court

proceedings concerning the parties’ dispute. See Derringer v. Chapel,

Nos. 02-2315, 02-2329, 03-2181, 03-2215, and 03-2218, 98 F.App’x 728

(10th Cir. 2004). W e will not recount those facts here, except as necessary to

explain the bankruptcy court’s orders under review.

In 2004, the Chapels attempted to foreclose on Derringer’s property in an

effort to satisfy certain state court judgments they obtained against him in 1996,

-2- 2001, and 2003. To forestall foreclosure, on October 6, 2004, Derringer filed a

voluntary petition for bankruptcy under Chapter 13 of the Bankruptcy Code. The

bankruptcy court sent notice of the filing to all of Derringer’s creditors, including

the C hapels, on October 8, 2004. The day before the notice was sent, however,

the C hapels’ attorney mailed an Amended Notice of Sale to the state court

concerning Derringer’s property. Derringer claimed that the act of mailing the

Amended Notice of Sale constituted a willful violation of the automatic stay in

effect pursuant to 11 U.S.C. § 362. Accordingly, on October 18, 2004, he filed a

“M otion to Take Judicial Notice and Request for Relief, and M otion for

Permanent Restraining Order Against M ick Chapel, Jennifer Chapel, and Joseph

M anges” (First M otion) (Bankr. docket nos. 4 and 5), arguing that the Chapels

had willfully violated the automatic stay. On November 18, 2004, the bankruptcy

court entered an order denying the First M otion to the extent it sought injunctive

or equitable relief, holding that such relief could only be obtained through an

adversary proceeding.

On December 27, 2004, Derringer filed “Debtor David Derringer’s M otion

to Take Judicial Notice and Objection to Enforcement of Chapels’

Unconstitutional Claims of Debt” (Second M otion). Bankr. docket no. 85. In the

Second M otion, he argued that an injunction that the Chapels obtained against

him in state court in 1996 and the subsequent judgments to enforce it were

invalid. He requested the following relief from the bankruptcy court: (1) that it

-3- take judicial notice of his rights, privileges and immunities under the Constitution

and 42 U.S.C. §§ 1981 and 1982; (2) that it take judicial notice of various

criminal conspiracies involving the Chapels and others in violation of 42 U.S.C.

§ 241; (3) that it hold the Chapels’ judgments unenforceable; (4) that it consider

an FBI investigation into the Chapels; and (5) that it consider its own duties under

Code of Judicial Conduct Canon 3(D )(2).

On February 2, 2005, the bankruptcy court entered an order denying the

remainder of Derringer’s First M otion and his Second M otion in its entirety.

It found that Derringer had failed to show that the Chapels’ violation of the

automatic stay was w illful as required by 11 U.S.C. § 362(h). W ith respect to his

Second M otion, the court concluded that res judicata and the Rooker-Feldman

doctrine 1 barred review of the underlying state court injunction and subsequent

judgments to enforce it.

On February 11, 2005, Derringer filed what the court construed as a motion

for reconsideration under Fed. R. Civ. P. 59 (Rule 59 M otion). He argued (1) that

the res judicata and Rooker-Feldman doctrines were inapplicable because he was

1 The Rooker-Feldman doctrine, which takes its names from two United States Supreme Court cases (Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983)) “prevents the lower federal courts from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced.” Lance v. Dennis, 126 S. Ct. 1198, 1199 (2006) (quotations omitted).

-4- not a party to the original lawsuit giving rise to the Chapels’ judgments against

him; (2) that the bankruptcy court lacked jurisdiction to enforce the Chapels’

illegal judgments; and (3) that the bankruptcy court had jurisdiction to provide

him relief from the Chapels’ judgments. The court denied Derringer’s Rule 59

M otion in an order dated M arch 2, 2005, finding that the motion failed to raise

any errors of law or fact and did not present any newly discovered evidence.

Derringer then filed a notice of appeal before the BAP seeking review of

the bankruptcy court’s orders denying his Second M otion and Rule 59 M otion. 2

In a thorough and well-reasoned order and judgment, dated September 6, 2005,

the BAP concluded that the issues raised in Derringer’s appeal were identical to

those decided in prior state court actions where Derringer or his privy had been a

party. Accordingly, it held that res judicata prevented Derringer from relitigating

issues that were or could have been raised in the state court proceedings, and that

the Rooker-Feldman doctrine prevented the bankruptcy court from considering the

validity of the Chapels’ judgments. It also affirmed the denial of his Rule 59

M otion, holding that he failed to raise any new issues that would qualify as

grounds for altering or amending the bankruptcy court’s order. This appeal

followed.

2 Derringer did not seek review of the bankruptcy court’s ruling with respect to the Chapels’ alleged violation of the automatic stay raised in his First M otion. Therefore, the BAP concluded that Derringer had waived his appellate rights as to that issue. Derringer does not raise that issue in his appeal before this court.

-5- II.

ANALYSIS

“On appeal from BAP decisions, we independently review the bankruptcy

court’s decision. W e review the bankruptcy court’s legal determinations de novo

and its factual findings under the clearly erroneous standard.” In re Commercial

Fin. Servs., Inc., 427 F.3d 804, 810 (10th Cir. 2005) (quotations and citations

omitted). Having reviewed the entire record on appeal, we see no error in either

of the bankruptcy court’s challenged orders. The relief sought by Derringer in his

Second M otion was clearly beyond the bankruptcy court’s power to grant, which

should have been obvious to him given the long list of court opinions devoted to

explaining why the Rooker-Feldman doctrine bars his federal claims against the

Chapels. His Rule 59 M otion was likewise without merit. Therefore, for the

reasons stated in the B AP’s order and judgment, dated September 6, 2005, we

affirm the bankruptcy court’s February 2, 2005, order denying Derringer’s

requested relief, and its M arch 2, 2005, order denying his Rule 59 M otion.

III.

CH APELS’ M OTION FOR D AM AG ES, CO STS AN D A TTORNEY S’ FEES

W e now turn to the Chapels’ motion for sanctions against Derringer,

including attorneys’ fees and double costs incurred in defending this appeal

pursuant to Rule 38 of the Federal Rules of Appellate Procedure. Rule 38

“authorizes a court of appeals to aw ard just damages, including attorney’s fees,

-6- and single or double costs if the court determines that an appeal is frivolous or

brought for the purposes of delay. An appeal is frivolous w hen 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) (citation and quotation

omitted). Under this standard, an award of damages is appropriate here. In our

April 12, 2004, order and judgment, we included the following language to w arn

Derringer of the consequences of filing future frivolous appeals seeking to

invalidate the state court judgments:

As we have noted above, the filings before this court by both Susan Nevitt and David Derringer have been filled with factually unsupported, outrageous, scandalous, and vituperative accusations against the parties, including judges of the New M exico courts, and against the federal district court judge who presided over two of these cases. In addition, the briefs by Nevitt and Derringer have made no attempt to comply with the requirements of Fed. R. App. P. 28 or 10th Cir. R. 28. Derringer has also papered this court with motions, many of w hich seek relief that is clearly beyond this court’s power to grant. This court will not countenance such conduct. Accordingly, Derringer and Nevitt are hereby warned that if they continue this type of misconduct in these or future appeals before this court, they may be subject to sanctions under this court’s inherent powers to control its docket and under 10th Cir. R. 46.5 and 46.6. These sanctions could include, among other things, monetary sanctions, dismissal of their appeal(s), and future filing restrictions.

Derringer, 98 F.App’x at 739. W e later ordered D erringer to pay the attorneys’

fees incurred by the Chapels and the various judges who were forced to defend

his numerous frivolous appeals. And yet, Derringer chose once again to appeal

a federal court order denying his request to overturn the C hapels’ state court

-7- judgments – relief that was clearly beyond the court’s power to grant. Since the

instant appeal, like those before it, is patently frivolous, multiplicitous, and

vexatious, an award of attorneys’ fees and double costs is appropriate under

Fed. R. App. P. 38. W e therefore remand this case to the bankruptcy court for the

limited purposes of determining the amount of fees and costs to be paid by

Derringer to the Chapels.

The BAP’s order and judgment is AFFIRM ED, and the case is

REM ANDED to the bankruptcy court for a determination of the Chapels’ fees and

costs. D erringer’s motion to proceed in forma pauperis is DENIED.

Entered for the Court

W ade Brorby Circuit Judge

-8-