Ten Mile Industrial Park v. Western Plains Service Corp.

810 F.2d 1518
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 2, 1987
DocketNos. 84-2386, 84-2387
StatusPublished
Cited by77 cases

This text of 810 F.2d 1518 (Ten Mile Industrial Park v. Western Plains Service Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ten Mile Industrial Park v. Western Plains Service Corp., 810 F.2d 1518 (10th Cir. 1987).

Opinion

BALDOCK, Circuit Judge.

Cases 84-2386 (Ten Mile) and 84-2387 (Hubbell) have been consolidated on appeal for purposes of record, briefing, argument and submission. Due to the similarity of the issues, both cases will be decided in this order and judgment. To the extent an [1521]*1521issue is unique to only one of the cases, the discussion of that issue will be expressly limited to that case. References to the record on appeal will be made jointly. The first reference will be to the record in 84-2386, and the second reference to 84-2387. Where the reference is to only one record on appeal, a blank will be left or the single reference will be expressly indicated.

Plaintiffs-appellants in both of these cases appeal the district court’s dismissal of their claims against the respective defendants-appellees. Appellees filed motions to dismiss the claims against them for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The district court concluded that it did not have jurisdiction over the appel-lees, and dismissed the claims against them. We affirm.

The facts pertinent to this appeal may be easily summarized despite the number of parties and separate transactions. Western Plains Service Corporation (WPSC), a South Dakota corporation, made loans to the several appellants in these cases for various Wyoming real estate projects. WPSC is owned by several South Dakota savings and loan associations, and its executive committee is made up of officers or directors from each association. These savings and loans (S & L’s), along with a North Dakota S & L, entered into loan participation agreements with WPSC. The S & L’s, through the participation agreements, advanced money to WPSC. WPSC then loaned this money out to various developers, including the appellants.

The various projects of the appellants all failed, the appellants defaulted on their obligations to WPSC, and WPSC began foreclosure proceedings. Ten Mile Industrial Park conveyed its property to WPSC by deed in lieu of foreclosure, and WPSC then conveyed the property to Plateau Development Corporation, a Wyoming corporation owned by the same S & L’s which had advanced the money to WPSC for the Ten Mile loan. Rec. vol. I at 314,__ Tolhurst, one of the appellants in the Hub-bell case, executed quitclaim deeds on August 14, 1981, and a deed in lieu of foreclosure on October 9, 1981, in favor of WPSC. Rec__, vol. I at 121-129. WPSC in turn conveyed the property to those associations which had advanced money to WPSC for the Tolhurst loan, giving each S & L a specified percentage of interest in the property. Rec._, vol. II at 339-340.

The appellants brought suit in Wyoming federal court against WPSC, its president and an employee/agent, the officers and directors of WPSC, the stockholders of WPSC, one S & L who participated in the loans but was not a stockholder, and the chief executive officer and senior vice president of this participating S & L. Appellants’ complaints alleged breach of contract for not loaning all monies promised, fraud, negligence on the part of the executive committee, illegal tying arrangements (Hubbell only), tortious interference with business relationships, slander of business reputation and credit (Hubbell only), and sought punitive damages. Rec. vol. I at 1-17, vol. I at 1-17. Appellants also sought to disregard the corporate status of WPSC. The parties agreed to dismiss WPSC from the cases because it was insolvent. Rec. vol. I at 389, vol. II at 648. The president of WPSC, as well as the alleged employee/agent of WPSC, were not named in the Ten Mile case and not served in the Hubbell case because they had filed for bankruptcy. The S & L’s and their chief executive officers who were only directors of WPSC were dismissed from the cases by the district court.

Appellants do not challenge any of the above dismissals. Nevertheless, they are appealing the district court’s dismissal of certain appellees for lack of personal jurisdiction. Among the appellees are six members of the executive committee: Pugh, Cameron, Clark, Everett, Boyles and Snyder. These individual appellees also were the chief executive officers of their respective S & L’s, which S & L’s were among the several shareholders of WPSC. The S & L’s which employed Cameron and Everett have ceased doing business, and have since been taken over by a third S & L. Neither the former associations nor the S & L [1522]*1522which took them over are parties to this appeal. However, the associations which employed the remaining four executive committee appellees are themselves appel-lees in these cases: First Federal Savings and Loan of Rapid City, South Dakota; First Federal Savings and Loan of Water-town, South Dakota; United Federal Savings and Loan of Aberdeen, South Dakota; and Yankton Savings and Loan of Yankton, South Dakota.

In addition, Home Trust Savings and Loan, Vermillion, South Dakota, one of the shareholders in WPSC, is an appellee in the Hubbell case due to its participation in the Tolhurst loan and its ownership interest in the Tolhurst property. Finally, Midwest Federal Savings and Loan, Minot, North Dakota, as well as its chief executive officer (Broschat) and a senior vice president (Bohan), are appellees in both cases due to Midwest Federal’s participation in the Ten Mile and Tolhurst loans, its interest in Plateau Development Corporation which holds the Ten Mile property, and its ownership interest in the Tolhurst property. Midwest Federal was not a shareholder in WPSC, nor were Broschat or Bohan on WPSC’s executive committee.

One group of appellees argues that this appeal should be dismissed as moot because appellants have filed a similar action in South Dakota federal court after the dismissals in these cases. These appellees contend that the filing of the action in South Dakota constitutes appellants’ acquiescence in the Wyoming judgment, thus effectively mooting the appeal.

The mootness doctrine arises from the case or controversy requirement of article III, section 2 of the United States Constitution. Thoumir v. Buchanan, 710 F.2d 1461, 1462 (10th Cir.1983). The doctrine ensures that the federal courts will decide only cases involving actual controversy. Leader Clothing Co. v. Fidelity & Casualty Co. of N.Y., 227 F.2d 574, 576 (10th Cir.1955). “Generally an appeal should be dismissed as moot when events occur that prevent the appellate court from granting any effective relief.” Thoumir v. Buchanan, 710 F.2d at 1463. “[Wjhere the order appealed from has been complied with and the controversy thereby extinguished, the appellate court will not proceed to judgment.” Leader Clothing Co. v. Fidelity & Casualty Co. of N. Y, 227 F.2d at 576.

In the present case, the filing of the action in South Dakota does not constitute a voluntary acquiescence with the district court’s order that would extinguish the controversy. Rather, the South Dakota filing itself demonstrates that the controversy between the parties is ongoing. The South Dakota filing does not prevent this court from granting effective relief. A decision in favor of appellants would restore their choice of forum, thus allowing them to continue their action in Wyoming rather than South Dakota.

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810 F.2d 1518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ten-mile-industrial-park-v-western-plains-service-corp-ca10-1987.