United States v. Johnson

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 2, 2022
• Docket: 21-4080
• Status: Unpublished

Opinion

Appellate Case: 21-4080 Document: 010110651694 Date Filed: 03/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff,

v. No. 21-4080 (D.C. No. 2:15-CV-00828-DN) GLENDA JOHNSON, (D. Utah)

Defendant - Appellant.

------------------------------

R. WAYNE KLEIN,

Receiver - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and EID, Circuit Judges. _________________________________

Glenda Johnson appeals an order of the district court awarding attorney fees to

Receiver R. Wayne Klein after finding her in contempt of its receivership order.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-4080 Document: 010110651694 Date Filed: 03/02/2022 Page: 2

BACKGROUND

This is one of many appeals arising from a civil proceeding in which the

United States alleged, and the district court ultimately found, that three companies—

RaPower3, LLC; International Automated Systems, Inc.; and LTB1, LLC—and two

individuals—Neldon Johnson and R. Gregory Shephard—operated a fraudulent solar

energy tax scheme. The district court ordered the appointment of a receiver for the

three entities, disgorgement of all gross receipts, and cessation of all business

operations. We affirmed the court’s findings of fraud, disgorgement order, and

injunction in United States v. RaPower-3, LLC, 960 F.3d 1240, 1243–44 (10th

Cir. 2020).

In its “Corrected Receivership Order,”1 the court prohibited all persons

receiving notice of it from taking any action that would interfere with the Receiver’s

duties. The order specifically prohibited creating or enforcing liens on receivership

property. Despite being subject to the order, Ms. Johnson, the wife of Defendant

Neldon Johnson, filed a “Notice of Lien” on receivership property in Millard County,

Utah, and brought suit in state court against the buyer of the property after the

court-approved sale of the property by the Receiver. Ms. Johnson later filed

additional liens against receivership property in Utah and Texas.

The court ordered Ms. Johnson to release the liens and dismiss the lawsuit to

enforce the lien. When she did not do so, the Receiver filed a “Notice of

1 The court issued the first receivership order on October 31, 2018. It issued the Corrected Receivership Order one day later to revise some formatting errors.

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Non-Compliance” with the district court. Ms. Johnson responded with a declaration

asserting she lacked the authority to release the liens. The Receiver contested this

assertion, and the district court entered an order requiring Ms. Johnson to submit

specific information under oath to support her claim that she could not comply with

the court’s earlier order to release the liens. She submitted a second declaration, and

the Receiver again contested her assertion that she did not have authority to release

the liens.

The court entered an order invalidating the liens and ordering the Receiver to

investigate the creation of the liens and interference with his work. The Receiver did

so and then sought an order requiring Ms. Johnson to show cause why the court

should not hold her in contempt. On April 14, 2021, the court entered an order

finding Ms. Johnson in contempt of court and holding her liable for the resulting

costs and attorney fees the Receiver incurred. The Receiver submitted a motion for

attorney fees and costs on May 28, 2021. Ms. Johnson did not file a response to this

motion. On June 22, 2021, the court ordered Ms. Johnson to pay the Receiver for

$53,518.34. Ms. Johnson appeals this order.

DISCUSSION

Because Ms. Johnson is pro se, we construe her arguments liberally, but we

“cannot take on the responsibility of serving as [her] attorney in constructing

arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005). “We review a district court’s decision on

whether to award attorney fees for abuse of discretion, but we review de novo the

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district court’s application of the legal principles underlying that decision.” John

Zink Co. v. Zink, 241 F.3d 1256, 1261 (10th Cir. 2001) (internal quotation marks

omitted).

In her opening brief, Ms. Johnson presents 22 separate issues for review.

However, in none of them does she in any way suggest the district court abused its

discretion in its attorney fee award. Even if it were possible to construe portions of

Ms. Johnson’s opening brief as challenging the attorney fees order, she waived

appellate consideration of any such arguments by not objecting below. See Strauss v.

Angie’s List, Inc., 951 F.3d 1263, 1266 n. 3 (10th Cir. 2020) (“Generally, this court

does not consider arguments raised for the first time on appeal.”).

Ms. Johnson filed her notice of appeal on July 1, 2019. In it, she designated

only the attorney fees order, and not the underlying contempt order, as the order

being appealed. “Federal Rule of Appellate Procedure 3(c)(1)(B) requires a notice of

appeal to designate the judgment, order, or part thereof being appealed, and those

designations circumscribe the scope of our appellate review.” HCG Platinum, LLC v.

Preferred Prod. Placement Corp., 873 F.3d 1191, 1199 n.8 (10th Cir. 2017) (citation

and internal quotation marks omitted). And because the district court issued the

underlying contempt order on April 14, 2021, the notice of appeal Ms. Johnson filed

on July 1, 2021 is untimely to permit review of that order. See Fed. R. App. P.

4(a)(1)(B)(i) (setting a 60-day deadline to file a notice of appeal when the United

States is a party).

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CONCLUSION

Lacking any basis to disturb the district court’s attorney fee award, we affirm

the judgment of the district court.

Entered for the Court

Bobby R. Baldock Circuit Judge