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The old saying, “If at first you don't succeed, try, try again,” does not ring true in the law. While the appellate process provides a certain number of second chances, you can’t relitigate final decisions after you’ve exhausted the appellate process, thanks to double jeopardy and res judicata.

In certain criminal cases, state and federal prosecutors can collaborate on a double jeopardy workaround: criminal defendants can be charged and tried separately for state and federal violations stemming from the same conduct.

The Tenth Circuit Court of Appeals reminds us this week that foreclosure appeals do not enjoy a similar state vs. federal backdoor.

We don't fault attorneys for resorting to creative arguments to halt foreclosure; it's an attorney's job to represent her client zealously. But when the Tenth Circuit Court of Appeals strikes down a legal theory, we try to clue you in so you don't waste your time making a similar argument in the future.

That brings us to today's now-defunct foreclosure theory: MERS can't foreclose on a home on Utah. According to a multiple Tenth Circuit opinions, that's simply not true.

The Tenth Circuit Court of Appeals reminds us today that the Quiet Title Act statute of limitations favors the government. Before you file a Quiet Title claim, you might want to double check when your client — or her predecessor in interest — reasonably should have known of the government’s right in a disputed property.

Anne George lives next to the Gila National Forest in Silver City, New Mexico. She wants to fence her property to corral her horse. The Forest Service has a road running through her land, so George offered to leave a gate across the road unlocked; the Service rejected the idea. The Service, instead, suggested that George pen her horse with a fence running alongside its road; George rejected this alternative.

It’s funny what we consider a victory in court. So many times, victory isn’t a decision on the ultimate issue, it’s a procedural step that enables or delays an action.

Take, for example, last week’s Tenth Circuit Court of Appeals decision in Diné Citizens Against Ruining our Environment v. Klein, a case dealing with a mining permit. The Tenth Circuit ruled last week that it did not have jurisdiction to consider an issue that a district court remanded to a federal agency. There hasn’t been a decision on the ultimate issue, yet Diné Citizens Against Ruining Our Environment and San Juan Citizens Alliance (Citizens) are claiming victory.

So what exactly happened to prompt this talk of victory and defeat?

Rocky Mtn. Christian Church v. Bd. of Cty. Cmm'rs. of Boulder, Colo., No. 09-1188, concerned an action by a church claiming that the City of Boulder's denial of a special use application violated the Religious Land Use and Institutionalized Persons Act's (RLUIPA) substantial burden, equal terms, and unreasonable limitations provisions.  The court of appeals affirmed the district court's permanent injunction in favor of plaintiff, holding that 1) plaintiff presented ample evidence of similarities between its proposed project and another at trial; 2) the jury could reasonably choose to weigh evidence of the County's land use regulation effectively excluding churches more heavily than the County's record of approving special use applications; and 3) the injunction was consistent with the jury's verdict on both the RLUIPA claims and damages.

Lewis v. Tripp, No. 09-6105, involved an action by a chiropractor claiming that an administrative search of his office was carried out in violation of his Fourth Amendment rights.  The court of appeals reversed the denial of summary judgment for defendant, on the ground that defendant was entitled to qualified immunity because there was no evidence in the record to suggest that defendant was personally involved in the Fourth Amendment violation plaintiff alleged.

Related Resources

• Full Text of Rocky Mtn. Christian Church v. Bd. of Cty. Cmm'rs. of Boulder, Colo., No. 09-1188
• PDF Version of Rocky Mtn. Christian Church v. Bd. of Cty. Cmm'rs. of Boulder, Colo., No. 09-1188
• Full Text of Lewis v. Tripp, No. 09-6105
• PDF Version of Lewis v. Tripp, No. 09-6105

Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2293, involved a quiet title action regarding certain dam areas.  The Tenth Circuit remanded the action, on the ground that plaintiff's action was time-barred, because the district court did not clearly err in finding that plaintiff knew as far back as the early 1950s that the U.S. claimed title to the properties, and thus the district court did not have jurisdiction to decide the merits of the action.

As the court wrote:  "The Middle Rio Grande Conservancy District ("MRGCD") challenges a final judgment entered on its cross-claims brought pursuant to the Federal Quiet Title Act of 1972 (the "QTA"), 28 U.S.C. § 2409a, in favor of the Secretary of the Interior Ken Salazar, the Bureau of Reclamation ("BOR"), BOR officials, the United States Army Corps of Engineers ("Corps"), and Corps officials (collectively the "federal appellees"). Specifically, following a bench trial, the district court held that MRGCD's claims were time-barred pursuant to 28 U.S.C. § 2409a(g). The court ruled in the alternative that, even if its claims were not time-barred, MRGCD was judicially estopped from claiming that it owned the properties in question, and, furthermore, the federal appellees were entitled to judgment on the merits. As to the limitations issue, we agree with the district court: MRGCD's quiet-title action is time-barred. It follows, however, that the district court did not have jurisdiction to decide the merits of that action. Therefore, we remand to the district court with instructions to vacate the portion of its judgment that resolves the merits of MRGCD's quiet-title action and to enter judgment on its jurisdictional dismissal of the claim."

Related Resources

• Full Text of Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2293

In a class action based on defendants' alleged contamination of plaintiffs' property through operation of a zinc smelter, the district court's order granting plaintiffs' motion to remand the case to state court is affirmed where plaintiffs' claims fell within the "local controversy exception" to the Class Action Fairness Act.

Read Coffey v. Freeport McMoran Copper & Gold, No. 09-6106

Appellate Information

Filed September 4, 2009

Judges

Per Curiam

Counsel

For Appellants:

Marie R. Yeates, Vinson & Elkins, LLP, Austin, TX

Morgan L. Copeland, Jr., Vinson & Elkins, LLP, Austin, TX

For Appellees:

Nelson J. Roach, Nix, Patterson & Roach, LLP, Dangerfield, TX

Keith L. Langston, Nix, Patterson & Roach, LLP, Dangerfield, TX

In a breach of contract action alleging that defendant failed to implement a required interest rate reduction pursuant to the parties' mortgage agreement, plaintiff's appeal is dismissed where defendant purchased the right to pursue plaintiff's cause of action at a public execution sale.

Read RMA Ventures Cal. v. SunAmerica Life Ins. Co., No. 08-4035

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Baldock

Counsel

For Appellant:

Ronald W. Ady, Salt Lake City, UT

For Appellees:

George W. Pratt, Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT

In a constitutional challenge to a Utah statute requiring attorneys who acted as trustees of real property trust deeds in Utah to maintain a place within the state to meet with trustors in connection with foreclosures, summary judgment for Defendant is affirmed where Plaintiff failed to present evidence that could satisfy his burden to establish a discriminatory effect.

Read Kleinsmith v. Shurtleff, No. 07-4187

Appellate Information

Filed July 6, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Philip M. Kleinsmith, pro se

For Appellee:

Nancy L. Kemp, Assistant Utah Attorney General, Salt Lake City, UT