F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 14 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHRISTOPHER J. BOWER;
MARY LYNNE PERRY,
Plaintiffs-Counter-
Defendants-Appellants,
v. No. 99-4205
(D.C. No. 99-CV-155-C)
STEIN ERIKSEN LODGE (D. Utah)
OWNERS’ ASSOCIATION, INC.,
a Utah nonprofit corporation,
Defendant-Counter-
Claimant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the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.
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.
This case is an appeal from an order of the district court granting and
denying cross motions for partial summary judgment. Because the judgment
is not appealable as an interlocutory appeal under 28 U.S.C. § 1292(a)(1),
we dismiss this appeal for lack of appellate jurisdiction.
Appellants Christopher J. Bower and Mary Lynne Perry (the Bowers) sued
Stein Eriksen Lodge Owners’ Association, Inc. (SELOA) setting forth seven
causes of action, only three of which were at issue in the Bowers’ motion for
partial summary judgment. In Count I, the Bowers alleged that SELOA
committed breach of contract by beginning to build Phase III of its condominium
project; Count II requested a declaratory judgment that plan documents precluded
SELOA from building a conference center; and Count IV requested an injunction
prohibiting SELOA from building the conference center. At the time they filed
their complaint, the Bowers also filed a lis pendens covering the entire
condominium project.
In response to the Bowers’ complaint, SELOA also filed suit and eventually
moved for partial summary judgment on their claims of unlawful interference with
economic relations, their request for a declaratory judgment that the Bowers have
no rights to the property covered by the lis pendens other than their rights in their
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own unit, and their request for an injunction prohibiting the Bowers from
recording the lis pendens, or if recorded, compelling them to take all steps to
remove it from the public records.
The two cases were consolidated, and the district court held a hearing on
the cross motions for partial summary judgment at which SELOA’s motion was
granted and the Bowers’ motion was denied. In a bench ruling, the court ruled,
inter alia, that SELOA was authorized to build both the units in Phase III and the
conference center, and that the management committee had properly secured the
relevant financing. The bench ruling was reduced to an order which stated: “For
the reasons set forth at the close of hearing, the plaintiffs’ [Bowers’] motion for
partial summary judgment is DENIED and the defendants’ [SELOA’s] motion for
partial summary judgment is GRANTED.” Appellant’s App. Vol. II, tab 37. The
Bowers’ notice of appeal was quickly followed by SELOA’s motion to this court
to dismiss for lack of appellate jurisdiction or to stay appellate proceedings.
In their memorandum supporting the motion to dismiss, SELOA argues that
the order appealed from was not a final order and that, therefore, this court did
not have jurisdiction to hear the appeal. The Bowers respond that the order was
immediately appealable under the exception to the finality requirement set forth in
28 U.S.C. § 1292(a)(1) which grants jurisdiction over appeals from interlocutory
orders of the district courts “granting, continuing, modifying, refusing or
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dissolving injunctions, or refusing to dissolve or modify injunctions.” The
Bowers reason that, because the district court granted SELOA’s motion for partial
summary judgment, which motion included a request for an injunction prohibiting
the Bowers from recording the lis pendens, and denied their motion for partial
summary judgment, which included a request to enjoin the construction of the
conference center, the order appealed from both granted and refused an
injunction.
SELOA, citing Carson v. American Brands, Inc. , 450 U.S. 79 (1981), and
Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power, Inc. ,
874 F.2d 1346 (10th Cir. 1989), responds that, because the order does not
expressly grant and/or refuse an injunction, the Bowers must make additional
showings before this court can assume jurisdiction. We agree.
In Carson , the Court considered a district court order declining to enter a
proposed consent decree. The decree would have permanently enjoined the
defendant employer from discriminating against its African-American employees.
While noting that the order did not, by its terms, specifically refuse an injunction,
the Court concluded that the order appealed from had the “practical effect” of
refusing an injunction. Carson , 450 U.S. at 83. However, because § 1292(a)(1)
is an exception to the final judgment rule and is construed narrowly, a litigant
attempting to appeal an order which only has the “practical effect” of refusing or
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granting an injunction must show more than a litigant appealing an express order
relating to an injunction. In the prior case, appeal of right will only be available
where the litigant can demonstrate that “an interlocutory order of the district court
might have a serious, perhaps irreparable, consequence, and that the order can be
effectually challenged only by immediate appeal.” Id. at 84 (quotations omitted).
The Bowers do not attempt to make this showing but argue, instead, that the order
appealed from, by extrapolation, expressly grants and refuses an injunction and is
thus immediately appealable without more. We are not persuaded.
In Hutchinson v. Pfeil , 105 F.3d 566 (10th Cir. 1997), this court confronted
a situation much the same as is presented in this appeal. In Hutchinson , the
plaintiff had prayed for injunctive relief in his complaint but had not sought a
preliminary injunction or any other kind of temporary relief. The district court
eventually granted summary judgment to five of the six defendants, and the
plaintiff appealed. This court first reasoned that, because not all of the
defendants had joined in the summary judgment motion and because the district
court had not certified its order under Rule 54(b), jurisdiction did not lie under 28
U.S.C. § 1291. Id. at 569.
The plaintiff next argued, much as the Bowers do here, that because he had
sought injunctive relief in his complaint and because the district court had granted
summary judgment to defendants on that complaint, jurisdiction would lie under
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28 U.S.C. § 1292(a)(1) as an interlocutory order refusing to enter an injunction.
This court concluded that the order did not expressly deny the injunction but only
had “the practical effect of denying such relief,” id. at 569-70, and, as such, the
plaintiff would have to make the showing required under Carson . Because the
plaintiff could not make that showing, the appeal was dismissed for lack of
jurisdiction. Id. at 571.
The same result obtains here. The district court’s order does not expressly
grant and deny the requests for injunctive relief. As such, the order has only the
practical effect of ruling on the injunctions, making it imperative that plaintiffs
demonstrate the harm required by Carson . Because plaintiffs do not attempt to
make that demonstration, we are without jurisdiction to proceed further with this
appeal.
Consequently, we DISMISS this appeal for lack of jurisdiction.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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