Widman v. Keene

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 13, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KAREN WIDMAN, an individual,
a/k/a Karen Root,

Plaintiff Counter
Defendant - Appellee,
No. 14-4132
v. (D.C. No. 2:10-CV-00459-CW)
(D. Utah)
MARILEE E. KEENE, an individual,

Defendant Counterclaimant -
Appellant,

DAVID SHELL, an individual,

Defendant - Appellant,

and

JEFFS & JEFFS, P.C.; WILLIAM JEFFS,

Consolidated Defendants -
Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.
_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
 Karen Widman and David Shell were once married. As part of their divorce

proceedings, they entered into a Marriage Settlement Agreement (“MSA”). Under the

MSA, Ms. Widman was obligated to pay Mr. Shell $1.2 million to equalize their assets.

Ms. Widman made initial payments totaling $300,000 with the remaining balance of

$900,000 to be paid through monthly payments over a ten-year period. The $900,000

obligation to Mr. Shell was secured by two promissory notes and two trust deeds to real

property.

Ms. Widman began making monthly payments to Mr. Shell in July 2005.

Mr. Shell subsequently assigned his benefits under the promissory notes to Marilee

Keene in the fall of 2006. Mr. Shell and Ms. Keene (collectively “Appellants”)

began asserting in 2007 that payments had not been properly made and that this

accelerated the notes so that the full amount of the principal ($900,000) was due, plus

interest on that principal amount. Ms. Widman ultimately filed a declaratory

judgment action in state court to resolve the dispute regarding her payments and to

confirm that she had met her obligations under the notes.

Appellants removed the case to federal court. Ms. Keene then filed

counterclaims, asserting that Ms. Widman had breached her obligations under the

MSA and Ms. Keene was therefore entitled to foreclose on the trust deeds. Mr. Shell

also filed a separate complaint against Ms. Widman, alleging that: Ms. Widman had

not properly issued the promissory notes, payments had not been timely made, the

balance of the entire debt was due, and interest was due on the full amount of the

debt.

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 After a three day bench trial, the district court issued findings of fact and

conclusions of law. The district court also made a number of declarations, including that:

Ms. Widman had made all payments required under the MSA and promissory notes; she

had never been default under the MSA and promissory notes and therefore the principal

balance had not been accelerated; and Ms. Widman had timely made all payments, with

the exception of the July 2007 payment. Regarding that payment, the court concluded

that Ms. Widman owed Ms. Keene interest in the amount of $2,786.99. The court also

declared that the remaining balances on the notes as of April 2014 were $46,665.96

(Green Gables Trust Deed Note) and $58,334.04 (Mesa Vista Trust Deed Note).

The court then entered judgment in favor of Ms. Widman and against appellants

on Ms. Widman’s complaint and on Ms. Keene’s counterclaims. The court also

consolidated Mr. Shell’s separate complaint with Ms. Widman’s action and dismissed

Mr. Shell’s complaint with prejudice. Finally, the court determined that Ms. Widman

was the prevailing party and was therefore entitled to recover reasonable attorney’s fees

and costs.1 This appeal followed.2 We exercise jurisdiction over this case pursuant to

28 U.S.C. § 1291.

1
The court instructed Ms. Widman to file a request for the amount of fees within
thirty days of entry of its decision. Ms. Widman did so, requesting $68,565.50 in fees.
The district court initially awarded Ms. Widman that amount. But the court subsequently
vacated that order to allow appellants additional time to file objections. The district court
has not yet ruled on the amount of the fees and therefore that issue is not before us in this
appeal. The fact that there is no final order on the amount of the fee award does not
affect the finality of the district court’s judgment on the merits of this case. See Budinich
v. Becton Dickinson & Co., 486 U.S. 196, 202–03 (1988) (holding that “a decision on the
merits is a ‘final decision’ for purposes of § 1291 whether or not there remains for
adjudication a request for attorney’s fees attributable to the case”).
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 I. Discussion

On appeal, appellants challenge a number of the district court’s factual findings

and conclusions of law, including that: (1) Ms. Widman executed and delivered the

promissory notes to Mr. Shell; (2) the May 2007 payments were timely, but even

assuming the May 2007 payments could be considered untimely, there was an accord and

satisfaction, and (3) Ms. Widman was the prevailing party.

In addition to these challenges, appellants make a number of statements or

complaints in their opening brief without adequately developing their arguments, see Fed.

R. App. P. 28(a)(8)(A) (explaining that an appellant’s argument must contain:

“appellant’s contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.”). Most of these issues involve

conclusory statements without supporting analysis and fail to include citations to the

record or to relevant legal authority. See, e.g., Aplt. Br. at 43. Appellees have identified

these issues in their response brief. See Aplee. Br. at 39-41. We agree with appellees

that the issues they identify from appellants’ brief have been inadequately presented and

we therefore decline to consider them. See Bronson v. Swensen, 500 F.3d 1099, 1104

(10th Cir. 2007) (“Consistent with [the requirement in Fed. R. App. P. 28(a)(9)(A)], we

routinely have declined to consider arguments that . . . are inadequately presented [] in an

appellant’s opening brief.”).

2
At trial, Mr. Shell represented himself pro se, and Ms. Keene was represented
by counsel. Appellants are both proceeding pro se on appeal.

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 We also note that appellants raised a new argument in their reply brief that was

not raised in their opening brief. They argued that the district court erred in

admitting Exhibit 16 (a Federal Express tracking statement) and, as a result, there

was no admissible evidence to support a finding that the May 2007 payments were

timely. We decline to consider this argument because arguments not raised in an

opening brief are forfeited. See id. (“[T]he omission of an issue in an opening brief

generally forfeits appellate consideration of that issue.”).

The district court issued a fifty-two page decision that is thorough and

well-reasoned. Having reviewed the district court’s decision, the parties’ briefs, the

record, and the governing legal authority, we affirm the district court’s judgment for

substantially the same reasons stated in its Amended Memorandum Decision filed

August 19, 2014, with the exception of its determination regarding the prevailing-party

issue. We address the prevailing-party issue below as well as two evidentiary rulings that

were not discussed in the district court’s decision.

A. Prevailing-party determination

Appellants argue that the district court erred in its determination that Ms. Widman

was the prevailing party and therefore entitled to an award of attorney’s fees.3 They

assert that Ms. Keene was awarded a net monetary award and Ms. Widman lost on her

request for a declaration that every payment was timely made and that no interest was

3
The district court’s determination that Ms. Widman was the prevailing party
is properly before this court as part of the appeal from the district court’s Amended
Memorandum Decision and Judgment. As noted earlier, the amount of the fee award
was briefed separately and remains pending in district court.
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due. Appellants further complain that “[t]here is no analysis by the judge as to how he

arrived at his conclusion that Widman was the prevailing party.” Aplt. Br. at 40.

Ms. Widman counters that the district court did not err in its determination

because the court “largely adopted the position taken by Widman at trial,” noting that the

court only “found one out of over a hundred payments to have been made late.” Aplee.

Br. at 35. Ms. Widman further notes that the district court rejected appellants’ claims

that: (1) they were owed interest in excess of $700,000; (2) the balance on the notes was

almost $900,000; and (3) they had the right to foreclose on the collateral.

State law governs the question of whether Ms. Widman is the prevailing party and

therefore entitled to an award of attorney’s fees. See Combs v. Shelter Mut. Ins. Co.,

551 F.3d 991, 1001 (10th Cir. 2008) (“In diversity cases, attorney fees are a substantive

matter controlled by state law.”). The parties agree that California law applies and refer

this court to Cal. Code Civ. P. § 1032(a)(4) for the definition of “prevailing party.”4

See Aplt. Br. at 40, Aplee. Br. 34-35. Although the parties offer their positions on why

the district court’s determination was correct or incorrect given the facts of the case and

the language in § 1032(a)(4), the district court never mentioned that section and did not
4
Cal. Code Civ. P. § 1032(a)(4) states:
“Prevailing party” includes the party with a net monetary recovery, a
defendant in whose favor a dismissal is entered, a defendant where neither
plaintiff nor defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. When any
party recovers other than monetary relief and in situations other than as
specified, the “prevailing party” shall be as determined by the court, and
under those circumstances, the court, in its discretion, may allow costs or
not and, if allowed may apportion costs between the parties on the same or
adverse sides pursuant to rules adopted under Section 1034.

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provide any rationale for its prevailing-party determination, see R., Doc. 167 at 49-50.

We have noted that “[g]enerally, district courts must give an adequate explanation for

their decision regarding requests for attorney’s fees, otherwise we have no record on

which to base our decision.” Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir.

2005). Under these circumstances, we remand to the district court to give it “an

opportunity to explain the basis for its [prevailing-party] decision.” Id. at 723.

B. Judicial Estoppel

Appellants filed a pre-trial motion for judicial estoppel. In the motion, appellants

sought to preclude trial testimony that was inconsistent with certain statements

Ms. Widman made in an affidavit she filed in a state court proceeding in 2007. In the

affidavit, Ms. Widman testified that the promissory notes were recorded in Utah. In the

motion for judicial estoppel, appellants asserted that Ms. Widman was likely to provide

inconsistent testimony on the issue of whether the promissory notes were recorded. The

district court denied the motion.

“[J]udicial estoppel is an equitable doctrine invoked by a court at its discretion.”

Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th Cir. 2013) (internal quotation

marks omitted). It may be applied when “a party’s subsequent position . . . [is] clearly

inconsistent with its former position” and when the party has “succeeded in persuading a

court to accept that party’s former position.” Id. (internal quotation marks omitted). In

denying the motion, the district court explained:

Under the court’s discretion, I believe that given all of the circumstances of
this case it’s best for the court to hear the evidence and you can use the
prior statements to the extent the Rules of Evidence would permit them,

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 and I will make a judgment as to what weight or credibility to give to all of
the statements based on the evidence that is presented at trial.
R. at 148.

Because Ms. Widman had not yet testified at trial, she had not yet been given the

opportunity to testify about any alleged inconsistencies or give context to statements she

made in her earlier affidavit.5 Moreover, the affidavit was used in support of a motion for

a protective order in the state proceeding, and—although Ms. Widman was successful in

obtaining the protective order—there is no order from that court formally adopting or

accepting Ms. Widman’s position that the promissory notes had in fact been recorded.

We therefore see no abuse of discretion in the district court’s decision to deny appellants’

pre-trial motion for judicial estoppel. See Queen, 734 F.3d at 1086-87 (explaining that

we review district court’s decision to apply judicial estoppel for abuse of discretion).

C. Exhibit 410

Appellants also assert that the district court abused its discretion in not reopening

the trial proceedings to admit Exhibit 410 (Mr. Shell’s drafts of the promissory notes with

handwritten notes). Although appellants testified about the contents of this exhibit during

their case in chief, they never moved to have the exhibit admitted. After closing

arguments were completed, Mr. Shell asked the district court to reopen the case to admit

Exhibit 410. The district court denied the request, explaining:

5
At trial, Ms. Widman testified that when she made the statement in her 2007
declaration that the promissory notes had been recorded, she thought her counsel had
recorded the promissory notes. The court noted that “[it] had the opportunity to
judge Widman’s credibility at trial as she testified on the issue and concludes that
Widman did not knowingly make a false statement in her declaration.” R., Doc. 167
at 47.
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 I’m not going to allow you to reopen to admit [Exhibit 410] because that
doesn’t give the opportunity to the plaintiff to adequately cross-examine
that evidence. It was referred to when you showed it to Mr. Jeffs. If you
had intended to offer [it] in evidence, it should have been done during your
or Ms. Keene’s testimony. It wasn’t done. At this point to reopen it after
closing argument would be extremely prejudicial.
R. at 480. We see no abuse of discretion in the district court’s decision not to reopen the

trial proceedings to admit Exhibit 410. See Morsey v. Chevron, USA, Inc., 94 F.3d 1470,

1477 (10th Cir. 1996) (“A motion to reopen a case to receive additional evidence is

committed to the sound discretion of the trial court and will be reversed only for abuse of

discretion.”).

II. Conclusion

We affirm the district court’s judgment with the exception of its determination that

Ms. Widman is the prevailing party, which is found at ¶11 of the Amended Memorandum

Decision, R. Doc. 167 at 52, and ¶6 of the Judgment, R. Doc. 168. We vacate and

remand the prevailing-party determination to the district court to explain the rationale for

its decision.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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