Lipin v. Wisehart Springs

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

FOR THE TENTH CIRCUIT January 15, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JOAN CAROL LIPIN,

Plaintiff - Appellant,

v. No. 20-1007
(D.C. No. 1:19-CV-00935-RBJ)
WISEHART SPRINGS INN, INC.; (D. Colo.)
ARTHUR D. WISEHART, in his
individual capacity and in his capacity as
President and “Alter-Ego” of Wisehart
Springs Inn, Inc.; MARK APELMAN;
DEBBIE GRIFFITH, in her official
capacity as Delta County Assessor;
REBECCA W. GEYER; ELLEN E.
WISEHART; RICHARD HUNTER
KREYCIK; ERIN M. JAMESON,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges.
_________________________________

Plaintiff Joan C. Lipin appeals the dismissal, pursuant to Fed. R. Civ. P.

12(b)(6), of her claims arising out of a dispute over property in Paonia, Colorado (the

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
“Property”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment

of the district court. Further, we conclude the appeal is frivolous. Accordingly, we

invite Defendants to move for an award of sanctions pursuant to Fed. R. App. P. 38,

and we direct Lipin to respond by the designated deadline. We also sua sponte

impose filing restrictions on Lipin, subject to any objection she files within twenty

days from the date of this decision.

BACKGROUND

This action is one of several brought by Lipin arising out of a dispute

concerning ownership of the Property. She has pursued this matter in federal and

state court, in this jurisdiction and others. The majority of the underlying facts

surrounding the dispute are set forth in Lipin v. Wisehart, 760 F. App’x 626, 629–32

(10th Cir. 2019) (“Lipin I”) (per curiam), and we need not restate them here. In Lipin

I, this court affirmed the district court’s grant of summary judgment against Lipin.

The undisputed material facts established that the Property was owned by the

Dorothy R. Wisehart Trust, Arthur McKee Wisehart (“AMW”) and Arthur Dodson

Wisehart (“ADW”) were co-trustees of the Trust, documents purporting to convey

the Property to AMW himself and/or to Lipin were invalid, and Lipin had no

ownership interest in the Property whatsoever. We rejected Lipin’s challenges to the

district court’s conclusions and found her appeal to be frivolous, ultimately assessing

sanctions in the amount of $15,000 pursuant to Fed. R. App. P. 38 and imposing

filing restrictions until Lipin paid the sanctions.

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 Approximately two-and-a-half months after we decided Lipin I, Lipin filed this

action, once again asserting she was the true owner of the Property and seeking

declaratory relief to that effect. She again sought ejectment of Defendants and

compensatory damages. In this suit, she added claims for violations of the Racketeer

Influenced and Corrupt Organizations Act, claims for violations of her civil rights

under 42 U.S.C. § 1983, and assorted allegations of fraud, conspiracy, and civil theft.

She named all of the defendants from the first action as well as Mark Apelman, the

Wiseharts’ attorney; Debbie Griffith, the Delta County assessor; and Ellen Geyer, an

Indiana attorney who served as an expert witness for the defendants in Lipin I.

Lipin’s history of litigation misconduct is well documented. Indeed, multiple

courts have surveyed and documented cases throughout the country in which she has

been sanctioned for her behavior, including the filing of frivolous suits. See, e.g.,

Lipin v. Hunt, 573 F. Supp. 2d 836, 842–43 (S.D.N.Y. 2008) (discussing six prior

cases in which Lipin was sanctioned for litigation misconduct); Lipin v. Hunt,

No. 14-cv-1081-(RJS), 2015 WL 1344406, at *1 & n.1 (S.D.N.Y. Mar. 20, 2015)

(collecting twelve such cases). The District Court for the Southern District of New

York has stated: “[Lipin’s] modus operandi is clear: she litigates variations of the

same meritless claims against an ever-growing group of defendants over and over.

Once [Lipin] receives the inevitably unfavorable decision, she simply brings the

lawsuit again, adding lawyers, judges, and court clerks as defendants.” Lipin v. Hunt,

2015 WL 1344406, at *11. The district court in this case found that this “is precisely

what she has done here.” R. Vol. 2 at 33. The court therefore dismissed Lipin’s

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amended complaint under Rule 12(b)(6) and imposed filing restrictions barring her

from bringing any further pro se lawsuits in the District of Colorado, in her name or

anyone else’s name, “which raise[] her claim of ownership of the Paonia property” or

related claims without first obtaining judicial leave. Id. at 39.

We consider the legal issues raised on appeal and take measures to redress

Lipin’s repeated abuse of the litigation process.

DISCUSSION

Initially, we note that large portions of Lipin’s briefs are devoted to irrelevant,

conclusory, and incomprehensible argument. Fed. R. App. P. 28(a)(8)(A) requires

that an appellate brief include “appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies.”

Arguments that consist of “mere conclusory allegations with no citations to the

record or any legal authority for support” do not meet this requirement and may be

deemed waived. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841

(10th Cir. 2005). 1 With these precepts established, we turn to the three issues Lipin

raises on appeal.

1
This is not the first time this court has found deficiencies in Lipin’s written
submissions to this court. Her briefing in Lipin I was replete with similar problems.
See Lipin v. Wisehart, 760 F. App’x at 633. Further, our resolution of the issues in
this appeal does not depend on our construction of Lipin’s pleadings: even if we
construed her arguments more generously, we would readily conclude they were
meritless.

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 1. Issue Preclusion

Lipin first argues the district court misapplied the doctrines of claim and issue

preclusion in its order dismissing her case and imposing filing restrictions. We agree

with the district court that issue preclusion applies here, so we need not consider the

applicability of claim preclusion (res judicata).

Collateral estoppel, also referred to as issue preclusion, “bars a party from

relitigating an issue once it has suffered an adverse determination on the issue, even

if the issue arises when the party is pursuing or defending against a different claim.”

Park Lake Res. LLC v. U.S. Dep’t Of Agric., 378 F.3d 1132, 1136 (10th Cir. 2004).

The district court concluded, and Lipin does not dispute, that each of her claims in

this action depended on a finding that she has an ownership interest in the Property.

Thus, because it was conclusively established in Lipin I that Lipin does not have any

ownership interest in the Property, see Lipin, 760 F. App’x at 632–35, if collateral

estoppel applies, the district court properly dismissed her claims.

We apply a four-part test to determine whether collateral estoppel applies:

(1) the issue previously decided is identical with the one
presented in the action in question, (2) the prior action has
been finally adjudicated on the merits, (3) the party against
whom the doctrine is invoked was a party or in privity with
a party to the prior adjudication, and (4) the party against
whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.

Murdock v. Ute Indian Tribe of Uintah & Ouray Rsrv., 975 F.2d 683, 687 (10th Cir.

1992) (internal quotation marks omitted). We have no trouble concluding those

elements are met here.

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 Regarding the first element, the relevant issue is whether Lipin has any interest

in the Property. In her amended complaint, Lipin alleges that she is “the legal title

owner, in fee simple absolute, of [the Property].” R. Vol. 1 at 246. Her claims for

relief demand damages, declaratory relief that she is the owner of the Property, and

ejectment of Defendants from the Property. Id. at 272. She is not entitled to such

relief if, as the district court held, she is not the legal owner of the Property. Lipin

does not challenge this conclusion on appeal. Instead, she appears to argue the

ownership of the Property was not fully decided in Lipin I. This contention, though,

is plainly belied by the court’s summary judgment order in the earlier case, which we

summarized in our decision affirming the same:

In February 2018, the district court denied Lipin’s
summary judgment motion, granted Defendants’
cross-motion, and entered judgment for Defendants. In
doing so, the court found there were no material disputed
facts and that as a matter of law AMW and ADW were
co-trustees of the Trust pursuant to the Appointment of
Co-Trustee document and that AMW had no right as a
co-trustee to convey the Property to himself individually. .
. . [T]he district court held the Trust continued to own the
Property because AMW held no interest in it when he
quit-claimed his interest to Lipin in 2016. As a result, the
district court held, Lipin’s trespass and ejectment claims
necessarily failed and Defendants were entitled to
summary judgment.

Lipin I, 760 F. App’x at 631. The first element of collateral estoppel is therefore met.

Regarding the second element, we have “recognize[d] that summary judgment

operates as an adjudication on the merits.” Goichman v. City of Aspen, 859 F.2d

1466, 1471 n.13 (10th Cir. 1988). Lipin does not contest this well-established

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principle. She does argue, however, that the prior adjudication of her ownership of

the Property was not “final” because the defendants in Lipin I obtained the judgment

against her through fraud. She relies upon Fed. R. Civ. P. 60(d)(1) and (3), which

allow a court to “entertain an independent action to relieve a party from a judgment,

order, or proceeding” or to “set aside a judgment for fraud on the court.” But Lipin’s

amended complaint did not ask the district court to set aside the judgment that we

affirmed in Lipin I; instead, she recast substantially all of the substantive allegations

made in the first action and added new defendants. Moreover, Lipin’s RICO claims

in this action do not undermine the preclusive effect of the judgment that this court

affirmed in Lipin I. See Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1187

(10th Cir. 2014) (“[T]he remedies under RICO do not include setting aside a prior

judgment or undermining its preclusive effect by a collateral attack.”). And the type

of “fraud” Lipin describes in her amended complaint—false statements, fraudulent

documents, and perjurious testimony regarding Defendants’ ownership interest in the

Property—does not rise to the level of fraud on the court, as is required for relief

under Rule 60(d)(3):

Fraud on the court . . . is fraud which is directed to the
judicial machinery itself and is not fraud between the
parties or fraudulent documents, false statements or
perjury. . . . It is thus fraud where the court or a member is
corrupted or influenced or influence is attempted or where
the judge has not performed his judicial function—thus
where the impartial functions of the court have been
directly corrupted.

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Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985). We therefore

conclude that Lipin I was finally adjudicated on its merits, notwithstanding Lipin’s

allegations in the present suit. The second element of collateral estoppel is therefore

satisfied.

The third and fourth elements are satisfied as well. The doctrine is invoked

against Joan Lipin, the plaintiff here and in Lipin I, so privity exists. “In the context

of a defendant’s motion for summary judgment, a plaintiff has a full and fair

opportunity to litigate if it is allowed to submit evidence to defeat a motion for

summary judgment.” Matosantos Com. Corp. v. Applebee’s Int’l, Inc., 245 F.3d

1203, 1211 (10th Cir. 2001). Lipin was allowed to, and did, submit evidence in

opposition to the motion for summary judgment in Lipin I. She also moved for

summary judgment herself. Lipin I, 760 F. App’x at 631. She thus had a full and fair

opportunity to support her claim that she owns the Property.

Because all four elements of collateral estoppel are satisfied, the district court

correctly dismissed Lipin’s amended complaint.

The district court also dismissed some of Lipin’s claims against Griffith (the

Delta County assessor) and Geyer (the attorney who served as an expert in the prior

litigation) under the Colorado Governmental Immunity Act and the doctrine of

testifying witness immunity, respectively. We affirm these dismissals for

substantially the same reasons set forth in the district court’s well-reasoned order

dated January 3, 2020. See R. Vol. 2 at 37–38.

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 2. Judicial Notice

Lipin next argues the district court erred by taking judicial notice of Lipin I

when it dismissed her complaint on the basis of issue preclusion without converting

the motion to a Fed. R. Civ. P. 56 motion for summary judgment. She further argues

the district court erred by not taking judicial notice of an affidavit in another case.

These arguments lack merit. A district court has authority to “take judicial notice of

its own records to evaluate preclusion.” Knight, 749 F.3d at 1187; see also Gee v.

Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010) (“The district court properly referred

to its records to dismiss these allegations.”) (finding claim preclusion). Moreover,

because the facts of Lipin I conclusively establish that Lipin is not entitled to any of

the relief she seeks in the instant action, her reference to an affidavit in another case

is immaterial.

3. Disqualification

Last, Lipin asserts the district court erred in denying her cross-motion to

disqualify Apelman as counsel for some of the Defendants. Her argument on this

issue consists only of a single, conclusory sentence accompanied by citations to three

non-binding authorities and lacking any explanation or analysis whatsoever. Under

these circumstances, we conclude Lipin waived her challenge to the district court’s

order denying her motion to disqualify. See Garrett, 425 F.3d at 841.

SANCTIONS

All Defendants have argued that sanctions are appropriate under Fed. R. App.

P. 38 because the appeal is frivolous. “An appeal is frivolous when the result is

9
obvious, or the appellant’s arguments of error are wholly without merit.” Braley v.

Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (internal quotation marks omitted).

Other indicia of a frivolous appeal include rambling briefs, citation to irrelevant

authority, and continued attempts to relitigate matters already concluded. See id. at

1513 (collecting cases from other circuits finding such conduct frivolous). It is

particularly troubling that the sanctions that multiple courts have imposed on Lipin

for repeated abuse of the judicial process have not meaningfully deterred her

conduct.

Before we can impose sanctions for a frivolous appeal, the person who may be

subject to sanctions must receive notice that sanctions are being considered and an

opportunity to respond. Id. at 1514-15; see Fed. R. App. P. 38 (stating court may

award sanctions “after a separately filed motion or notice from the court and

reasonable opportunity to respond”). Because Defendants have not requested

sanctions in a separately filed motion, Lipin has not had an opportunity to respond to

their request. We could provide such an opportunity by ordering Lipin to show cause

as to why we should not sanction her under Rule 38, but we would also like to

receive additional information from Defendants to help inform our sanctions

decision.

Just as we did in Lipin I, therefore, we order that, within fifteen days of this

order and judgment, Defendants file a motion describing in detail the sanctions

sought and the basis therefor. Lipin shall have fifteen days from the last-filed

submission by Defendants to show cause why she should not be sanctioned. The

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parties’ submissions on this subject will guide our determination regarding the

imposition and size of an appropriate monetary sanction. All parties shall comply

with the length limits in Fed. R. App. P. 27(d)(2); if, however, Defendants file

separate motions and Lipin elects to file a unitary response, her response must not

exceed thirty pages. The parties need not provide hard copies of their filings.

FILING RESTRICTIONS

“Federal courts have the inherent power to regulate the activities of abusive

litigants by imposing carefully tailored restrictions under appropriate circumstances.”

Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Filing restrictions are

appropriate where the litigant’s lengthy and abusive history is set forth; the court

provides guidelines as to what the litigant may do to obtain its permission to file an

action; and the litigant receives notice and an opportunity to oppose the court’s order

before it is implemented. Id.

We conclude that Lipin’s previous appellate filings warrant imposing limited

restrictions upon her with respect to further pro se filings with this court. Therefore,

in order to proceed pro se in this court in any civil appeal or original proceeding for

mandamus or prohibition that raises the same or similar issues relating to the

Property as asserted in Tenth Circuit Case Nos. 18-1060, 18-1176, and 20-1007,

Lipin must provide this court with:

1. A list of all appeals or original proceedings filed concerning the

Property, whether currently pending or previously filed with this court, including the

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name, number, and citation, if applicable, of each case, and the current status or

disposition of each appeal or original proceeding; and

2. A notarized affidavit, in proper legal form, which recites the issues she

seeks to present, including a short discussion of the legal basis asserted therefor, and

describing with particularity the order being challenged. The affidavit must also

certify, to the best of Lipin’s knowledge, that the legal arguments being raised are not

frivolous or made in bad faith; that they are warranted by existing law or a good faith

argument for the extension, modification, or reversal of existing law; that the appeal

or original proceeding is not interposed for any improper purpose, such as delay or to

needlessly increase the cost of litigation; and that she will comply with all appellate

and local rules of this court.

These filings shall be submitted to the Clerk of the court, who shall forward

them for review to the Chief Judge or his designee, to determine whether to permit

Lipin to proceed with a pro se civil appeal or original proceeding. Without such

authorization, the matter will be dismissed. If the Chief Judge or his designee

authorizes a pro se appeal or original proceeding to proceed, an order shall be entered

indicating that the matter shall proceed in accordance with the Federal Rules of

Appellate Procedure and the Tenth Circuit Rules.

Lipin shall have twenty days from the date of this decision to file written

objections, limited to fifteen pages, to these proposed restrictions. Unless this court

orders otherwise upon review of any objections, the restrictions shall take effect

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thirty days from the date of this order and judgment and shall apply to any appeal

filed by Lipin after that time.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

Defendants are invited to move for an award of sanctions against Lipin, and Lipin

shall respond by the designated deadline. In addition, Lipin shall have twenty days

from the date of this decision to file written objections to the proposed filing

restrictions.

Entered for the Court

Allison H. Eid
Circuit Judge

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