F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 17 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
OUT OF LINE SPORTS, INC.,
Plaintiff-Appellant,
v. No. 99-1173
ROLLERBLADE, INC.,
Defendant,
BREIT, BOSCH, LEVIN &
COPPOLA, P.C.,
Movant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 96-B-2406)
Peter A. Jaffe (Douglas Jaffe with him on the briefs) of The Law Offices of Peter
A. Jaffe, McCoy, Colorado, for Plaintiff-Appellant.
Phillip S. Figa of Burns, Figa & Will, Englewood, Colorado, for Movant-
Appellee.
Before BALDOCK, MCKAY, and ALARCÓN, * Circuit Judges.
*
The Honorable Arthur L. Alarcón, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
BALDOCK, Circuit Judge.
Plaintiff Out of Line Sports, Inc. (OLS) hired Movant Breit, Bosch, Levin
& Coppola, P.C. (Breit Bosch) to represent it in a patent infringement suit against
Defendant Rollerblade, Inc. After OLS and Rollerblade settled, Breit Bosch filed
a notice of attorney’s lien under Colo. Rev. Stat. § 12-5-119 (1999) against OLS’s
settlement funds. The district court granted Breit Bosch’s motion to enforce its
lien. OLS appeals. Our jurisdiction arises under 28 U.S.C. § 1291. We conclude
that OLS’s claims are moot and grant Breit Bosch’s motion to dismiss the appeal.
I.
In 1996, OLS sued Rollerblade in federal district court for patent
infringement regarding a braking mechanism for in-line skates. Breit Bosch
agreed to represent OLS and entered into a one third contingency fee contract. In
March 1998, Rollerblade offered to settle the case . After Breit Bosch offered to
reduce its contingency fee , OLS reluctantly accepted the confidential settlement. 1
Rollerblade deposited the settlement funds into the court registry, and the district
court dismissed with prejudice all claims against Rollerblade.
Following the settlement with Rollerblade, OLS hired outside counsel and
notified Breit Bosch that it believed that the firm had coerced it into accepting the
1
This court notes that all records and documents in this case were ordered
sealed. The order sealing all records and documents remains in effect.
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settlement and violated the Colorado Rules of Professional Conduct.
Subsequently, Breit Bosch filed a notice of attorney’s lien in the district court
pursuant to § 12-5-119 claiming an interest in the settlement funds. Breit Bosch
also filed a motion to enforce its lien. The district court released about half of the
funds to OLS pursuant to OLS’s and Breit Bosch’s joint stipulation. Later, the
district court granted Breit Bosch’s unopposed motion for the release of
additional funds to Breit Bosch for undisputed costs and expenses.
After a two-day hearing, the district court ordered the lien enforced, finding
the contingency fee contract and the requested costs and expenses reasonable.
Breit Bosch received its one third contingency fee plus costs and 8% interest.
Thereafter, OLS and Breit Bosch filed a joint motion to release funds. The
district court ordered the funds disbursed in accordance with the joint motion.
OLS appeals the district court’s order enforcing the lien, arguing that the district
court erred in refusing to admit evidence allegedly revealing Breit Bosch’s
misconduct. Breit Bosch filed a motion to dismiss the appeal for mootness, which
we consider first.
II.
“To qualify as a case fit for federal court adjudication, an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.” Arizonans for Official English v. Arizona , 520 U.S. 43, 67
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(1997) (internal quotations omitted). “Mootness is a threshold issue because the
existence of a live case or controversy is a constitutional prerequisite to federal
court jurisdiction.” McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10th
Cir. 1996).
An appeal is moot if the court of appeals can no longer grant effective
relief because the object of the suit has been transferred. For example, in Koger
v. United States , 755 F.2d 1094 (4th Cir. 1985), the court dismissed the appeal of
a tax lien as moot because the taxpayers paid the deficiency while the appeal was
pending, releasing the lien. Id. at 1096-97. Similarly, in Newpark Shipbuilding
& Repair, Inc. v. M/V Trinton Brute , 2 F.3d 572 (5th Cir. 1993), the court
dismissed the appeal as moot because it could provide no effective relief to the
defendant. The plaintiff, a shipbuilder, won a judgment in an in rem action
against a ship it had repaired. Id. at 572-73. The defendant’s appeal was moot
because the plaintiff purchased the ship at a foreclosure sale and sold the ship
back to the defendant. Id. at 573. Finally, courts have dismissed bankruptcy
appeals as moot where the bankruptcy court granted a creditor relief from the
automatic stay, the debtor failed to obtain a stay of that order pending appeal, and
the creditor already conducted a foreclosure sale. In re Western Pac. Airlines ,
181 F.3d 1191, 1195 (10th Cir. 1999); In re Egbert Dev. L.L.C. , 219 B.R. 903,
905 (B.A.P. 10th Cir. 1998); In re Whatley , 169 B.R. 698, 701 (D. Colo. 1994).
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In this case, the object of the suit—the settlement funds—has already been
transferred by the district court’s release of the funds from the registry of the
court. We must consider Colorado law to determine whether we can grant
effective relief to OLS or whether the joint motion releasing the remaining funds
in the court registry has satisfied Breit Bosch’s lien. See Jenkins v. Weinshienk ,
670 F.2d 915, 919 (10th Cir. 1982) (applying Colorado law under § 12-5-120 to
determine the existence of an attorney’s retaining lien on files). Colorado’s
charging lien statute allows attorneys to file a lien on
money, property, choses in action, or claims and demands in their
hands, on any judgment that they may have obtained or assisted in
obtaining, in whole or in part, and on any and all claims and demands
in suit for any fees or balance of fees due or to become due from any
client.
Colo. Rev. Stat. § 12-5-119. The charging lien satisfies the attorney’s equitable
claim for services rendered to the client. In re Benney , 790 P.2d 319, 322 (Colo.
1990).
“A party who acts so as to satisfy or comply with a judgment or decree
assumes the risk of rendering his or her appeal moot if such action is done
voluntarily.” FCC Constr., Inc. v. Casino Creek Holdings, Ltd. , 916 P.2d 1196,
1198 (Colo. Ct. App. 1996); see also Van Schaack Holdings, Ltd. v. Fulenwider ,
798 P.2d 424, 427 (Colo. 1990) (“[W]hen the appellant complies with a lower
court’s judgment pending appeal, mooting the question on appeal, the appeal
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should be dismissed.”). The test of whether an appeal is moot is whether the
party acted voluntarily or because of the actual or implied compulsion of judicial
power. FCC , 916 P.2d at 1198. Showing that the party’s compliance was a
consciously performed voluntary act requires more than simple compliance with a
court order or decree. Stenback v. Front Range Fin. Corp. , 764 P.2d 380, 383
(Colo. Ct. App. 1988).
OLS’s filing of a joint motion with Breit Bosch to release the remaining
funds in the court’s registry represents a voluntary action acknowledging
satisfaction of the court’s judgment. Compare id. (concluding that an appeal of a
judgment of an equitable lien on real property was moot after the foreclosure sale
because of the defendant’s voluntary actions, such as disclaiming their desire for
a stay of the judgment and requesting a return of the security they had posted in
the event they did not pay the judgment), with FCC , 916 P.2d at 1198 (resolving
that an appeal of a claim to foreclose a mechanic’s lien was not moot because the
defendant’s compliance with the court’s order was not voluntary).
OLS did not file a motion to stay the judgment, see Stenback , 764 P.2d at
383, or post a supersedeas bond. 2
Nor did OLS attempt to explicitly reserve its
2
Failure to post a supersedeas bond was a factor in determining mootness
in Stenback . Id. at 382. Complying with a court’s order without posting a
supersedeas bond, however, does not automatically moot an appeal. Friedman v.
Colorado Nat’l Bank of Denver , 825 P.2d 1033, 1037-38 (Colo. Ct. App. 1991)
(continued...)
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right to appeal in the joint motion to release the funds. Cf. Oken v. Hammer , 791
P.2d 9, 13 (Colo. Ct. App. 1990) (determining that the appeal was not moot
because the defendant explicitly reserved the right to appeal in the motion
stipulating to the disbursal of funds from the registry of the court). Rather, OLS
and Breit Bosch jointly filed a motion to dispose of all the remaining funds in the
court registry. Breit Bosch received an amount consistent with the district court’s
order enforcing the lien. Furthermore, in two previous motions, OLS and Breit
Bosch agreed to release settlement proceeds to OLS and costs to Breit Bosch.
This pattern, in addition to the voluntary release of the remaining funds in the
court registry, indicates that OLS consciously and voluntarily satisfied the district
court’s judgment. Accordingly, we dismiss OLS’s appeal as moot.
MOTION GRANTED; APPEAL DISMISSED.
(...continued)
2
(noting that the defendant’s financial inability caused its failure to post a
supersedeas bond), aff’d in part, rev’d in part on other grounds , 846 P.2d 159
(Colo. 1993).
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