17 F.3d 1269 (10th Cir. 1994), 93-3043, Homeland Stores, Inc. v. Resolution Trust Corp.

Docket Nº:93-3043.
Citation:17 F.3d 1269
Party Name:HOMELAND STORES, INC., Plaintiff-Appellee, v. RESOLUTION TRUST CORPORATION, Defendant-Appellant, and Bob's Super Saver, Inc., Defendant.
Case Date:February 23, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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17 F.3d 1269 (10th Cir. 1994)

HOMELAND STORES, INC., Plaintiff-Appellee,




Bob's Super Saver, Inc., Defendant.

No. 93-3043.

United States Court of Appeals, Tenth Circuit

February 23, 1994

Rehearing Denied April 25, 1994.

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P. Matthew Sutko (Munsell St. Clair, Counsel, Resolution Trust Corporation, Washington, D.C.; Richard A. Shull, Senior Attorney, Kansas City Consolidated Office, Resolution Trust Corporation, Kansas City, Missouri; and Kirk K. Van Tine, Wendy J. Lang, Kelly A. Riley, and Linda C. Wang, Baker & Botts, L.L.P., Washington, D.C., with him on the briefs), Counsel, Resolution Trust Corporation, Washington, D.C., for the Defendant-Appellant.

Harvey D. Ellis, Jr. (L.E. Stringer, Crowe & Dunlevy, Oklahoma City, Oklahoma; and James D. Oliver, Foulston & Siefkin, Wichita, Kansas, with him on the brief), Crowe & Dunlevy, Oklahoma City, Oklahoma, for the Plaintiff-Appellee.

Before TACHA, GOODWIN [*], and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

The district court found that it has jurisdiction to hear Homeland Stores' claims against the Resolution Trust Corporation ("RTC"). The court then certified for interlocutory appeal and the RTC now appeals the district court's ruling. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1292(b) and affirm.

I. Background

Mid Kansas Savings & Loan Association of Wichita, Kansas ("Mid Kansas"), and First Federal Savings & Loan Association of Coffeyville, Kansas ("First Federal"), succeeded to ownership of the Belmont Square Shopping Center ("Belmont Square") in Parsons, Kansas. Homeland Stores, Inc. ("Homeland") was assigned a lease in Belmont Square and operates a retail grocery store there.

In 1989, pursuant to 12 U.S.C. Secs. 1464(d)(2) and 1441a(b), the RTC was appointed receiver for both First Federal and Mid Kansas. As part of this receivership, the RTC took over management of Belmont Square, a receivership asset.

Homeland's Belmont Square lease provides for the presence of an "anchor tenant" in a 40,000 square foot space in the shopping

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center. After the original anchor tenant, T.G. & Y., and a subsequent anchor tenant vacated that space, the RTC leased it to Bob's Super Saver, Inc. ("Bob's"). Homeland contends that RTC's execution of the lease to Bob's violates Homeland's lease which calls for the presence of T.G. & Y. or some other anchor tenant "similar" to T.G. & Y. and "acceptable" to Homeland. Homeland asserts that Bob's is neither a similar nor an acceptable anchor tenant because Bob's runs the same type of store as is run by Homeland itself.

Homeland filed suit against the RTC in the United States District Court for the District of Kansas alleging a material breach of its lease and seeking monetary damages and injunctive relief. Homeland also contends that the RTC has failed to maintain adequately the Belmont Square parking lot and seeks monetary damages on this basis as well.

The RTC moved, under Fed.R.Civ.P. 12(b)(6), to dismiss Homeland's action for failure to state a claim upon which relief can be granted. The RTC argued that: (1) pursuant to 12 U.S.C. Sec. 1821(j), the injunctive relief requested by Homeland is not available, and (2) pursuant to 12 U.S.C. Sec. 1821(d)(13)(D), the district court does not have jurisdiction to hear Homeland's damages claims. In an October 13, 1992 order, the district court denied the RTC's motion. It found that because Homeland's claims are not creditor claims arising before Mid Kansas and First Federal entered receivership, but rather are claims arising from actions of the RTC in managing a receivership asset, they are not subject to the administrative claims process required under 12 U.S.C. Secs. 1821(d)(3)-(13). As a result, the district court found that it has jurisdiction to hear Homeland's claims. With respect to the possibility of relief, the court found that, while 12 U.S.C. Sec. 1821(j) prohibits injunctive relief against the RTC, relief in the form of monetary damages could be granted.

After denying the RTC's motion to reconsider, the district court certified its October 13, 1992 order for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b). The court expressly declined Homeland's request to certify the specific question as to whether injunctive relief is available against the RTC, though the issue was discussed in its October 13, 1992 order. On February 23, 1993, we granted the RTC's petition to appeal the interlocutory order under 28 U.S.C. Sec. 1292(b).

II. District Court's Sec. 1292(b) Certification and

Homeland's Motion to Raise Related Issue

We first address Homeland's motion that it be permitted in this interlocutory appeal to raise the issue of whether injunctive relief is available against the RTC. The motion is denied.

Our jurisdiction to hear this appeal arises pursuant to 28 U.S.C. Sec. 1292(b). Under Sec. 1292(b), a district court may certify for appeal an otherwise unappealable interlocutory order if the court determines that "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id. In this case, the question of law the district court intended to certify is whether federal court jurisdiction over Homeland's claims against the RTC is barred under 12 U.S.C. Sec. 1821(d)(13)(D). The district court, however, explicitly refused to certify the additional question of whether injunctive relief is available against the RTC, though the court discussed that issue in the same order in which it ruled on jurisdiction. Nevertheless, Homeland asks us to address the question of the availability of injunctive relief.

The district court certification requirement of Sec. 1292(b) is to be taken seriously. It was not included in the original Sec. 1292(b) legislation as proposed but specifically was added to the final version as a necessary screening mechanism for interlocutory appeals. 16 Charles A. Wright, et al., Federal Practice and Procedure Sec. 3929, at 138 (1977). However, Homeland correctly points out that it is the district court order that is certified under Sec. 1292(b) and not the specific question of law deemed controlling by the district court. See

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