Vanover v. Cook, No. 99-3314

Citation260 F.3d 1182
Decision Date31 July 2001
Docket NumberNo. 99-3314
Parties(10th Cir. 2001) EDWARD D. VANOVER, Plaintiff-Appellant, v. STEPHANIE J. COOK, formerly known as Stephanie J. Vanover; ROBERT D. HECHT; SCOTT, QUINLAN & HECHT, Law Partnership, Defendants-Appellees
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Appeal from the United States District Court for the District of Kansas (D.C. No. 98-CV-4166-DES) [Copyrighted Material Omitted] James E. Rumsey, Lawrence, Kansas, for Plaintiff-Appellant.

J. Steven Pigg, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas, for Defendants-Appellees.

Before EBEL, BALDOCK and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Edward D. Vanover ("Vanover") appeals the district court's order dismissing his wrongful garnishment action against his ex-wife, Stephanie J. Cook ("Cook"), her attorney, Robert D. Hecht ("Hecht"), and Hecht's law firm, Scott, Quinlan & Hecht (collectively "the Defendants"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In 1996, Hecht represented Cook in two non-wage garnishment proceedings in Kansas state court to collect child support payments which Vanover had failed to honor since 1978. Cook garnished a total of $71,078.21 from an unrelated civil judgment that Vanover had won against an insurance company. Ultimately, the Kansas district court awarded her $53,646 on her claim for unpaid child support and $11,000 in attorneys fees. The award of attorneys fees was reversed on appeal to the Kansas Court of Appeals, but the remaining $53,646 was affirmed. Vanover then sued the Defendants in federal district court seeking actual and punitive damages for wrongful garnishment. The district court dismissed, holding that Vanover was collaterally estopped from relitigating the propriety of the garnishments and that Vanover's complaint was insufficient to allege claims for wrongful garnishment, abuse of process, or malicious prosecution. We now AFFIRM.

I. BACKGROUND

Vanover and Cook were divorced in Gray County, Kansas district court in September 1976, and the court entered an order for child support and alimony against Vanover. In 1996, Cook, through her attorney Hecht, filed two non-wage garnishment actions against Vanover to recover unpaid child support obligations. In June she garnished $16,800, and in September she raised this amount to $71,078.21.1 Both garnishments were addressed to Kansas City Life Insurance Co., which owed Vanover $1.4 million pursuant to a judgment rendered by a federal district court in North Dakota in an unrelated lawsuit. Following a bench trial, a Kansas state district court awarded Cook $53,646 in back child support payments and $11,000 in attorneys fees from the garnished funds. See Vanover v. Vanover, 987 P.2d 1105, 1108 (Kan. Ct. App. 1999).

The Kansas district court made several factual findings which are relevant to this appeal. First, the court held that Vanover had made no formal child support payments after April 1978, although he occasionally made informal payments directly to Cook. The court also rejected Vanover's argument that his child support obligations had become dormant under Kansas law because of Cook's previous failure to take steps to enforce them. Kansas law holds that a judgment becomes dormant after five years if the judgment creditor takes no steps to enforce it, and is extinguished if the creditor fails to file a renewal affidavit within the following two years. See Kan. Stat. Ann. 60-2403, 60-2404. Cook took no steps to enforce Vanover's obligation until she filed a renewal notice of the debt in 1993, and then filed her garnishment actions in 1996. However, the district court found that Cook had delayed enforcing her debt only because of Vanover's assurances he would pay without forcing her to resort to the courts, and held that Vanover was therefore estopped from relying on 60-2403, 2404 to bar the debt.

Vanover appealed to the Kansas Court of Appeals, which reversed the award of attorneys fees but dismissed his challenge to the garnishment order for lack of jurisdiction. See Vanover, 987 P.2d at 1110. The court based its jurisdictional ruling on a supersedeas bond which Vanover filed with the court to perfect his appeal. The bond instrument authorized the district court to pay $21,000 directly to Cook in partial satisfaction of the judgment. The Kansas Court of Appeals held that this partial payment constituted acquiescence in the judgment, which under Kansas law cuts off a party's right of appellate review. See Vanover, 987 P.2d at 1108.

Vanover filed the present action in 1998, while his state appeal was still pending. His complaint seeks damages for wrongful garnishment, alleging that the Defendants' acts were wrongful because Cook's failure to enforce the judgments had caused the majority of them to lapse.2 The district court dismissed Vanover's complaint under Fed. R. Civ. P. 12(b)(6). See Vanover v. Cook, No. 98-4166-DES, slip op. at 1 (D. Kan. Sept. 4, 1999). First, the district court held that Vanover was collaterally estopped from relitigating the issue of his obligation to Cook by the state district court decision awarding her $53,646. Second, the district court found that Vanover's allegations were in the nature of malicious prosecution rather than wrongful garnishment, and therefore considered the sufficiency of his complaint in that light. The district court then held that Vanover failed to allege a claim for malicious prosecution because he had not alleged that the underlying litigation had terminated with a decision in his favor. Finally, the district court held that Vanover had not alleged a claim for abuse of process because there was no allegation that the Defendants initiated the garnishment proceeding for any reason other than collection of the debt which Vanover owed.

Vanover now appeals the district court's order.

II. DISCUSSION

The district court had jurisdiction over this case pursuant to 28 U.S.C. 1332. Vanover now appeals from a dismissal of the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and we have jurisdiction pursuant to 28 U.S.C. 1291.

The legal sufficiency of a complaint is a question of law, and therefore we review de novo a district court's grant of a motion to dismiss under Rule 12(b)(6). See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). In conducting our review,

all well pleaded allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party. A 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Id. (citations and quotations omitted).

"As a federal court sitting in diversity of citizenship litigation, our duty under Erie v. Tompkins principles is of course to conform to [Kansas's] substantive law." Stauth v. National Union Fire Ins. Co. of Pittsburg, 236 F.3d 1260, 1267 (10th Cir. 2001). In the absence of definitive direction from the highest court of the state of Kansas, we must "predict the course that body would take if confronted with the issue." Id.; see also Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).

A. Collateral Estoppel

The first issue presented on appeal is whether Vanover is collaterally estopped from relitigating the Kansas state court's determination that Cook was entitled to garnish $53,646 to satisfy Vanover's unpaid debts. Although Vanover acknowledges that a federal court typically has no power to relitigate questions of state law determined by a state court, he contends that in this case the underlying child support obligations were void under state law, and therefore a judgment enforcing them has no preclusive effect.

Federal courts must give the same preclusive effect to state court judgments that those judgments would be given in courts of the state in which the judgments were rendered. See 28 U.S.C. 1738; Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319, 1322 (10th Cir. 1998). "The preclusive effect of a state court decision . . . is a matter of state law." Id. In Kansas, collateral estoppel:

may be invoked where the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue upon ultimate facts as disclosed by the pleadings and the judgment, (2) the parties must be the same or in privity, and (3) the issue litigated must have been determined and necessary to the judgment.

Jackson Trak Group, Inc. v. Mid States Port Auth., 751 P.2d 122, 128 (Kan. 1988). In this case, the first two elements are satisfied because Vanover specifically litigated the issue of whether the child support judgments filed against him were void. Although the Kansas Court of Appeals did not reach the substantive question of whether Cook's judgments against him were extinguished, the state district court's decision that they were not remains a valid decision on the merits.

Vanover nonetheless contends that these principles do not apply in this case because Kansas law vests no preclusive effect in a void judgment. Vanover cites Kan. Stat. Ann. 60-2403, 60-2404 in support of his argument that the state court judgment was void. Section 60-2403(a)(1) holds that a judgment becomes dormant if no effort at enforcement is made for five years after it is entered or after the last effort at enforcement. Section 60-2404 holds that a dormant judgment may be revived upon certain conditions by the judgment creditor filing a motion for revivor within two years of the date at which the judgment becomes dormant. However, if the judgment remains dormant for two years or longer, the clerk of the court is required to release the judgment of record upon request. See 60-2403(b)(1). Kansas law holds that a judgment which lapses pursuant to these statutes is totally extinguished, so that "there is...

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