605 F.2d 1169 (10th Cir. 1979), 79-1102, St. Louis Baptist Temple, Inc. v. Federal Deposit Ins. Corp.

Docket Nº:79-1102.
Citation:605 F.2d 1169
Party Name:CA 79-3511 ST. LOUIS BAPTIST TEMPLE, INC., a Missouri non-profit corporation, Plaintiff-Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, a United States Corporation, and Harold E. Bray, Sheriff of Jefferson County, Colorado, Defendants-Appellees.
Case Date:September 19, 1979
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1169

605 F.2d 1169 (10th Cir. 1979)

CA 79-3511 ST. LOUIS BAPTIST TEMPLE, INC., a Missouri

non-profit corporation, Plaintiff-Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, a United States

Corporation, and Harold E. Bray, Sheriff of

Jefferson County, Colorado, Defendants-Appellees.

No. 79-1102.

United States Court of Appeals, Tenth Circuit

September 19, 1979

Submitted July 30, 1979.

Page 1170

Hannegan, Knight, Kennedy, Schoeneberg & Weber, Inc., St. Charles, Mo., for plaintiff-appellant.

Lowell White of White & Steele, P. C., Denver, Colo., for defendant-appellee Federal Deposit Ins. Corp.

No brief for plaintiff-appellee Harold E. Bray, Sheriff of Jefferson County.

Before McWILLIAMS, BARRETT and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

This is an appeal by St. Louis Baptist Temple, Inc. (Temple), a Missouri non-profit corporation, plaintiff below, from a summary judgment granted on the motion of the Federal Deposit Insurance Corporation (FDIC), a United States corporation, and Harold E. Bray, Sheriff of Jefferson County, Colorado, defendants below.

The FDIC became involved with the "recoupment" of Rocky Mountain National Bank following its closure resulting from insolvency. The FDIC elected to charter a new bank and to place cash into it to purchase "acceptable assets" pursuant to Colorado statutes and subject to the jurisdiction of the District Court of Jefferson County, Colorado. The new bank, Colorado National Bank of Lakewood, received some $3,000,000.00 from FDIC for the "unacceptable assets" which FDIC then undertook to collect. One of the "unacceptable assets" was a note executed by Soldiers of the Cross, Inc. (Soldiers) payable to Rocky Mountain Bank. After FDIC obtained state court judgment on the note against Soldiers, it pursued proceedings to execute upon certain real property in Jefferson County in satisfaction. This resulted in issuance of a Sheriff's Deed to FDIC.

This action originated when Temple filed a complaint, as the alleged successor in title of Soldiers by mesne conveyances, in the District Court in and for the County of Jefferson, State of Colorado, in May, 1978. The complaint alleged, Inter -Alia, that Temple was the legal and record owner of the real property situate in the County of Jefferson, Colorado, which was the subject of the Sheriff's Sale made in support of execution on the judgment granted FDIC against Soldiers. The suit challenged the validity of the sale by Sheriff Bray to FDIC in satisfaction of a judgment debt of $19,742.52 on the grounds that the property was of the alleged value of $250,000.00 and, further, that the sale was defective inasmuch as the publication of the Notices of Sheriff's Sale were not made in accordance with Colorado statutes and were, accordingly, violative of the Due Process Clause of

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the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Section 25 of the Constitution of the State of Colorado. Temple prayed for this relief: That the purported Sheriff's Sale be set aside and that all ownership rights of Temple be restored or, in the alternative, that Temple be awarded damages of $250,000.00 (presumably representing the value of subject property) and additional damages of $100,000.00, together with attorney's fees.

FDIC and Bray, hereinafter referred to jointly as appellees, removed the action to the United States District Court for the District of Colorado. Appellees filed Answers followed by Motions and Briefs for Summary Judgment, with attached exhibits. Temple, in turn, filed a Reply Brief in opposition to the Motions for Summary Judgment with attached exhibits. In addition to the exhibits attached to the respective briefs of the parties, certain pertinent exhibits were filed concurrent with the filing of appellees' Reply Brief on October 2, 1978. The relevant exhibits contained in the file, considered by the District Court in granting the Motions for Summary Judgment, together with all of the pleadings and briefs of the parties, are: (a) an annual registration report executed by Bill Beeny, President of St. Louis Baptist Temple, Inc., on January 24, 1974, with the Secretary of State, State of Missouri; (b) Proof of Publication and copy of Publication of Sheriff's Sale of the subject real property by Sheriff Bray upon Writ of Execution aforesaid; (c) Sheriff Bray's Certificate of Purchase dated April 3, 1973, evidencing execution sale held on January 18, 1972, of the subject property to FDIC, as plaintiff, and against Soldiers, defendant, duly recorded; (d) Sheriff Bray's Deed dated April 20, 1973, to FDIC conveying the subject property, duly recorded; (e) The District Court's Memorandum Opinion in Civil No. C-4227, filed June 17, 1976, wherein FDIC was plaintiff and Soldiers of the Cross and Dorothy Goff Memorial Library, Inc., (Goff) non-profit organizations, were defendants; (f) Judgment of the District Court in Civil No. C-4227 in favor of FDIC and against Soldiers and Goff, dated June 18, 1976; (g) Opinion No. 76-1921, filed March 3, 1978, by the United States Circuit Court of Appeals, Tenth Circuit, affirming the District Court's judgment in Civil No. C-4227.

Following a full hearing held November 20, 1978, the District Court granted the motions for summary judgment on the ground that ". . . everything included in it (the case) has been litigated and re-litigated in both the state and federal courts. I think that the United States Court of Appeals spoke rather convincingly last time around, and I rule on the basis of the truism that litigation has to come to an end someday." (R., Vol. I, p. 80).

On appeal, Temple contends that the District Court erred in granting the motions for summary judgment in that: (1) the court went beyond the record in this case and considered records in other and distinct cases involving other parties which were not offered or received in evidence and which did not consider the issues raised here, (2) the court failed to treat the allegations in the complaint regarding the validity of the Sheriff's Sale which can only be decided by trial on the merits, and (3) the court apparently based its action on the grounds of Res judicata and/or collateral estoppel, neither of which apply because the validity of the Sheriff's Deed was not raised in prior litigation. Thus, Temple contends that "it is very clear that there are germane issues as to material facts in dispute" rendering summary judgment an inappropriate remedy. (Brief of appellant, p. 8).

Upon review, the appellate court is guided by the principle that summary judgment cannot be granted unless the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.Rules Civ.Proc., rule 56(c), 28 U.S.C.A.; Ando v. Great Western Sugar Company, 475 F.2d 531 (10th Cir. 1973). Significantly applicable in this case is the rule that a district court

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may utilize the doctrines underlying judicial notice in hearing a motion for summary judgment substantially as they would be utilized at trial. Chandler v. O'Bryan, 311 F.Supp. 1121 (D.C.Okl.1969), Reversed on other grounds, 445 F.2d 1045 (10th Cir. 1971), Cert. denied,405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972); Wright & Miller, Federal Practice and Procedure: Civil § 2723; 6 Moore's Federal Practice, § 56.11(1.-7). Thus, a court may: consider stipulations, concessions of counsel, transcripts, exhibits and other papers, 6 Moore's Federal Practice, § 56.11(1.-8); take judicial notice, whether requested or not (Fed.Rules Evid. Rule 201, 28 U.S.C.A.) of its own records and files, and facts which are part of its public records. 29 Am.Jur.2d, Evidence, § 85. Judicial notice is particularly applicable to the court's own records of prior litigation closely related to the case before it. Chandler v. O'Bryan, supra ; Randy's Studebaker Sales, Inc. v. Nissan Motor Corporation, 533 F.2d 510 (10th Cir. 1976); Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972), Cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973); Insurance Company of North America v. National Steel Service Center, Inc., 391 F.Supp. 512 (N.D.W.Va.1975), Affirmed, 529 F.2d 515 (4th Cir. 1976); 9 Wigmore Evidence, Section 2579 (3rd Ed.); Hunter, Federal Trial Handbook, § 50.10 (1974). And, generally, that which may be judicially noticed need not be pleaded. Buell v. Sears, Roebuck and Co., 321 F.2d 468 (10th Cir. 1963).

The doctrine of judicial notice has been utilized, Sua sponte, when the defending party's motion for summary judgment is predicated on affirmative defenses such as Res judicata or collateral estoppel, as in the case at bar. 6 Moore's Federal Practice, § 56.08, pp. 56-136. The proposition that a court may take judicial notice of its records and files has frequently proved useful in summary judgment proceedings. 6 Moore's Federal Practice, § 56.11(9); 29 Am.Jur.2d, Evidence, § 14. The scope and reach of the doctrine of judicial notice has been enlarged over the years until today it includes those matters that are verifiable with certainty. 9 Wigmore, Evidence, 3rd Ed., 1940, § 2571; Wright & Miller, Federal Practice and Procedure, Civil, § 2410. Thus, this court has held that a court may, Sua sponte, take judicial notice of its own records and preceding records if called to the court's attention by the parties. Ginsberg v. Thomas, 170 F.2d 1 (10th Cir. 1948). Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. Chandler v. O'Bryan,...

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