Hallquist v. United Home Loans, Inc.

• Decision Date: 17 May 2013
• Docket Number: No. 12–3281.,12–3281.
• Citation: 715 F.3d 1040
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Todd L. HALLQUIST; Teresa R. Hallquist, Plaintiffs–Appellants v. UNITED HOME LOANS, INC., Defendant SunTrust Mortgage, Inc.; Federal National Mortgage Association; Millsap & Singer, PC, Defendants–Appellees.

715 F.3d 1040

Todd L. HALLQUIST; Teresa R. Hallquist, Plaintiffs–Appellants

v. UNITED HOME LOANS, INC., DefendantSunTrust Mortgage, Inc.; Federal National Mortgage Association; Millsap & Singer, PC, Defendants–Appellees.

No. 12–3281.

United States Court of Appeals, Eighth Circuit.

Submitted: April 9, 2013.

Filed: May 17, 2013.

John Dale Wiley, Crane, MO, for appellant.

Bradley J. Baumgart, Erin Rose McClemon, Kansas City, MO, for appellee SunTrust Mortgage, Inc. and Federal National Mortgage Association.

Michael Wambolt, Leawood, KS, for appellee Millsap & Singer, PC.

Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Todd L. and Teresa R. Hallquist owned a house in Missouri. They had a loan secured by a Deed of Trust on the house. The Hallquists defaulted. The house was sold at a non-judicial foreclosure sale. The Hallquists sued the lender, the holder of the Deed of Trust at the time of sale, and the successor trustee. The district court ¹ granted the defendants' motions to dismiss. Hallquist v. United Home Loans, Inc., No. 11–04265–CV–C, 2012 WL 1980656, at *6 (W.D.Mo. June 1, 2012). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In October 2008, the Hallquists borrowed $211,000 from United Home Loans. To secure the loan, they pledged a Deed of Trust on their house in Camdenton, Missouri. The Deed of Trust conveyed the beneficial interest to Mortgage Electronic Registration Services, Inc. In 2011, MERS conveyed its interest to SunTrust Mortgage, Inc., which appointed Millsap & Singer, PC as successor trustee.

Millsap conducted a non-judicial foreclosure sale of the house on August 25, 2011. Millsap submitted the winning credit bid on behalf of SunTrust. After the sale, a Successor Trustee's Deed Under Foreclosure was recorded, listing the Federal National Mortgage Association (Fannie Mae) as the buyer at the sale.

In October 2011, the Hallquists filed a five-count suit alleging various improprieties in the foreclosure sale. The Hallquists also sought to quiet title and to enjoin eviction. The defendants moved to dismiss the suit. The district court granted the motions and entered judgment. Hallquist, 2012 WL 1980656, at *6.

The Hallquists filed a motion to reconsider, challenging the dismissal of Count II (breach of fiduciary duty) and Count III (quiet title). The district court denied it. The Hallquists filed a notice of appeal, which said they were appealing the denial of the motion to reconsider. In their briefing to this court, the Hallquists challengethe district court's underlying dismissal.

II.

This court must first determine what issues the Hallquists may appeal. The defendants contend that only the denial of the motion to reconsider ² is on appeal because it was the only order identified in the notice of appeal. By their statement of the issues, the Hallquists seek a review of the underlying dismissal. This distinction is significant for the standard of review. “This court reverses a denial of a motion for reconsideration ‘only for a clear abuse of discretion’....” United States ex rel. Raynor v. Nat'l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 957 (8th Cir.2012), quoting Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 863 (8th Cir.2011). On the other hand, this court reviews de novo the grant of a motion to dismiss. Turkish Coal. of Am., Inc. v. Bruininks, 678 F.3d 617, 623 (8th Cir.2012), citing Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir.2008).

“To vest [this court] with jurisdiction over an appeal, the appellant must comply with Federal Rule of Appellate Procedure 3.” Martin v. Am. Family Mut. Ins. Co., 157 F.3d 580, 581 (8th Cir.1998) (per curiam). An appellant must file a notice of appeal that “designate[s] the judgment, order, or part thereof being appealed.” Fed. R.App. P. 3(c)(1)(B). “Rule 3's dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). “Rule 3(c) ‘is more than a mere technicality,’ and failure to comply with it ‘may create a jurisdictional bar to appeal.’ ” USCOC of Greater Mo. v. City of Ferguson, Mo., 583 F.3d 1035, 1040 (8th Cir.2009), quoting ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 189 (8th Cir.1995); see also Burgess v. Suzuki Motor Co., 71 F.3d 304, 306 (8th Cir.1995) (“The requirement of Federal Rule of Appellate Procedure 3(c) that a notice of appeal ‘designate the judgment, order, or part thereof appealed from’ is a jurisdictional prerequisite of the appellate court.”). The Hallquists' Notice of Appeal indicates they are appealing “the order entered August 27, 2012 that denied Plaintiff's Motion to Reconsider.” The defendants thus conclude that appellate jurisdiction is limited to the motion to reconsider.

This court liberally construes notices of appeal. E.g., USCOC, 583 F.3d at 1040,citing Berdella v. Delo, 972 F.2d 204, 207 (8th Cir.1992). “Although a court may construe the Rules liberally in determining whether they have been complied with, a court may not waive the jurisdictional requirement of Rule 3 if it finds that it has not been met.” Burgess, 71 F.3d at 306,citing Torres, 487 U.S. at 317, 108 S.Ct. 2405. “Permitting imperfect but substantial compliance with a technical requirement is not the same as waiving the requirement altogether as a jurisdictional threshold.” Torres, 487 U.S. at 315–16, 108 S.Ct. 2405. This court has jurisdiction over the underlying order if the appellant's intent to challenge it is clear, and the adverse party will suffer no prejudice if review is permitted. E.g., USCOC, 583 F.3d at 1040. Generally, “a notice which manifests an appeal from a specific district court order or decision precludes an appellant from challenging an order or decision that he or she failed to identify in the notice.” Id., quoting Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir.2002). However, “[e]ven when the notice of appeal is deficient, jurisdiction may be established by a properly filed appeal information form (required by Local Rule 3B) which indicates the appellant's intent to appeal a particular order.” Id. at 1040 n. 4,citing ELCA, 53 F.3d at 189;see also Burgess, 71 F.3d at 307 (“This court, in determining the scope of this appeal, can rely on both the notice of appeal and appeal information form.”).³

Here, the Hallquists filed their appeal information form on the same day as the notice of appeal. The form listed the following issues for appeal:

1. Trial Court erred in dismissing Plaintiff's claim to quiet title.

2. Trial Court erred in dismissing Plaintiff's claim for breach of fiduciary duty.

3. Trial Court erred in dismissing Plaintiff's claim for negligence per se.

4. Trial Court erred in dismissing Plaintiff's claim for violations of RESPA.

5. Trial Court erred in dismissing Plaintiff's claim for injunctive relief.

This court faced a similar situation in Burgess. There, the appellant's notice of appeal listed only a motion for new trial. However, “the appeal information form filed with his notice of appeal liste[d] specific errors in jury instructions and evidentiary rulings.” Burgess, 71 F.3d at 306. “Burgess's listing of the specific errors on the appeal information form shows that he intended to appeal the judgment and not merely the order denying the motion for new trial.” Id. at 307.⁴ So too here, where the appeal information form demonstrated the Hallquists' intent to appeal the underlying judgment. The defendants have not demonstrated any prejudice if review is permitted. They were on notice of the Hallquists' intent as expressed in the appeal information form.

Immediately above the listed issues on the appeal information form is the following statement:

LIST OF ISSUES ON APPEAL (For administrative purposes). You may indicate that this also serves as your statementof issues under FRAP 10(b)(3). ____ Yes. v No.

Because the Hallquists checked “no,” the defendants suggest that the form did not give notice of an intent to appeal the underlying judgment. This court disagrees. Rule 10(b)(3) addresses identifying the issues in order to ensure the correct portion of the transcript is ordered. SeeFed. R.App. P. 10(b)(3). Even though the Hallquists checked “no,” the rest of the form identifies the issues they intended to appeal.

This court has jurisdiction over the underlying judgment. The defendants also assert that if this court has jurisdiction, it should only include the claims for quiet title and breach of fiduciary duty—the two addressed in the Hallquists' motion to reconsider. Not so. All five counts were listed on the appeal information form, and will be considered.

III.

The Hallquists make three arguments, but appear to challenge the court's ruling on only the counts to quiet title and for breach of fiduciary duty. “Claims not raised in an opening brief are deemed waived.” FTC v. Neiswonger, 580 F.3d 769, 775 (8th Cir.2009), quoting Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir.2008). To the extent the Hallquists did intend to challenge other counts, this court affirms for the reasons articulated in the district court's well-reasoned order. Hallquist, 2012 WL 1980656, at *1–6.

The counts properly challenged are reviewed de novo, because they were dismissed for failure to state a claim. See Turkish Coal., 678 F.3d at 623,citing Owen, 533 F.3d at 918. “To survive a motion to dismiss, a complaint must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Gomes v. Am. Century Cos., Inc., 710 F.3d 811, 815 (8th Cir.2012), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A.

The Hallquists argue that the district court “erred in deciding that Appellants have no standing to challenge the accuracy of a Trustee's Deed.” They...