Ten Mile Indus. Park v. Western Plains Service Corp.
| Decision Date | 02 February 1987 |
| Docket Number | 84-2387,Nos. 84-2386,s. 84-2386 |
| Citation | 810 F.2d 1518 |
| Parties | TEN MILE INDUSTRIAL PARK, Property Owners Association, Inc., K & H Enterprises, Inc., Wheatland Corporation, Ten Mile Village, Inc., Monkey Ward Land Co., Inc., K & K Land and Development Co., a partnership, Darrel Hoberg, Gwenn Hoberg, Ronald Koenekamp, Karen Koenekamp, Dale Harrington, Wanda Harrington, William W. Kramer, Janet A. Kramer and Maryon Wilson, Plaintiffs-Appellants, v. WESTERN PLAINS SERVICE CORPORATION, a South Dakota corporation, John P. Clark, Frank D. Everett, Lloyd K. Pugh, Curtis L. Cameron, E.W. Boyles and Floyd Snyder, Jr., all as individuals, as directors of WPSC, as members of WPSC's Executive Committee and as officers and employees of each of their respective S & Ls, William R. Simpson, Elmer Koehn, Pat Bohan all as individuals, as directors of WPSC and as employees and officers of their respective S & Ls, United Federal Savings & Loan, Aberdeen, South Dakota, Mitchell Home Savings & Loan, Mitchell, South Dakota, First Federal Savings & Loan, Rapid City, South Dakota, First Federal Savings & Loan, Watertown, South Dakota, Yankton Savings & Loan, Yankton, South Dakota, as South Dakota S & Ls, as stockholders of WPSC, as employers of the directors and members of the executive committee of WPSC, and principals of their agents, and Midwest Federal Savings & Loan Association, a North Dakota Savings and Loan as principal of its agents, Defendants-Appellees. Charles HUBBELL, Yvonne Hubbell, Lincoln Homes, a Wyoming corporation, James H. Tolhurst, Carol Tolhurst, David J. Tolhurst, Tolhurst Construction, Inc., a Wyoming corporation, Tolhurst Construction, Inc., a Utah corporation, and Edward R. Brandt, Plaintiffs-Appellants, v. WESTERN PLAINS SERVICE CORP., a South Dakota corporation; Delbert M. Bjordahl, as an employee of WPSC and agent of S & Ls; Ron L. Brown, as an agent of WPSC; John P. Clark, Edward Meekins, Frank D. Everett, Lloyd K. Pugh, Curtis L. Cameron, E.W. Boyles, Floyd Synder, Jr., all as individuals, as directors of WPSC, as members |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jack R. Gage, Hanes, Gage & Burke, P.C., Cheyenne, Wyo., for plaintiffs-appellants.
James L. Applegate (Glenn Parker, Hirst & Applegate, with him on the brief) Hirst & Applegate, Cheyenne, Wyo., for defendants-appellees Mitchell Home Sav. & Loan, William R. Simpson, Home Trust Sav. & Loan, Vermillion, S.D.
Paul J. Hickey (Mary L. Scheible, Bagley, Hickey, Evans & Statkus, with him on the brief) Bagley, Hickey, Evans & Statkus, Cheyenne, Wyo., for defendants-appellees Lloyd K. Pugh, Curtis L. Cameron, John P. Clark, Frank D. Everett, E.W. Boyles, Floyd W. Snyder, Jr., First Federal Sav. & Loan of Rapid City, S.D., First Federal Sav. & Loan of Watertown, S.D., United Federal Sav. & Loan of Aberdeen, S.D., and Yankton Sav. & Loan of Yankton, S.D.
Ward A. White, Guy, Williams, White & Argeris, Cheyenne, Wyo., for defendants-appellees Pat Bohan, M.O. Broschat, and Midwest Federal Sav. & Loan Ass'n, a N.D. Sav. & Loan Ass'n.
Before BARRETT, MOORE and BALDOCK, Circuit Judges.
Cases 84-2386 (Ten Mile) and 84-2387 (Hubbell) have been consolidated on appeal for purposes of record, briefing, argument and submission. Due to the similarity of the issues, both cases will be decided in this order and judgment. To the extent an issue is unique to only one of the cases, the discussion of that issue will be expressly limited to that case. References to the record on appeal will be made jointly. The first reference will be to the record in 84-2386, and the second reference to 84-2387. Where the reference is to only one record on appeal, a blank will be left or the single reference will be expressly indicated.
Plaintiffs-appellants in both of these cases appeal the district court's dismissal of their claims against the respective defendants-appellees. Appellees filed motions to dismiss the claims against them for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The district court concluded that it did not have jurisdiction over the appellees, and dismissed the claims against them. We affirm.
The facts pertinent to this appeal may be easily summarized despite the number of parties and separate transactions. Western Plains Service Corporation (WPSC), a South Dakota corporation, made loans to the several appellants in these cases for various Wyoming real estate projects. WPSC is owned by several South Dakota savings and loan associations, and its executive committee is made up of officers or directors from each association. These savings and loans (S & L's), along with a North Dakota S & L, entered into loan participation agreements with WPSC. The S & L's, through the participation agreements, advanced money to WPSC. WPSC then loaned this money out to various developers, including the appellants.
The various projects of the appellants all failed, the appellants defaulted on their obligations to WPSC, and WPSC began foreclosure proceedings. Ten Mile Industrial Park conveyed its property to WPSC by deed in lieu of foreclosure, and WPSC then conveyed the property to Plateau Development Corporation, a Wyoming corporation owned by the same S & L's which had advanced the money to WPSC for the Ten Mile loan. Rec. vol. I at 314, ___. Tolhurst, one of the appellants in the Hubbell case, executed quitclaim deeds on August 14, 1981, and a deed in lieu of foreclosure on October 9, 1981, in favor of WPSC. Rec. ___, vol. I at 121-129. WPSC in turn conveyed the property to those associations which had advanced money to WPSC for the Tolhurst loan, giving each S & L a specified percentage of interest in the property. Rec. ___, vol. II at 339-340.
The appellants brought suit in Wyoming federal court against WPSC, its president and an employee/agent, the officers and directors of WPSC, the stockholders of WPSC, one S & L who participated in the loans but was not a stockholder, and the chief executive officer and senior vice president of this participating S & L. Appellants' complaints alleged breach of contract for not loaning all monies promised, fraud, negligence on the part of the executive committee, illegal tying arrangements (Hubbell only), tortious interference with business relationships, slander of business reputation and credit (Hubbell only), and sought punitive damages. Rec. vol. I at 1-17, vol. I at 1-17. Appellants also sought to disregard the corporate status of WPSC. The parties agreed to dismiss WPSC from the cases because it was insolvent. Rec. vol. I at 389, vol. II at 648. The president of WPSC, as well as the alleged employee/agent of WPSC, were not named in the Ten Mile case and not served in the Hubbell case because they had filed for bankruptcy. The S & L's and their chief executive officers who were only directors of WPSC were dismissed from the cases by the district court.
Appellants do not challenge any of the above dismissals. Nevertheless, they are appealing the district court's dismissal of certain appellees for lack of personal jurisdiction. Among the appellees are six members of the executive committee: Pugh, Cameron, Clark, Everett, Boyles and Snyder. These individual appellees also were the chief executive officers of their respective S & L's, which S & L's were among the several shareholders of WPSC. The S & L's which employed Cameron and Everett have ceased doing business, and have since been taken over by a third S & L. Neither the former associations nor the S & L which took them over are parties to this appeal. However, the associations which employed the remaining four executive committee appellees are themselves appellees in these cases: First Federal Savings and Loan of Rapid City, South Dakota; First Federal Savings and Loan of Watertown, South Dakota; United Federal Savings and Loan of Aberdeen, South Dakota; and Yankton Savings and Loan of Yankton, South Dakota.
In addition, Home Trust Savings and Loan, Vermillion, South Dakota, one of the shareholders in WPSC, is an appellee in the Hubbell case due to its participation in the Tolhurst loan and its ownership interest in the Tolhurst property. Finally, Midwest Federal Savings and Loan, Minot, North Dakota, as well as its chief executive officer (Broschat) and a senior vice president (Bohan), are appellees in both cases due to Midwest Federal's participation in the Ten Mile and Tolhurst loans, its interest in Plateau Development Corporation which holds the Ten Mile property, and its ownership interest in the Tolhurst property. Midwest Federal was not a shareholder in WPSC, nor were Broschat or Bohan on WPSC's executive committee.
One group of appellees argues that this appeal should be dismissed as moot because appellants have filed a similar action in South Dakota federal court after the dismissals in these cases. These appellees contend that the filing of the action in South Dakota constitutes appellants' acquiescence in the Wyoming judgment, thus effectively mooting the appeal.
The mootness doctrine arises from the case or controversy requirement of article III, section 2 of the United States Constitution. Thournir v. Buchanan, 710 F.2d...
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