McKibben v. Chubb

• Decision Date: 26 February 1988
• Docket Number: No. 86-1218,86-1218
• Citation: 840 F.2d 1525
• Parties: Fred T. McKIBBEN, Plaintiff/Appellant, v. Janet A. CHUBB, and Merrill Lynch, Pierce, Fenner and Smith, Inc., Defendants/Appellees. Leland Morris, Jr., and Virginia Morris, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1525

840 F.2d 1525

Fred T. McKIBBEN, Plaintiff/Appellant, v. Janet A. CHUBB, and Merrill Lynch, Pierce, Fenner and Smith, Inc., Defendants/Appellees.

Leland Morris, Jr., and Virginia Morris, Defendants.

No. 86-1218.

United States Court of Appeals, Tenth Circuit.

Feb. 26, 1988.

Margie J. Phelps, Phelps-Chartered, Topeka, Kan., for plaintiff/appellant.

Deanne Watts Hay and Stanley R. Parker, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, Kan., for defendant/appellee, Janet A. Chubb.

Floyd E. Gehrt, Gehrt & Roberts, Chartered, Topeka, Kan., for defendant/appellee, Merrill Lynch, Pierce, Fenner and Smith, Inc.

Before MCKAY, LOGAN and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

In this diversity action, Fred T. McKibben, plaintiff below, appeals from judgment in favor of Janet A. Chubb and Merrill Lynch, Pierce, Fenner and Smith, defendants, on a variety of tort claims alleging conspiracy, outrageous conduct and interference related to the estate of McKibben's brother. We affirm the decision of the district court. ¹

I.

Ula V. McKibben died on October 21, 1983. This appeal, brought by his surviving brother, Fred T. McKibben, concerns two related occurrences: (1) the drafting and execution of Ula McKibben's will, and (2) an alleged gift of stock that Ula owned shortly before his death. During August 1983, Ula McKibben was living at his home in Topeka, Kansas with Leland Stanley Morris. On or before August 24, 1983 Morris phoned defendant Janet A. Chubb, told her that Ula was ill and asked that she prepare a will for Ula. On August 24, Chubb brought a will to Ula McKibben's home, where it was executed and witnessed. The will left substantially all of Ula McKibben's assets to Morris. Shortly after the will was executed, Ula was hospitalized in Kansas. In September, Ula's condition improved and his brother Fred took Ula to his home in Mississippi. Ula's recovery was brief, however. He was hospitalized again in Mississippi and died on October 21, 1983. ² After Ula McKibben's death, the will was admitted to probate by the Kansas court. Fred McKibben, the plaintiff in this action, contested the validity of the will, but was unsuccessful. ³

In addition, in August 1983, Morris prepared a letter to defendant Merrill Lynch, Pierce, Fenner and Smith, Inc. ("Merrill Lynch") asking that certain shares of stock owned by Ula McKibben be transferred to Morris. Morris signed Ula McKibben's name to the letter. On August 29, 1983, Merrill Lynch completed the transfer and sent a statement to Ula reflecting the changes in the account. Subsequently, Morris requested, in his own name, cash for a fractional share of stock and the stock certificates for the remaining shares. Merrill Lynch mailed a check to Morris on September 22, 1983 and stock certificates on September 29, 1983. During this period, after Ula had been moved to Mississippi, Fred learned of the stock transfer from the notice mailed to Ula by Merrill Lynch. Ula told Fred that he had no recollection of authorizing or directing Morris to write the letter to Merrill Lynch. Through his attorney, Fred contacted Merrill Lynch on September 27, 1983, asserting that the letter of transfer was forged and asking Merrill Lynch to stop the transfer. A letter making the same request, and including a power of attorney signed by Ula McKibben was received by Merrill Lynch on October 3, 1983.

In addition to contesting the will in the Kansas probate proceeding, Fred McKibben brought this diversity action in federal court against Morris, Chubb, and Merrill Lynch, alleging a variety of tortious acts in connection with the disposition of Ula's property. The district court granted summary judgment to defendants Chubb and Merrill Lynch on all claims and certified those judgments as final under Fed.R.Civ.P. 54(b). McKibben appeals the judgments in favor of Chubb and Merrill Lynch. The claims against Morris are not part of this appeal.

McKibben launches a broad attack on the district court decision. Regarding defendant Chubb, the appeal alleges that the district court erred by: (1) dismissing the claim for interference with inheritance; (2) granting summary judgment for Chubb on the claim for civil conspiracy; and (3) granting summary judgment for Chubb on the claim for intentional infliction of emotional distress. Against defendant Merrill Lynch, the appeal charges that the court erred by: (1) dismissing the claim for interference with inheritance; (2) granting summary judgment for Merrill Lynch on McKibben's survival claim for fraudulent stock transfer; and (3) granting summary judgment for Merrill Lynch on the claim for intentional infliction of emotional distress. Against both defendants, Fred McKibben argues that summary judgment was inappropriate because genuine issues of material fact remain in dispute and that the district court erred in certifying those judgments for appeal.

II.

We turn first to the procedural claims against both defendants. "When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied." Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986) (citations omitted). "In determining whether any genuine issues of material fact exist, the record must be construed liberally in favor of the party opposing the summary judgment." McVay v. Western Plains Corp., 823 F.2d 1395, 1398 (10th Cir.1987). However, conclusory allegations by the party opposing summary judgment are not sufficient to establish an issue of fact and defeat the motion. Id. Finally, we may affirm the granting of summary judgment if any proper ground exists to support the district court's ruling. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1124 (10th Cir.), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979).

In this case, Fred McKibben asks that we reverse the district court's summary judgment but identifies no specific material facts in dispute and cites no factual disagreements in the record. Furthermore, our own review discloses no genuine issues of material fact. Accordingly, summary judgment is an appropriate remedy if the substantive law has been correctly applied.

Fred McKibben also argues that the district court improperly granted final judgment certification under Fed.R.Civ.P. 54(b). ⁴ The certification allows the appeals against Chubb and Merrill Lynch to proceed, even though the claims against Morris are still pending.

Certification under Rule 54(b) is a two-step process. Initially, the district court must determine that the judgment is final. Curtiss-Wright Corp. v. General Elect. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980); Wheeler Machinery v. Mountain States Mineral Enter., Inc., 696 F.2d 787, 789 (10th Cir.1983). The judgment "must be 'final' in the sense that it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.' " Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. at 1464, (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956)); see also Wheeler Machinery, 696 F.2d at 789. Second, the district court must determine that there is no just cause for delay. Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465. We have characterized this determination as a balancing test, weighing "Rule 54(b)'s policy of preventing piecemeal appeals against the hardship or injustice that might be inflicted on a litigant because of the delay." United Bank of Pueblo v. Hartford Accident & Indem. Co., 529 F.2d 490, 492 (10th Cir.1976) (citation omitted). The Supreme Court has suggested that the district court should "consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465. The district court considered these factors and weighed the resulting equities in favor of finality for both Chubb and Merrill Lynch. ⁵

In reviewing the certification by the district court, we are told by Curtiss-Wright that the "proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are juridicially sound and supported by the record." Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466. We are directed to "scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals," but if that evaluation is correct, "the discretionary judgment of the district court should be given substantial deference," and we "should disturb the trial court's assessment of the equities only if [it] ... was clearly unreasonable." Id.

Fred McKibben asserts that there is a "legal and factual identity" among the claims against Chubb and Merrill Lynch and the remaining defendant, Morris. Our review of the record finds that the district court's determination is correct. While there is a common factual predicate for the claims, i.e., Ula McKibben's death, the claims against the three defendants are based on different actions. Chubb's drafting of the will and Merrill Lynch's transfer of the stock are fully separable from the alleged wrongful conduct by Morris. Moreover, we do not find that the district court's weighing of the equities is "clearly unreasonable." Accordingly, we reject Fred McKibben's argument that Rule 54(b) certification was improper and proceed to review the merits of the appeal.

III.

The district court dismissed the claims of interference with inheritance against both defendants, relying on the reasoning of Maxwell v. Southwest Nat'l Bank, 593 F.Supp. 250 (D.Kan.1984). In Maxw...