Miera v. First Sec. Bank of Utah, N.A.

• Decision Date: 07 November 1985
• Docket Number: 83-2297,Nos. 83-2101,s. 83-2101
• Citation: 776 F.2d 902
• Parties: Glenda MIERA, et al., Plaintiffs-Appellees and Cross-Appellants, v. FIRST SECURITY BANK OF UTAH, N.A., a Utah banking corporation, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 902

776 F.2d 902

Glenda MIERA, et al., Plaintiffs-Appellees and Cross-Appellants, v. FIRST SECURITY BANK OF UTAH, N.A., a Utah banking corporation, Defendant-Appellant and Cross-Appellee.

Nos. 83-2101, 83-2297.

United States Court of Appeals Tenth Circuit.

Nov. 7, 1985.

Thomas A. Quinn (Penny A. Rodeen of Ray, Quinney & Nebeker, with him on brief), Salt Lake City, Utah, for defendant-appellant and cross-appellee.

Parker M. Nielson, Salt Lake City, Utah, for plaintiffs-appellees and cross-appellants.

Before McKAY and McWILLIAMS, Circuit

Judges, and BALDOCK, ^* District Judge.

McWILLIAMS, Circuit Judge.

This is an appeal by the First Security Bank of Utah, the defendant, from a final judgment entered by the Hon. Bruce S. Jenkins, a United States District Court Judge for the District of Utah, in favor of Glenda Miera and others, the plaintiffs. The final judgment was based, in part, on a partial summary judgment entered some nine years prior thereto by the Hon. Willis W. Ritter, then a United States District Judge for the District of Utah, but now deceased. Our study of the matter convinces us beyond doubt that procedural irregularities leading up to the entry of partial summary judgment for the plaintiffs, including the entry of the partial summary judgment itself, dictate a reversal of the final judgment. A chronology of events will demonstrate that the proceedings culminating in the partial summary judgment violated local court rules, the Federal Rules of Civil Procedure, and procedural due process to the end that the First Security Bank of Utah, hereinafter referred to as the Bank, was not afforded a meaningful hearing before the trial court entered the partial summary judgment. ¹

The individual plaintiffs, and the class they represent, are mixed blood members of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah, and are referred to by the parties as Terminated Utes. On April 20, 1973, the plaintiffs brought the present action against the Bank, and no one else, alleging violations of the Securities Exchange Act of 1934, 15 U.S.C. Secs. 78aa and 78j (1982), and Rule 10b-5, 17 C.F.R. 240.10b-5 (1985). The present complaint was intended to parallel the complaint filed in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), hereinafter referred to as the Reyos case. The underlying action in Reyos was filed in the United States District Court for the District of Utah in 1965, some eight years prior to the filing of the present complaint. The trial judge in Reyos, after trial, entered judgment in favor of the plaintiffs. On appeal, we reversed and remanded for further proceedings. Reyos v. United States, 431 F.2d 1337 (10th Cir.1970). On certiorari, the Supreme Court, insofar as the Reyos phase of the case concerned the Bank, reversed and, in effect, reinstated the judgment of the trial court. Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). For background matter, see those two cases. Since we are deciding the present appeal on the basis of procedural irregularities, we will not here concern ourselves with the substantive matters.

As stated, the plaintiffs filed the present complaint on April 20, 1973. On May 14, 1973, the Bank filed a motion to dismiss, claiming that the complaint failed to state a claim, that the action was not properly maintainable as a class action, and that the action was barred by the applicable statute of limitations. On July 27, 1973, the district court, by order, continued the hearing on the motion of the Bank, subject to renewal at the time of trial, on the basis of the Bank's claim that the action was not properly maintainable as a class action. At the same time, the district court set the case for trial on the October 1, 1973, calendar, with discovery to be completed prior to that date. However, on September 19, 1973, after a further hearing on the Bank's motion to dismiss, the trial court, by order, held that the case would proceed as a class action and denied the Bank's motion to dismiss.

Some three days prior to its order of class certification, the Clerk of Court, on September 17, 1973, sent, in accordance with local procedure, a notice to counsel concerning a pretrial order. That notice read as follows:

The above entitled case is now at issue.

By direction of the court, counsel are to stipulate the issues involved in this case and prepare an appropriate pretrial order for approval by the court within ten (10) days after receipt of this notice. If difficulties arise, and a stipulation cannot be reached between counsel, please advise the deputy clerk in order that this matter may be set down for pretrial conference before the court.

PLEASE NOTE : ANY REASON FOR NON-COMPLIANCE MUST BE APPROVED BY THE COURT.

On September 25, 1973, the Bank filed a motion to vacate the trial setting of October 1, 1973, and also to vacate the order of September 17, 1973, requiring a pretrial order to be filed within ten days. ² The reason given by the Bank was insufficient time to take essential depositions and to otherwise be ready for trial. The certificate of mailing of the motion to vacate was dated September 25, 1973.

On September 26, 1973, the clerk of court advised counsel that the Bank's motion to vacate the trial setting and the order requiring the filing of a pretrial order would be heard at ten o'clock a.m. on September 28, 1973. Court minutes indicate that there was a short hearing held on September 28, 1973, at 10:00 a.m., at the conclusion of which the district court denied the Bank's motion to vacate the trial setting and the order requiring the filing of a pretrial order, and at the same time also denied the Bank's motion to disqualify the presiding judge and the Bank's request that it be allowed an immediate appeal. Plaintiffs' motion for a protective order which would prohibit the taking of the depositions of certain of the plaintiffs was summarily granted, without allowing counsel for the Bank to even address the matter.

On the same day of the hearing on the Bank's motion to vacate, September 28, 1973, plaintiffs filed with the district court what it denominated as a "proposed" pretrial order. The certificate of mailing indicated that a copy of the proposed pretrial order was mailed to the Bank's counsel on September 27, 1983. From our reading of the transcript of the hearing held on September 28, 1973, no reference was made by anyone to the proposed pretrial order filed with the court by plaintiffs on that same date. However, later on that same day, i.e., September 28, 1973, the district court signed, without any change, the proposed pretrial order filed with the court that same day by counsel for the plaintiffs. The pretrial order thus signed by the district court is appended to this opinion as an attachment No. 1.

On October 2, 1973, the Bank filed an original proceeding in this Court seeking to enjoin the commencement of trial and all other proceedings, which request was denied by our order of November 8, 1973.

On October 3, 1973, the plaintiffs filed a motion for summary judgment on the issue of liability alone. This motion is attached to our opinion as attachment No. 2. The Bank thereafter filed several motions of its own seeking summary judgment in its favor. These motions came on for hearing on February 5, 1974, at the conclusion of which the district court denied all motions of the Bank and granted plaintiffs' motion for summary judgment on the issue of liability. Counsel for plaintiffs thereafter prepared a proposed order entering partial summary judgment which the judge signed on February 20, 1974. The Bank's counsel later filed objections to the entry of partial summary judgment, which were overruled.

The partial summary judgment referred to a special master only the issue of the "quantum of recovery" for each individual plaintiff and each individual member of the class. The special master held numerous hearings and some five years later filed a report. Thereafter, by memorandum and order, Judge Jenkins, having succeeded Judge Ritter who in the interim had died, approved the report of the master and entered a final judgment. Miera v. First Security Bank of Utah, No. C 126-73 (D.Utah, August 3, 1983) (Memorandum and Order). In that memorandum, Judge Jenkins noted that the Bank sought reconsideration of a number of the earlier rulings made by Judge Ritter, including the entry of the pretrial order and the partial summary judgment. Judge Jenkins, however, denied the Bank's request for reconsideration with the observation that the Bank's "most appropriate avenue of review [was not reconsideration by a successor judge in the case, but] is to be found in the appellate process." Id. at 3.

We recognize that the present appeal by the Bank (No. 83-2101) is from the order of final judgment entered by Judge Bruce Jenkins on August 3, 1983, ³ not Judge Ritter's order granting summary judgment. However, it is quite clear from the district court's Memorandum and Order, filed simultaneously with the entry of final judgment, that Judge Jenkins not only declined to reconsider, inter alia, the order of Judge Ritter granting summary judgment to the plaintiffs on the issue of liability, but that, insofar as the liability issue is concerned, the final judgment was based on the partial summary judgment granted plaintiffs by Judge Ritter. So, the propriety of Judge Ritter's order granting summary judgment to the plaintiffs on the liability question is an issue in the present appeal. Any suggestion that the Bank is somehow estopped from raising that matter in the present appeal is without merit. The Bank has attempted in about every possible way, including unsuccessful original proceedings in this Court, to contest about everything the district court did, including the granting of partial summary judgment. See Miera v. First Security Bank of Utah, No. C 126-73 (D.Ut...