Tomiyasu v. Golden

• Decision Date: 30 March 1966
• Docket Number: No. 20175.,20175.
• Citation: 358 F.2d 651
• Parties: Uwamie TOMIYASU et al., Appellants, v. Richard GOLDEN et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.2d 651 (1966)

Uwamie TOMIYASU et al., Appellants, v. Richard GOLDEN et al., Appellees.

No. 20175.

United States Court of Appeals Ninth Circuit.

March 30, 1966.

Harry E. Claiborne, Las Vegas, Nev., for appellants.

Howard Babcock, of Babcock & Sutton, Las Vegas, Nev., for appellees.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and KOELSCH, Circuit Judges.

MADDEN, Judge:

Appellants challenge the validity, under the due process clause of the Fourteenth Amendment of the United States Constitution, of a foreclosure sale under a deed of trust, and of the trustee's deed issued to the purchasers at the sale, appellees herein. Specifically, appellants contend the sale and trustee's deed issued pursuant to it deprived them of property without due process of law because they were not given notice of default under the deed of trust or of the foreclosure proceedings and sale. Jurisdiction of the district court was based on diversity of citizenship, 28 U.S.C. § 1332, and on the federal question noted above, 28 U.S.C. § 1331.

The property involved in this case is an eighty acre tract of land in Clark County, Nevada, which at the time of the foreclosure sale in 1962 was owned in undivided thirds by appellants and their father as tenants in common. The land was encumbered by a first deed of trust in the amount of approximately $39,000. In 1959 a second deed of trust encumbering the land was executed by appellants' father to secure an additional indebtedness of approximately $18,000. This second deed of trust was executed on behalf of appellants by the father under powers of attorney which he held from each of them.

The indebtedness secured by the second deed of trust fell into default, and under its terms the trustee was directed by the creditor to sell the property at public auction. Various attempts by the father to refinance the property failed, and appellees bought in the property at the foreclosure sale, subject to the outstanding first deed of trust, for one dollar more than the amount owing on the obligation in default. The property at the time of the sale is alleged to have been worth more than $200,000.

An action in the name of the three Tomiyasus as plaintiffs was thereafter filed against appellees in a Nevada state district court, seeking to set aside the trustee's sale and to cancel and annul the trustee's deed on the grounds of gross inadequacy of price and numerous alleged irregularities in the foreclosure proceedings. Following trial, the state district court entered judgment in favor of the plaintiffs. Appellees appealed from that judgment to the Supreme Court of Nevada, which, finding no irregularities in the sale, and inadequacy of price alone insufficient basis for voiding the sale, reversed the judgment of the lower court and denied all relief.

Thereafter a second action naming the three Tomiyasus as plaintiffs was filed against the appellees and six additional defendants in a Nevada State District Court alleging substantially the same cause of action as had been asserted in the prior state court case. Appellees, as defendants in the second state court action, moved for summary judgment on the ground that the former judgment was a bar to the second suit under the doctrine of res judicata. The trial court granted appellees' motion and entered summary judgment in their favor.¹ On appeal in the second state action the Supreme Court of Nevada affirmed. The United States Supreme Court denied certiorari. Tomiyasu v. Golden, 382 U.S. 844, 86 S.Ct. 89, 15 L.Ed.2d 85 (U.S. Oct. 11, 1965).

On July 21, 1964, the two appellants in our instant case, without their father as a party, filed the present action in the United States District Court for the District of Nevada, again asking that the trustee's sale of the property in question be set aside. In this action appellants base their claim for relief upon the ground that the sale of the property without notice to them violated the due process clause of the Fourteenth Amendment. Appellees again raised the bar of res judicata on the basis of the judgment in the original state court action, and on this ground the district court granted appellees' motion for summary judgment. Appeal to this court followed.

If this case involved only the applicability of the doctrine of res judicata, we would not hesitate to affirm the decision of the district court. The issue of notice was raised in the first state court action. Though the issue as presented there was limited to questions of compliance with the statutory requirements of Nevada law, there appears to be no reason why the constitutional issues pressed here could not also have been raised in that suit. Appellants' contention that a federal right has been violated rests on the allegation that the Nevada statute providing for foreclosure sales under deeds of trusts, as applied to appellants, deprived them of their property without notice and a fair hearing. This is precisely the basis upon which recovery was sought under state law in the state courts. By merely failing to raise the constitutional issue in the state action, appellants could not preserve for themselves the right to enter a federal court at a later date upon the same facts, alleging the same wrong, and seeking the same recovery, simply because they present a new theory of relief based upon the Constitution. Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (1932). If appellants have had one chance to litigate the issues they now raise here, they have had the process which the state owes them and the Constitution secures to them.

Appellants, however, raise an unusual objection to the applicability to them of res judicata in this case. Despite the fact that they were plaintiffs of record in the prior state proceeding relied upon by appellees as res judicata in the instant action, and counsel of record in that proceeding is the same counsel who represents them in this action, appellants contend that they were not party litigants in the prior state court suit. By affidavit in this action appellant Uwami Tomiyasu states that she was not informed about or consulted with concerning the institution or prosecution of any prior action, and that she did not participate in any of the prior proceeding, either in person or by an attorney. She swears that her name as a party plaintiff was included without her consent, notification or knowledge — by the very counsel representing her now. She swears that to her knowledge the reason for this conduct on the part of her present attorney was to prevent the complaint of the real plaintiff in the prior action, her father, from being subject to dismissal for failure to join necessary or indispensable parties. No such affidavit was submitted by the other appellant herein, Kiyo Tomiyasu, but it is asserted that he suffered the same unauthorized appropriation of his name as did his sister.

The circumstances of this claim are unusual, to say the least. But the claim does raise a genuine issue of fact which we do not think the district court was entitled to ignore. If the contention that appellants were not parties to the prior state court action is true, and for the purposes of reviewing the summary judgment below we must assume that it is true, then it would appear that these appellants have not had their day in court and should not be barred by a plea of res judicata from attacking the judgment of the Nevada court insofar as that judgment purports to affect their interest in the property involved. In the first instance, then, the court below erred in disposing of this cause upon appellees' motion for summary judgment.

Further, however, we think that in the unusual circumstances of ...