Kraemer v. Fox HIlls Owners Association , 697 F. App'x 935 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JENNIE L. KRAEMER,
Plaintiff - Appellant,
v. No. 16-1373
(D.C. No. 1:15-CV-02189-MJW)
FOX HILLS OWNERS ASSOCIATION; (D. Colo.)
FH RESORT LIMITED PARTNERSHIP,
f/k/a Fox Hills Resorts; JOHN F. MAYER;
NASH, SPINDLER, GRIMSTAD &
MCCRACKEN LLP; VIAL
FOTHERINGHAM LLP,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
_________________________________
This pro se appeal stems from a dispute over timeshare fees that originated in
Wisconsin state court in 2010. After a default judgment was entered against her,
plaintiff-appellant Jennie L. Kraemer began a multi-state, multi-venue attack on the
judgment. The Wisconsin state courts have three times rejected her efforts to vacate
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the default judgment, and the Colorado state courts have three times explained that
Ms. Kraemer’s collateral attacks on the Wisconsin judgment under various legal
theories are meritless.
Undeterred, Ms. Kraemer filed a pro se complaint in federal district court,
alleging that defendants-appellees Fox Hills Owners Association; FH Resort Limited
Partnership, f/k/a Fox Hills Resorts; John F. Mayer; and Nash, Spindler, Grimstad &
McCracken LLP (collectively “Fox Hills”) violated the Fair Debt Collections
Practices Act (“FDCPA”). She later amended the complaint to bring FDCPA claims
against defendant-appellee Vial Fotheringham LLP (“Vial”). Both Fox Hills and
Vial moved to dismiss the claims against them, and the district court granted those
motions. Fox Hills and Vial then both moved for attorneys’ fees.
The district court initially awarded attorneys’ fees to Fox Hills, but denied
Vial’s request because Vial had failed to properly substantiate the fees requested in
the motion. Vial moved for reconsideration of the denial of attorneys’ fees with
proper support for its request for fees. The district court granted the motion for
reconsideration, awarded attorneys’ fees to Vial, and entered an amended judgment
reflecting the award of fees to Vial. Ms. Kraemer then filed a motion for
reconsideration of the fee award to Vial. The district court denied that motion and,
shortly thereafter, Ms. Kraemer filed a notice of appeal.1
1
Because Ms. Kraemer is proceeding pro se, we liberally construe the
arguments in her appellate briefs, but we do not act as her advocate. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2
We first address the scope of this appeal and our jurisdiction. The Federal
Rules of Appellate Procedure provide that “[t]he notice of appeal must . . . designate
the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B).
And we have explained that “Rule 3(c)(1)(B)’s designation requirement is
jurisdictional.” Williams v. Akers, 837 F.3d 1075, 1078 (10th Cir. 2016).
Ms. Kraemer’s notice of appeal designated three district court orders dated July 29,
2016 (granting Vial’s motion for reconsideration and awarding fees), August 1, 2016
(entering amended judgment reflecting award of fees to Vial), and September 6, 2016
(denying Ms. Kraemer’s motion for reconsideration of the July 29 order). R., Vol. 3
at 230. We have jurisdiction only to review the orders designated in the notice of
appeal. See Navani v. Shahani, 496 F.3d 1121, 1133 (10th Cir. 2007); Averitt v.
Southland Motor Inn, 720 F.2d 1178, 1180 (10th Cir. 1983). Ms. Kraemer’s pro se
status does not excuse her obligation to comply with the fundamental requirements of
the Federal Rules of Appellate Procedure. See Yang, 525 F.3d at 927 n.1. The scope
of this appeal is therefore limited to the three orders designated in Ms. Kraemer’s
notice of appeal, which all relate to the fee award in favor of Vial.2
2
We also note that any appeal of the district court’s disposition on the merits
of Ms. Kraemer’s claims is untimely. The district court entered judgment on the
merits on April 8, 2016. Ms. Kraemer’s time to appeal from that judgment expired
on June 6, 2016 (thirty days after May 5, 2016, when the district court denied her
timely-filed motion under Fed. R. Civ. P. 59(e)). See Fed. R. App. P. 4(a)(1)(A),
(a)(4)(iv). Accordingly, Ms. Kraemer’s notice of appeal filed on September 12, 2016
is untimely as to the merits judgment. This provides an additional jurisdictional basis
not to reach any of Ms. Kraemer’s arguments that relate to merits issues. See Bowles
v. Russell, 551 U.S. 205, 213 (2007) (“[T]he timely filing of a notice of appeal in a
civil case is a jurisdictional requirement.”).
3
As Vial explained in its motion for attorneys’ fees, it has played a limited role
in the longstanding dispute between Ms. Kraemer and Fox Hills. It first became
involved five years after the dispute began. At that time, Vial entered its appearance
in Denver County District Court on behalf of Fox Hills, who had secured a court
order awarding costs and attorneys’ fees in their favor. To assist Fox Hills with
collecting its award, Vial filed a Writ of Continuing Garnishment against
Ms. Kraemer. The Denver County District Court approved and issued the Writ the
next day, and Vial served the Writ on the garnishee (Ms. Kraemer’s employer). The
employer then notified Ms. Kraemer of the garnishment. Vial noted that all of these
actions were taken in compliance with the Colorado Rules of Civil Procedure.
Vial argued in its motion for fees that Ms. Kraemer filed her FDCPA claim
regarding its actions in the garnishment proceedings even though the Denver County
District Court had previously dismissed a virtually-identical FDCPA claim that
Ms. Kraemer had brought against Fox Hills with respect to their garnishment of her
wages to satisfy her original debt to them. Vial asserted that Ms. Kraemer brought
her FDCPA claim in bad faith because she knew after the earlier ruling that the
FDCPA does not apply to a procedurally proper service of a Writ of Continuing
Garnishment. Vial further explained that after filing her meritless FDCPA claim,
Ms. Kraemer actively litigated the case by filing multiple baseless motions, which
showed that she was using the lawsuit for the purposes of harassment.
The FDCPA provides that “[o]n a finding by the court that an action under this
section was brought in bad faith and for the purpose of harassment, the court may
4
award to the defendant attorney’s fees reasonable in relation to the work expended
and costs.” 15 U.S.C. § 1692k(a)(3). In its initial decision on attorneys’ fees,3 the
district court noted that Ms. Kraemer continued to dispute the debt underlying the
default judgment as well as the validity of the default judgment itself, even though
she had lost these arguments in state courts in Wisconsin and Colorado. Because her
federal case “repeats in a new forum many of the legal arguments rejected in” the
earlier cases in the Wisconsin and Colorado state courts, the court found that
Ms. Kraemer brought the case in bad faith. R., Vol. 3 at 118. The district court also
noted that “[Ms. Kraemer] has continuously and relentlessly refused to cooperate, has
defamed Defendants and their attorneys on the internet, has filed complaints with
various regulatory authorities against Defendants and their attorneys, and has
otherwise harassed Defendants and their attorneys.” Id. Given these circumstances,
the court found that Ms. Kraemer brought this case for the purpose of harassment.
“We review the district court’s finding on the issue of bad faith for clear error
and the court’s resultant decision to grant attorneys’ fees under the FDCPA for abuse
of discretion.” Smith v. Argent Mortg. Co., 331 F. App’x 549, 559 (10th Cir. 2009).
Ms. Kraemer has failed to show that the district court clearly erred in finding that she
brought this action against Vial in bad faith or that the district court abused its
discretion in awarding fees to Vial.
3
In its order granting Vial’s motion for reconsideration and awarding fees, the
district court explained that it was “incorporate[ing] herein the factual findings and
legal standards for awarding and substantiating attorneys’ fees, as set forth in its
previous order.” R., Vol. 3 at 205
5
Ms. Kraemer raises two challenges on appeal to the district court’s award of
fees. First, she asserts that the district court erred in finding that she brought the case
in bad faith because the district court also found that her claim had “some form of
merit.” Aplt. Br. at 3. This assertion was raised in her motion for reconsideration
and is based on the district court’s initial screening of the complaint and its order
appointing pro bono counsel on November 23, 2015. In the November 23 order, the
district court found that Ms. Kraemer had satisfied the four factors for appointment of
counsel, including “the potential merit of the claims or defenses of the unrepresented
party.” R., Vol. 1 at 423. But the district court’s decision at that preliminary stage in
the proceedings to appoint counsel because of the “potential merit of the claims”
does not demonstrate that the district court subsequently erred in finding that
Ms. Kraemer’s FDCPA claim against Vial was filed in bad faith. The district court
issued its appointment order4 the same day that Vial filed its motion to dismiss, so the
court had not yet had an opportunity to consider the history of the case, Vial’s
involvement in it, and the actual merits of Ms. Kraemer’s FDCPA claim.
Second, Ms. Kraemer contends that she offered to enter into arbitration on
November 2, 2015, and this “makes clear that [she] did not engage in unreasonable
and vexatious conduct.” Aplt. Br. at 3. Ms. Kraemer points to no evidence in the
record demonstrating that she made any offer of arbitration, and we see no reference
to such an offer in the pleadings or the district court’s orders. Even assuming,
4
The district court initially selected counsel for Ms. Kraemer, but that attorney
subsequently declined the appointment. Ms. Kraemer ultimately proceeded pro se
throughout the district court proceedings.
6
however, that she did make such an offer it does not negate the fact that she filed a
meritless action and then proceeded to harass Vial with baseless motions and other
inappropriate conduct during the pendency of the litigation.5
We see no clear error in the district court’s findings that Ms. Kraemer filed her
FDCPA claim against Vial in bad faith and for the purpose of harassment. Likewise,
we see no abuse of discretion in the district court’s decision to award attorneys’ fees
and costs to Vial pursuant to 15 U.S.C. § 1692k(a)(3). Accordingly, we affirm the
district court’s judgment.
We deny Ms. Kraemer’s motion to proceed in forma pauperis on appeal. We
remind her that she is obligated to pay her filing fee in full. We also deny Fox Hills
and Vial’s joint motion for damages and costs pursuant to Fed. R. App. P. 38. Our
denial of their Rule 38 motion is without prejudice to Fox Hills and Vial seeking
costs in accordance with Fed. R. App. P. 39.
Entered for the Court
Monroe G. McKay
Circuit Judge
5
The district court noted in its initial order on fees that Ms. Kraemer’s
“conduct has been particularly egregious as directed toward Defendant Vial
Fotheringham.” R., Vol. 3 at 120.
7