Russell v. New Mexico Interstate Stream ( 2015 )


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  •                                                                                     FILED
                                                                            United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                            Tenth Circuit
    
                                 FOR THE TENTH CIRCUIT                           December 22, 2015
                             _________________________________
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
    EMORY RUSSELL; STEVE LYMAN;
    GARY KELLEY; LEE MALLOY;
    LARRY ROBINSON; GARY
    HAMILTON; ART SCHAAP; GUY
    SMITH,
    
          Plaintiffs - Appellants,
                                                                 No. 15-2042
    v.                                               (D.C. No. 1:13-CV-00760-KG-LAM)
                                                                  (D. N.M.)
    THE NEW MEXICO INTERSTATE
    STREAM COMMISSION; THE NEW
    MEXICO ENERGY, MINERALS AND
    NATURAL RESOURCES
    DEPARTMENT, State Parks Division;
    ESTEVAN LOPEZ, Individually and in his
    official capacity as Director of the New
    Mexico Interstate Stream Commission;
    TOMMY MUTZ, Individually, and in his
    official capacity, as Director of the New
    Mexico State Parks Division,
    
          Defendants - Appellees.
                          _________________________________
    
                                          ORDER
                             _________________________________
    
    Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                     _________________________________
    
           This matter is before the court on appellants’ Petition for Rehearing. See
    
    Fed. R. App. P. 40. Upon consideration of the petition and the appellees’ response in
    
    opposition, the petition is granted. The Order & Judgment issued originally on December
    
    2, 2015, is withdrawn, and the amended decision attached to this order shall take its
    place. The Clerk is directed to file the appellees’ response as of the date it was received
    
    and issue the amended Order & Judgment nunc pro tunc to the original filing date.
    
    
                                                  Entered for the Court
    
    
    
                                                  ELISABETH A. SHUMAKER, Clerk
    
    
    
    
                                                 2
                                                                                         FILED
                                                                             United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                             Tenth Circuit
    
                                 FOR THE TENTH CIRCUIT                            December 2, 2015
                             _________________________________
                                                                                 Elisabeth A. Shumaker
                                                                                     Clerk of Court
    EMORY RUSSELL; STEVE LYMAN;
    GARY KELLEY; LEE MALLOY;
    LARRY ROBINSON; GARY
    HAMILTON; ART SCHAAP; GUY
    SMITH,
    
          Plaintiffs - Appellants,
                                                                  No. 15-2042
    v.                                                (D.C. No. 1:13-CV-00760-KG-LAM)
                                                                   (D. N.M.)
    THE NEW MEXICO INTERSTATE
    STREAM COMMISSION; THE NEW
    MEXICO ENERGY, MINERALS AND
    NATURAL RESOURCES
    DEPARTMENT, State Parks Division;
    ESTEVAN LOPEZ, Individually and in his
    official capacity as Director of the New
    Mexico Interstate Stream Commission;
    TOMMY MUTZ, Individually and in his
    official capacity as Director of the New
    Mexico State Parks Division,
    
          Defendants - Appellees.
                          _________________________________
    
                                 ORDER AND JUDGMENT*
                             _________________________________
    
    Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                     _________________________________
    
           *
             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.
           This case involves the termination of dock license agreements on New Mexico’s
    
    Ute Reservoir. Plaintiffs appeal from three orders of the district court, the combined
    
    effect of which was to grant summary judgment in favor of defendants on plaintiffs’ state
    
    and federal claims challenging the terminations. We dismiss this appeal for lack of
    
    jurisdiction.
    
    I. Background
    
           Plaintiffs entered into license agreements with the New Mexico Interstate Stream
    
    Commission that permitted them to maintain private boat docks at Ute Reservoir in Ute
    
    Lake State Park. Ute Reservoir is managed by the Commission and the State Parks
    
    Division of the New Mexico Energy, Minerals, and Natural Resources Department
    
    (“Division”). In May 2013, defendants informed plaintiffs by letter that their license
    
    agreements were being terminated because the Division had determined that the docks
    
    had become a threat to public safety. A drought had yielded extremely low water levels
    
    at the reservoir, “grounding” the docks and causing them structural damage.
    
           Plaintiffs sued, asserting a federal claim for violation of their due process rights
    
    under 42 U.S.C. § 1983 and a state claim for breach of contract. Both sides moved for
    
    summary judgment. In short, the court determined plaintiffs did not have a cognizable
    
    property interest in the license agreements, and it granted summary judgment in
    
    defendants’ favor on the due process claim. It dismissed the contract claim without
    
    prejudice. And it awarded defendants their costs and attorney fees pursuant to the
    
    indemnity provision in the license agreements.
    
    
    
                                                  2
           Plaintiffs filed a Motion to Alter or Amend Judgment, arguing 42 U.S.C. § 1988
    
    prohibited awarding attorney fees incurred in connection with their § 1983 claim based
    
    on the license agreements’ indemnity provision and that the indemnity provision was
    
    unconscionable. The court agreed with the former but not the latter, and amended its
    
    previous award by limiting defendants to costs and attorney fees incurred in connection
    
    with the contract claim only. In accordance with the court’s order, defendants submitted
    
    an application for attorney fees and costs incurred in relation to the contract claim. The
    
    court had not yet ruled on the application when plaintiffs filed their notice of appeal.
    
    After briefing was completed in this appeal, the district court denied defendants’
    
    application, concluding that any award based on the license agreements should be
    
    determined by the state court, where plaintiffs had refiled their contract claim.
    
           Plaintiffs contend the district court erred by concluding (1) they did not have a
    
    property interest in the license agreements and (2) the indemnity provision of license
    
    agreements was neither procedurally nor substantively unconscionable.
    
           Defendants, in turn, argue that we lack jurisdiction to consider plaintiffs’ first
    
    argument because they did not timely appeal the district court’s August 2014 orders
    
    disposing of their due process claim. As explained below, we agree with defendants’
    
    jurisdictional argument and therefore dismiss the appeal as to the due process claim. In
    
    addition, we conclude that the district court’s denial of the application for attorney fees
    
    and costs rendered moot plaintiffs’ contention with respect to the indemnity provision.
    
    
    
    
                                                  3
    II. Jurisdiction over the Due Process Claim
    
           Where the United States is not a party, a civil notice of appeal must be filed within
    
    thirty days of the order or judgment being appealed. Fed. R. App. P. 4(a)(1). “A timely
    
    filed notice of appeal is an absolute prerequisite to our jurisdiction.” Utah Women’s
    
    Clinic, Inc. v. Leavitt, 
    75 F.3d 564
    , 566 (10th Cir. 1995). Here, the orders granting
    
    summary judgment on plaintiffs’ due process claim were entered on August 29, 2014, yet
    
    plaintiffs did not file their notice of appeal until March 4, 2015. Plaintiffs contend that
    
    their Motion to Alter or Amend Judgment, properly construed as a Rule 59(e) motion,
    
    tolled the thirty-day period until the entry of the order disposing the motion. However,
    
    even if we construe plaintiffs’ motion as a Rule 59(e) motion, it is well established that “a
    
    Rule 59(e) motion, challenging only the award of costs and attorney’s fees, does not toll
    
    the time for a merits appeal.” Id. at 567. In an attempt to circumvent this clear
    
    precedent, plaintiffs assert that their motion is distinguishable from a typical challenge to
    
    an award of costs and attorney fees because it addressed the substantive correctness of the
    
    district court’s legal reasoning. But the correctness of plaintiffs’ legal argument does not
    
    change the fact that their motion challenged only costs and attorney fees. See Yost v.
    
    Stout, 
    607 F.3d 1239
    , 1243 (10th Cir. 2010) (concluding that a motion to alter or amend
    
    the judgment challenging only the court’s denial of fees – and not the court’s judgment
    
    on its merits – did not toll the time in which an appeal could be taken on the merits).
    
    Therefore, Yost and Utah Women’s Clinic compel the conclusion that we lack jurisdiction
    
    to reach the merits of plaintiffs’ due process claim in this appeal.
    
    
    
                                                  4
    III. Jurisdiction over the Indemnity Provision Issue
    
           Mootness is jurisdictional. Citizen Center v. Gessler, 
    770 F.3d 900
    , 906 (10th Cir.
    
    2014), cert. denied, 
    135 S. Ct. 1896
     (2015). “A federal court must order dismissal for
    
    mootness if the controversy ends prior to a decision even if a justiciable controversy
    
    existed when the suit began.” Id. (citing Jordan v. Sosa, 
    654 F.3d 1012
    , 1023 (10th Cir.
    
    2011)). Here, the district court ultimately decided not to award attorney fees and costs
    
    based on the indemnity provision, thereby ending this part of the underlying controversy
    
    that plaintiffs sought to have addressed in this appeal. Thus, plaintiffs’ contention that
    
    the indemnity provision is unconscionable has been rendered moot, and we lack
    
    jurisdiction to address it.
    
           The appeal is dismissed.
    
    
                                                  Entered for the Court
    
    
                                                  Timothy M. Tymkovich
                                                  Chief Judge
    
    
    
    
                                                  5
    

Document Info

DocketNumber: 15-2042

Filed Date: 12/22/2015

Precedential Status: Non-Precedential

Modified Date: 12/22/2015