OpenJurist

48 F3d 1232 Norell v. D Quinn

Glen F. NORELL, Plaintiff-Appellant,
v.
Joseph D. QUINN, Luis D. Rovira, George E. Lohr, William H.
Erickson, Howard Kirshbaum, Anthony F. Vollack, Mary J.
Mullarkey, Leonard P. Plank, Donald Smith, Claus J. Hume,
Leslie Lawson, and General Motors Acceptance Corporation,
Defendants-Appellees.

No. 94-1261.
(D.C. No. 93-N-1427)

United States Court of Appeals, Tenth Circuit.

March 2, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, Chief Judge, and McKAY and HENRY, Circuit Judges.

ORDER AND JUDGMENT1

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

The appellant, Mr. Norell, has sued a number of Colorado state judges, claiming that he was denied due process of law in a contractual dispute with the General Motors Acceptance Corporation (GMAC) to which he was party in the Colorado state courts. Mr. Norell has also alleged several grounds for relief against GMAC, some new and some redundant. The district court dismissed the judges from the suit under Fed.R.Civ.P. 12(b)(6) and granted summary judgment in favor of GMAC under Fed.R.Civ.P. 56(c).

3

"The sufficiency of a complaint is a question of law which we review de novo." Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir.), cert. denied, 63 U.S.L.W. 3259 (U.S. Oct.3, 1994). Construing Mr. Norell's allegations in the most favorable light possible, he can prove no set of facts which would entitle him to any relief from the Colorado judges. As the district court held, judges are entitled to absolute immunity when acting in their judicial capacity. Stump v. Sparkman, 435 U.S. 349 (1978). Accordingly, the order of the district court granting the motion to dismiss is affirmed. Because of the frivolous nature of this claim, the district court properly awarded attorney fees to the judicial defendants.

4

We also review the grant of summary judgment de novo. James v. Sears, Roebuck & Co., Inc., 21 F.3d 989, 997-98 (10th Cir.1994). We agree with the district court that no genuine issue of material fact exists as to any of Mr. Norell's claims and that GMAC is entitled to judgment as a matter of law. Furthermore, we find this appeal to be frivolous within the meaning of Fed.R.App.P. 38. Accordingly, we order Mr. Norell to pay GMAC double its costs connected with this appeal. Both sides shall pay their own attorney fees.

5

The order of the district court is AFFIRMED. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470