United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1560

___________________________

David M. Meyer and Nancy R. Meyer Trust UTA Dated October 13, 2006

lllllllllllllllllllll Plaintiff - Appellant

v.

U.S. Bank National Association

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the District of Nebraska - Lincoln

____________

 Submitted: February 12, 2015

 Filed: July 6, 2015

____________

Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.

____________

LOKEN, Circuit Judge.

In June 2003, David and Nancy Meyer signed a revolving credit note and

revolving credit agreement and later signed a series of term notes and term loan

agreements to obtain loans from U.S. Bank to finance their swine production

business. In October 2006, the Meyers transferred all their business assets to a

revocable trust, The David M. Meyer and Nancy R. Meyer Trust (the Trust), naming

themselves as Grantors and Trustees. The revolving credit loan went into default on
July 1, 2008. U.S. Bank agreed not to exercise its default rights. The lending

relationship continued until the Meyers withheld proceeds from the sale of collateral

(hogs); U.S. Bank commenced a replevin action; and the Meyers filed for Chapter 11

bankruptcy protection in August 2010. 

In September 2011, the Meyers, individually, sued U.S. Bank in the District of

Nebraska, alleging breach of contract, fraud, violations of the Nebraska Uniform

Deceptive Trade Practices Act, and unjust enrichment. The district court granted

summary judgment dismissing all claims, and we affirmed. Meyer v. U.S. Bank Nat’l

Ass’n, 715 F.3d 703 (8th Cir. 2013) (Meyer I). The Trust then commenced this action

in state court, alleging that U.S. Bank tortiously interfered with the Trust’s

contractual relations with a feed supplier. U.S. Bank removed the action, promptly

filed a motion for summary judgment, and later sought Rule 11 sanctions. The

district court granted summary judgment and imposed a $5,000 sanction against the

1

Trust and its attorneys. The Trust appealed. U.S. Bank moved for additional

sanctions under Rule 38 of the Federal Rules of Appellate Procedure, arguing the

appeal is frivolous. We affirm the district court’s rulings. We conclude the appeal

was not frivolous but was frivolously argued. We deny an award of attorneys’ fees

but grant double costs as a Rule 38 sanction.

I. The Merits

In Meyer I, the Meyers’ claims centered on their allegation that U.S. Bank

forged their signatures on a document acknowledging a change in the loan agreement

terms, which made them appear less creditworthy, forcing the loan into default. To

obtain credit extensions, the Meyers were then coerced into signing forbearance

agreementsreleasing U.S. Bank from liability for the forgery. Ultimately, U.S. Bank

The Honorable Laurie Smith Camp, Chief Judge, United States District Court

1

for the District of Nebraska.

-2-
refused to extend the maturity date again, forcing the Meyers into bankruptcy. Their

damage claims included “a loss of performance by the Meyer herd as a result of feed

deprivation used by U.S. Bank in further leverage against the Meyers to comply with

all demands made by U.S. Bank.” We affirmed the grant of summary judgment

dismissing these claims because, when the Meyers failed to pay the amount due on

their loan when it matured, U.S. Bank “was under no obligation to extend the

maturity date yet again. Whatever the accuracy of [U.S. Bank’s creditworthiness

calculation], the Meyers had failed to comply with the revolving credit agreement,

and the Bank was entitled to enforce its rights.” 715 F.3d at 705. 

In this action, the Trust alleged that it is “the independent entity solely

responsible for running” the Meyers’ swine business. When the loan matured by

reason ofthe forged debt-acknowledgment, U.S.Bank used “feed deprivation tactics”

-- refusing to wire money to the Trust’s feed supplier -- to force the Meyers to sign

forbearance agreements, conduct that tortiously interfered with the Trust’s

relationship with the feed supplier. U.S. Bank moved for summary judgment, arguing

the Trust’s claims were barred by judicial estoppel and res judicata and submitting

extensive documentation fromMeyer I and the Meyers’ bankruptcy proceedings. The

district court granted summary judgment, concluding that the determinations in

Meyer I “that the Meyers defaulted on their revolving credit agreement with the

Bank; the Bank was under no obligation to forbear; and the Bank was free to enforce

its rights . . . are res judicata” in this action. Consequently, the complaint “fails to

state a claim [of tortious interference] upon which relief can be granted, because it

describes no ‘unjustified intentional act of interference’ on the part of the Bank.”2

Under Nebraska law, the elements of a claim for tortious interference with a

2

business relationship or expectancy include proof of “an unjustified intentional act

of interference on the part of the interferer.” Steinhausen v. HomeServs. of Neb.,

Inc., 857 N.W.2d 816, 831 (Neb. 2015).

-3-
On appeal, the Trust does not challenge the district court’s decision on the

merits. Rather, seizing on the court’s statement that the complaint failed to state a 

claim upon which relief can be granted, the Trust argues the court erred procedurally

by going beyond the Trust’s well-pleaded claim of tortious interference in granting

U.S. Bank a Rule 12(b)(6) dismissal. Though the procedural principle is sound, the

contention in this case is not merely without merit, it is frivolous. U.S. Bank

explicitly moved for summary judgment and submitted supporting documents that the

court considered without objection. The district court’s Memorandum and Order

stated that it was granting summary judgment and identified the documents from

Meyer I and the Meyers’ bankruptcy proceedings on which the court was relying. 

When the Trust moved for reconsideration, arguing the court had failed to construe

the complaint liberally and accept all allegations as true, the district court denied the

motion in a second Memorandum and Order, explaining that its “grant of summary

judgment in favor of the Bank was governed by Fed. R. Civ. P. 56 because the Court

considered matters outside the pleadings, and all parties were given an opportunity

to present material pertinent to the motion.” There was no procedural error. The

court’s grant of summary judgment is affirmed.

II. The Rule 11 Sanction

The district court granted U.S. Bank’s motion for sanctions, concluding the

Trust’s tortious interference claim violated Rule 11(b)(2) and (3) of the Federal

Rules of Civil Procedure. The claim was frivolous and vexatious because, while

brought in the name of the Trust, under Nebraska law “a trust is not a legal

personality” and the trustees-- here, the Meyers, the unsuccessful plaintiffs in Meyer

I -- were “the proper person[s] to sue or be sued on behalf of such trust.” Back Acres

Pure Trust v. Fahnlander, 443 N.W.2d 604, 605 (Neb. 1989). The court imposed a

$5,000 sanction against the Trust and its attorneys, jointly and severally. 

-4-
On appeal, the Trust argues that its claim was not frivolous. Because trusts

have been allowed to appear asseparate entitiesin other Nebraska and Eighth Circuit

cases, the claim was based upon a reasonable extension of existing law and was not

“so baseless as to warrant Rule 11 sanctions.” Exec. Air Taxi Corp. v. City of

Bismarck, 518 F.3d 562, 571 (8th Cir. 2008). In addition, the Trust asserts, U.S.

Bank waived any objection to the claim being brought in the name of the Trust by

removing the action and seeking a disposition on the merits. U.S. Bank replies that

a sanction was properly imposed because the two actions arose out of the same

nucleus of operative facts, the Meyers pursued the claims individually in Meyer I, the

Meyers as trustees and grantors of the revocable Trust controlled the Trust’s ability

to assert its claim in either action, and therefore the Trust and its attorneys “had to

know” that this action was barred by Meyer I.

“We review the district court’s imposition ofsanctionsfor abuse of discretion,”

giving “substantial deference to the district court’s determination as to whether

sanctions are warranted because of its familiarity with the case and counsel

involved.” Willhite v. Collins, 459 F.3d 866, 869 (8th Cir. 2006); see Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 405 (1990). We have repeatedly approved

sanctions in cases where plaintiffs attempted to evade the clear preclusive effect of

earlier judgments. See Willhite, 459 F.3d at 869; Prof’l Mgmt. Assocs., Inc. v.

KPMG LLP, 345 F.3d 1030, 1032-33 (8th Cir. 2003); Landscape Props., Inc. v.

Whisenhunt, 127 F.3d 678, 682-84 (8th Cir. 1997); King v. Hoover Group, Inc., 958

F.2d 219, 223 (8th Cir. 1992). In this case, the Meyers repackaged their prior

unsuccessful lawsuit under a different cause of action, using their revocable Trust as

plaintiff and filing the action in state court. The contention that the Trust was the

owner and operator of the Meyers’ swine production business was contradicted by

filings in Meyer I and in the Meyers’ bankruptcy proceeding. Other evidence in the

record confirmed that they operated the business and dealt personally with its lender

and vendors. The circumstances, though unusual, are not unlike those in Kountze ex

rel. Hitchcock Found. v. Gaines, 536 F.3d 813, 819 (8th Cir. 2008), where we

-5-
affirmed the imposition ofsanctions when a son asserted virtually identical claims as

those unsuccessfully asserted by his father, a co-trustee. We conclude that the district

court did not abuse its discretion in imposing a monetary sanction that was

significantly less than the attorneys’ fees and expenses incurred by U.S. Bank in

defending the suit. See Fed. R. Civ. P. 11(c)(4).

In its Reply Brief, the Trust argued for the first time that the district court was

without power to impose a Rule 11 sanction for the filing of a frivolous complaint in

state court. Consistent with their pattern of misrepresenting facts and law to this

court, the Trust’s attorneys failed to disclose that all the cases they cited in support

of this contention predated a 1993 amendment to Rule 11(b) clarifying thatsanctions

may be imposed for “later advocating” a state court complaint after the case is

removed. See Buster v. Greisen, 104 F.3d 1186, 1190 n.4 (9th Cir. 1997). By saving

this argument until their Reply Brief, counsel gave U.S. Bank no opportunity to help

the court by pointing out the crucial Rule 11 amendment. Because counsel’s

deception is relevant to the question whether to impose a Rule 38 sanction, we reject

the untimely contention as meritless, rather than declining to consider it. 

IV. Appellate Sanctions

On appeal, U.S. Bank moved for imposition of sanctions, seeking an award of

its full attorneys’ fees on appeal and double costs. U.S. Bank argued that the

“purported issues asserted by [the Trust] are based upon outright misstatements ofthe

district court’s orders.” The Trust’s attorneys responded, arguing the appeal raised

“serious and substantial issues and questions about whether the District Court had

erred in determining the invalidity of [the Trust’s] state court claim of tortious

interference.” Rule 38 of the Federal Rules of Appellate Procedure provides that a

court of appeals may “award just damages and single or double costs to the appellee”

if it determines an appeal is frivolous. 

-6-
The Motion for Sanctions is flawed for an obvious reason not addressed by

either party -- the Trust’s appeal of the district court’s sanctions order, though

unsuccessful, was not frivolous. Discretionary orders imposing sanctions on a party

or its attorneys are often appealed and are given careful review by this court. For

example, in Kountze, we observed that “Rule 11 motions for sanctions involve factintensive, close calls.” 536 F.3d at 819 (quotation omitted). Kountze was the only

case U.S. Bank cited in its appeal brief in which we upheld a relitigation sanction

imposed upon a different party. In the district court, U.S. Bank filed a motion for

sanctions, which the court granted. By asking the district court to impose a

discretionary remedy beyond dismissal of the Trust’s claim, U.S. Bank ensured it

would need to incur attorneys’ fees defending an appeal. The motion for a Rule 38

award of fees is denied.

On the other hand, U.S. Bank’s Motion for Sanctions accurately described the

Trust’s appellate attack on the district court’s grant ofsummary judgment dismissing

the claim of tortious interference. As we have noted, the Trust did not argue the

merits on appeal. Instead, it argued the district court procedurally erred in granting

a Rule 12(b)(6) dismissal. U.S. Bank correctly responded that the district court stated

clearly in its initial order that it was granting summary judgment, and then reaffirmed

in its denial of reconsideration that the “Court’s grant of summary judgment in favor

of the Bank was governed by Fed. R. Civ. P. 56.” Nonetheless, in its Reply Brief and

at oral argument, the Trust persisted in frivolously misrepresenting the district court’s

rulings. In addition, a new contention in the Trust’s Reply Brief flagrantly

misrepresented governing law. Thus, though not “frivolous as filed,” the Trust’s

appeal falls within the distressing category of “frivolous as argued.” “Frivolousness 3

is determined . . . not in the abstract but in relation to the arguments actually made by

“An appeal is . . . ‘frivolous as argued’ when an appellant has not dealt fairly 3

with the court, has significantly misrepresented the law or facts, or has abused the

judicial process by repeatedly litigating the same issue in the same court.” Abbs v.

Principi, 237 F.3d 1342, 1345 (Fed. Cir. 2001) (quotation omitted). 

-7-
the appellant.” Anderson v. Steers, Sullivan, McNamar & Rogers, 998 F.2d 495, 496

(7th Cir. 1993).

Rule 38 sanctions may be imposed for appeals that are “frivolous as argued.”

The difficult question is whether to impose a sanction in this case. U.S. Bank does

not deserve even a partial grant of its attorneys’ fees on appeal; most of its brief

unnecessarily reargued the merits of the district court’s ruling when the Trust raised

only a frivolous procedural issue on appeal. However, an appeal that is frivolous as

argued “imposes costs not only upon the party forced to defend it, but also upon the

public whose taxes supporting this court and its staff are wasted on frivolous

appeals.” Abbs, 237 F.3d at 1346 (quotation omitted). In these circumstances, we

conclude that an award of double costs on appeal is an appropriate Rule 38 sanction. 

The judgment of the district court is affirmed, with double costs awarded to

appellee U.S. Bank.

______________________________

-8-