* This order and judgment is not binding precedent, except under the doctrines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 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 14 1998

PATRICK FISHER

Clerk

 UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MORRIS MYERS,

Plaintiff-Appellant,

v.

THIRD JUDICIAL DISTRICT

COURT; SALT LAKE COUNTY;

STATE OF UTAH; WILLIAM B.

BOHLING, Judge, Third Judicial

District Court,

Defendants,

and

MUTUAL MORTGAGE SERVICES,

Defendant-IntervenorAppellee.

No. 97-4201

(D.C. No. 97-CV-822-C)

(D. Utah)

ORDER AND JUDGMENT *
** Honorable Wesley E. Brown, Senior District Judge, United States District

Court for the District of Kansas, sitting by designation.

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Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District

Judge.

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.

Plaintiff-appellant Morris Myers (Meyers) brought an action in the United

States District Court for the District of Utah alleging violations of his civil rights

pursuant to 42 U.S.C. § 1983. He seeks a “declaration” that a 1997 decree of

foreclosure and judgment entered by the defendant state district judge “impinges

plaintiff’s due process rights under the 14th Amendment.” Plaintiff’s

Affidavit/Opposition to Intervenor’s Motion for Preliminary Injunction at 1. In

connection with that action, he filed a notice of lis pendens on certain property of

Mutual Mortgage Services, Inc. (Mutual), a nonparty to the action. After

discovering the lis pendens while negotiating the sale of the property, Mutual

sought permission to intervene and for a temporary restraining order (TRO) and

preliminary injunction. 
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Following a hearing, the motions to intervene and for a TRO were granted;

the preliminary injunction was entered shortly thereafter. Myers has timely

appealed the grant of the preliminary injunction. We have jurisdiction under

28 U.S.C. § 1292(a)(1), and we affirm. 

The district court may grant a preliminary injunction if the party

seeking it shows: (1) a substantial likelihood of prevailing on the

merits; (2) irreparable harm in the absence of the injunction; (3) proof

that the threatened harm outweighs any damage the injunction may

cause to the party opposing it; and (4) that the injunction, if issued,

will not be adverse to the public interest.

Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Social & Rehabilitation Servs. ,

31 F.3d 1536, 1542-43 (10th Cir. 1994) (citing Autoskill Inc. v. Nat’l Educ.

Support Sys., Inc. , 994 F.2d 1476, 1487 (10th Cir. 1993). 

We review the district court’s grant of a preliminary injunction under an

abuse of discretion standard. See Elam Constr., Inc. v. RTD , 129 F.3d 1343, 1346

(10th Cir. 1997), cert. denied , 118 S. Ct. 1363 (1998) (citing Walmer v. United

States Dep’t of Defense , 52 F.3d 851, 854 (10th Cir. 1995). See also SCFC ILC,

Inc. v. Visa USA, Inc. , 936 F.2d 1096, 1098 (10th Cir. 1991) (“We will not set

aside a preliminary injunction unless the district court abuses its discretion,

commits an error of law, or is clearly erroneous in its preliminary factual findings 

. . . .” (citations omitted)). We have long held that “‘[a]n abuse of discretion

occurs only when the trial court bases its decision on an erroneous conclusion of
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law or where there is no rational basis in the evidence for the ruling.’” Chemical

Weapons Working Group, Inc. v. United States Dep’t of the Army , 111 F.3d 1485,

1489 (10th Cir. 1997) (quotation omitted). 

The district court found that Mutual’s likelihood of success on the merits

was “overwhelming” and that the potential harm if the injunction were not granted

would be “substantial.” The court also determined that Myers would suffer no

harm because there was “no evidence in the record that Myers ever even had an

ownership interest in the subject property.” Intervenor/Appellee’s Br., tab 2 at 5. 

Finally, the court decided that the public interest weighed in favor of Mutual

because Myers “recorded the lis pendens on the property of a corporation not even

named as a party to this action and in a case where the only claims deal with the

procedures employed in the state courts.” Id. Being fully informed of the factual

background of this case, including the Utah state and appellate courts’ rejection of

Myers’ identical “res judicata” arguments, we uphold the district court’s

determination that Mutual satisfied the requirements for obtaining a preliminary

injunction for substantially the reasons stated in its order of November 25, 1997. 

We turn now to Mutual’s motion for damages made pursuant to Fed. R. App.

P. 38. Under Rule 38, a court of appeals is authorized to award “just damages,

including attorney’s fees, and single or double costs if the court determines that an

appeal is frivolous or brought for purposes of delay.” Braley v, Campbell , 832
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F.2d 1504, 1510 (10th Cir 1987) (citations omitted). “An appeal is frivolous when

‘the result is obvious or the appellant’s arguments of error are wholly without

merit.’” Id. (citations omitted). 

Plaintiff has had notice of the motion. See Braley , 832 F.2d at 1515 (noting

requirements of notice). In response, he states that “[a]n appeal is frivolous only if

the facts alleged arise to the level of the irrational or the wholly incredible; or the

claim is based on an indisputably meritless legal theory,” Appellant’s Reply Br. at

14 (citations omitted), and that his appeal, even if not meritorious, is plainly not

frivolous. He in turn asks this court to sanction Mutual an amount of $5,000 for its

“frivolous motion for Rule 38 damages.” Id. 

We note that the Utah Court of Appeals has sanctioned plaintiff for raising

identical arguments, holding that “[t]he present appeal is ‘not grounded in fact, not

warranted by existing law, [and] not based on a good faith argument to extend,

modify, or reverse existing law.’” Mutual Mortgage Servs. Inc. v. Rattlin Gold,

Inc. , No. 970175-CA (Utah Ct. App. May 22, 1997) (quoting Utah R. App.

P. 33(a)). See Intervenor/Appellees’ Br., tab 4 at 2-3. 

Myers has not adequately informed this court how the district court abused

its discretion in granting the injunction, except to argue that the order is “void as

being in violation of Myers’ due process rights under the Fourteenth Amendment,” 

Appellant’s Reply Br. at 13, and to assert that the district court’s reliance on the 
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decision of the Utah Court of Appeals was improper, Appellant’s Reply Br. at 11. 

He also contends that the district court misapprehended the “true basis for the res

judicata claim.” Appellant’s Reply Br., p. 7. He in essence simply repeats

arguments he has been previously warned are without legal merit and continues his

attack on the judgment of the Utah Court of Appeals. See Olson v. Coleman , 997

F.2d 726, 728 (10th Cir. 1993) (finding appeal frivolous for failing to present any

reasonable argument that the district court erred in its disposition); Barnett v.

United States , No. 93-6085, 1993 WL 349417 at **2 (10th Cir. Sept. 14, 1993)

(finding appeal frivolous where appellant made no good faith effort to demonstrate

error in district court’s decision).

This action is in essence a challenge to a state court decision with which

plaintiff disagrees, and over which federal courts lack jurisdiction. See District of

Columbia Court of Appeals v. Feldman , 460 U.S. 462, 486 (1983); Van Sickle v.

Holloway , 791 F.2d 1431, 1436 (10th Cir. 1986). This appeal is both frivolous and

abusive. 

Accordingly, we GRANT Mutual’s motion and award Mutual double costs

and damages against Myers in the amount of $1,000. The order of the district court 
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granting Mutual’s motion for a preliminary injunction is AFFIRMED. The mandate

shall issue forthwith. 

Entered for the Court

Wesley E. Brown

Senior District Judge