* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 16 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JEFFERSON E. LECATES,

Plaintiff-Appellant,

v. RONALD BARKER; RICHARD A. ISAACSON; JEAN ISAACSON,

Defendants-Appellees. No. 00-4026 (D.C. No. 99-CV-220) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Defendants argue that the order dismissing LeCates’ fraud claim without

prejudice was not a final order for purposes of app eal. Where a district court intends to dismiss an entire action rather than mer ely dismissing a complaint, the order of dismissal is final and appealable even if entered without prejudice. See Mobley v. McCormick , 40 F.3d 337, 339-40 (10th Cir. 1994); see also United States v. Wallace & Tiernan Co. , 336 U.S. 793, 794 n.1 (1949); 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.6 at 533-35 (2d ed. 1992). Here, as will be seen, regardless of its intent the district court had no jurisdiction to do anythi ng with the fraud claim otherthan to dismiss it for lack of subject matter jurisdiction pursuant to the RookerFeldman doctrine. We therefore have jurisdiction to consi der this appeal. -2- Plaintiff-appellant Jefferson E. LeCates appeals fr om the district court’s order dismissing his complaint against the defendants. The district court dismissed LeCates’ claims for malicious prosecution , legal malpractice and abuse of process for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). It dismissed without prejudice 1 his claim for fraud on the basis that he failed to comply with the pleading requirements of Fed. R. Civ. P. 9(b). We now determine that the Rooker-Feldman doctrine bars all of LeCates’ claims, with the exc eption of his claims for malpractice and abuse of process. Accor dingly, we vacate the 12(b)(6) dismissal of those claims barred by Rooker-Feldman and remand with instructions to dismiss them for lack of subject matter jurisdic tion. We affirm the dismissal of the claims for malpractice and abuse of process.-3- FACTS This suit arises out of a flurry of litigation betw een the parties in the Utah state courts. Kent S. Walker, LeCates’ client, cla imed to have relied to his detriment on certain promises or fraudulent misrepr esentations made to him by defendants Richard A. Isaacson and Jean Isaacson (the “Isaacsons”) and/or their corporation, Specialized Planning and Insurance, In c. d/b/a Specialized Planning and Insurance Services, Inc. (“SPIS”). The parties filed three suits in rapid succession i n Utah state court. The first was a suit by the Isaacsons against Boyd Corb ett, Walker’s son-in-law, seeking to remove a lien Corbett had placed on thei r home. LeCates sought but was denied leave to intervene on behalf of Walker i n that suit. Walker and the Isaacsons filed the second and third suits against each other to adjudicate Walker’s entitlement to unearned commissions. On September 11, 1993, LeCates filed a motion to wi thdraw from each of these two cases. His motion was granted. Over one year later, in December 1994, the Isaacsons filed the fourth state court ac tion involved here, a complaint against LeCates seeking damages against him for his conduct in the prior litigation under Utah Rule Civ. P. 11 and various o ther theories. When LeCates failed to respond, the state district court entered default judgment against him in the amount of $166,343.86.2 Although the default judgment here was entered by astate district court, it

may still be precluded by Rooker-Feldman , because the doctrine “precludes not only review of adjudications of the state’s highestcourt, but also the decisions of its lower courts.” Jordahl v. Democratic Party of Va. , 122 F.3d 192, 199 (4th Cir. 1997). -4- Although he believed the default judgment had been procured by fraudulent misrepresentations to the Utah court, LeCates did n ot move to set aside the default judgment. Instead, he filed this suit in t he Southern District of Florida, seeking damages from the defendants for violation o f Utah Code Ann. § 78-51-31, and for malicious prosecution, fraud, abuse of proc ess and legal malpractice. LeCates’ complaint charged that the Isaacsons had o btained the default judgment against him by fraud and deceit in collusion with B arker. He also complained that the defendants had attempted to collect the judgmen t, knowing that it was obtained by fraud and deceit, and that they were ha rassing him through their collection activities.

DISCUSSION The Rooker-Feldman doctrine provides that federal courts, other than the United States Supreme Court, lack jurisdiction to a djudicate claims seeking review of state court judgments. See District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co. , 263 U.S. 413, 415-16 (1923). 2 Because it is a jurisdictional doctrine, we must consider whether-5-

Rooker-Feldman bars any of LeCates’ claims before addressing any of the arguments he raises on the merits. See Long v. Shorebank Dev. Corp. , 182 F.3d 548, 554-55 (7th Cir. 1999).

A. Fraud claim In his fraud claim, LeCates does not request that h is default in Utah state court be set aside or that the judgment against himbe overturned. Instead, he seeks damages from the defendants for their conductin procuring the allegedly fraudulent judgment against him. Rooker-Feldman bars not only cases seeking direct view of state court judgments, however; it a lso bars cases that are “inextricably intertwined” with a prior state court judgment. See Feldman , 460 U.S. at 482 n.16. If adjudication of a claim in federal court would r equire the court to determine that a state court judgment was erroneous ly entered or was void, the claim is inextricably intertwined with the merits o f the state court judgment. See, e.g. , Jordahl v. Democratic Party of Va. , 122 F.3d 192, 202 (4th Cir. 1997). That is the case here. In order to grant LeCates r elief on his fraud claim, it would be necessary to determine that the Utah state courtdefault judgment was fraudulently obtained and therefore void. We there fore conclude that the fraud claim is barred by the Rooker-Feldman doctrine.-6- B. Deceit and collusion Section 78-51-31 of the Utah Code provides that “[a ]n attorney and counselor who is guilty of deceit or collusion, or who consents thereto, with intent to deceive a court or judge or a party to an action or proceeding is liable to be disbarred, and shall forfeit to the injured party treble damages to be recovered in a civil action.” LeCates has included a claim for treble damages un der this statute in his complaint. Application of Rooker-Feldman to this claim is complicated by the fact that the disciplinary provisions of the statute may appl y even if the court has not been deceived. See In re Norton , 146 P.2d 899, 900-01 (Utah 1944). In other words , it would be possible for a court to determine that an attorney violated this section without calling the resulting state court judgment into question.
Norton , however, concerned the disciplinary remedy, not the damages remedy, provided in the statute. LeCates seeks tre ble damages based on the amount of the judgment entered against him. In ord er to prove his treble damages claim, he will have to prove that the judgment was entered by fraudulent means (deceit and collusion), thus calling into question the validity of the default judgment. The only support for damages would be th e default judgment, and the only support for a finding of liability would be ev ents that were or should have been contested in the Utah state court proceedings which resulted in the default-7-

judgment. LeCates’ argument that he does not seek to set aside the judgment itself, only damages for its wrongful entry, is unavailing.

C. Malpractice claim LeCates’ complaint includes a claim against Ronald Barker, opposing counsel in the Utah state court actions, for legal malpractice. Malpractice claims, when brought against an attorney who was not a party to the state court proceeding, may lie outside the scope of Rooker-Feldman . See Kamilewicz v. Bank of Boston Corp. , 100 F.3d 1348, 1351-52 (7th Cir. 1996) (Easterbro ok, J., dissenting from the denial of rehearing en banc). LeCates argues that his claim can be construed to attack the actions of attorney Barker in obtaining the default judgment, not the default judgment itself. To the extent that it can be construed to avoid Rooker-Feldman , however, the claim fails because Utah law does not recognize a cause of action for legal malpractice a gainst opposing counsel. The elements of a cause of action for legal malprac tice in Utah include “an attorney-client relationship” and “duty of the atto rney to the client arising from their relationship.” Glencore, Ltd. v. Ince , 972 P.2d 376, 379 (Utah 1998). While Utah has acknowledged the modern trend toward relax ing the privity requirement and recognizing a cause of action by nonparties aff ected by a lawyer’s failure to exercise reasonable care, its cases suggest that su ch a third party cause of action arises only where there is at least a nonadversaria l relationship between the-8-

attorney and the third party. See Oxendine v. Overturf , 973 P.2d 417, 421 (Utah 1999) (requiring that third party be an intended be neficiary of the attorney-client relationship); Atkinson v. IHC Hosp., Inc. , 798 P.2d 733,736 (Utah 1990) (stating that any duty attorney owes to third party is deriv ative of his duty to client, and not owed to adversary in litigation). LeCates has pled no such relationship here; his legal malpractice claim therefore fails as a matter of law.

D. Malicious prosecution/abuse of process LeCates concedes that his malicious prosecution cla im may be barred by Rooker-Feldman . This claim cannot be determined without an outco me in state court favorable to LeCates. Any attempt by a feder al court to anticipate such an outcome would require the court to determine that the state court judgment was erroneously entered or void, thus running afoul of Rooker-Feldman

. The abuse of process claim is more difficult, becau se it is ambiguously worded. To the extent LeCates raises an abuse of p rocess claim targeting the fraudulent means used to obtain the default judgment, his allegations call the default judgment into question and therefore violate Rooker-Feldman

. At times, however, LeCates’ complaint appears to as sert that Barker’s methods in collecting the default judgment constituted an abuse of proce ss. Such a claim might not run afoul of Rooker-Feldman , because it targets the collection process rather than the underlying judgment. Even if this is so, however, LeCates-9-

has failed to satisfy the rigorous standard applicable to an abuse of process claim under Utah law: that the process was used against h im primarily to accomplish a purpose for which it was not designed. See Gilbert v. Ince , 981 P.2d 841, 845 (Utah 1999). Therefore, the 12(b)(6) dismissal of this claim was appropriate. We AFFIRM the dismissal of LeCates’ claims for malp ractice and abuse of process. We VACATE the dismissal of his claims forfraud, deceit and collusion pursuant to Utah Code § 78-51-31, legal malpractice , and malicious prosecution, and REMAND with instructions to dismiss these claim s for lack of subject matter jurisdiction.

Entered for the Court

Deanell Reece Tacha Circuit Judge