UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

B. WILLIS, C.P.A., INC., Plaintiff,

v. PUBLIC SERVICE COMPANY OF OKLAHOMA, Defendant-Appellee, and BNSF RAILWAY CORPORATION; UNION PACIFIC RAILROAD COMPANY, Defendants.

----------------- ------------- WILLIAM THOMAS DICKSON, Attorney-Appellant. No. 12-5062 (D.C. No. 4:04-CV-00163-TCK-TLW) (N.D. Okla.)

ORDER AND JUDGMENT *

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 19, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.
William Thomas Dickson is the lawyer w ho represented B. W illis, C.P.A., Inc. (Willis) in various state and federal su its against Public Service Company of Oklahoma (PSO) and other entities concer ning PSO’s condemnation of an easement on Willis’s property to construct a rail spur to deliver coal to a power plant. Mr. Dickson appeals from an order of the district court granti ng PSO’s request for sanctions under 28 U.S.C. § 192 7. We have jurisdiction u nder 28 U.S.C. § 1921, and we affirm.
I. The district court’s sanction order came at the conclusion of more than two decades of litigation between Willis and various entities, including PSO, in the state and federal courts. The num erous suits, in each of which Mr. Dickson represented Willis, are well-known to the par ties and outlined in detail in B. Willis, C.P.A., Inc., v. BNSF Ry. Corp ., 531 F.3d 1282 (10th Cir. 2008) a nd the magistrate judge’s report and recommendation issued on March 14, 2012. The suit underlying this appeal “stems from two consolidated cases Willis commenced after failing to obtain any relief in his previous three federal actions.” Id . at 1293. In the first case, “Willis sued BNSF . . . as serting state law tort and contract claims . . . on [ its] continued belief that BN SF was wrongfully possessing the easement across [its] property.” Id . BNSF removed the case to federal court.- 3 - The second suit was filed by Willis in federa l court, “this time asserting a claim under the Interstate Commerc e Commission Termination Act . . . against BNSF [and others including] PSO, and claims under 42 U. S.C. § 1983, as well as state law tort and property claims, ag ainst PSO and BNSF.” Id . at 1294 (footnote omitted). Again, Willis alleged that the “continued use of the easement across [its] property was wrongful.” Id

. While the appeal was pending in Willis , the portion of the state-court condemnation case concerning PSO’s necessity of condemning the easement and its use of the same during the lit igation was finally resolved. As we explained, “[t]hose state proceedings finally de termined not only that PSO had established a public necessity justifying its condemnation of an easement across Willis’ property, but also that PSO’s and BNSF’s possession of th e easement during the state condemnation proceedings was lawful.” Id . at 1294-95 (footnote omitted) . We thus concluded that because the state courts had finally determin ed that PSO established a public use that necessitated the condemnation of the ea sement “and that PSO’s and BNSF’s possession and use of the easement duri ng the state condemnation proceedings was lawful[;] [t]he state courts’ decisions finally resolving these two issues preclude Willis from pursuing the clai ms it is asserting in this federal action, with two exceptions.” Id . at 1297. “The[] two exceptions are 1) Willis’ due process/equal protection claim, to the extent that claim is base d upon a theory other than Willis rearguing that PSO- 4 - unlawfully possessed and used the eas ement during the state condemnation proceeding, and 2) Willis’ trespass claim alleging PSO removed limestone and coal from below the surface easement.” Id . at 1298. However, because the “state proceeding remain[ed] ongoing as to the is sue of whether the compensation awarded Willis is adequate,” id . at 1297, we agreed with the dist rict court that the claims were not ripe and should be di smissed without prejudice, id . at 1305. See Wilkinson v. Pitkin Cnty. Bd. Of Cnty. Comm’rs , 142 F.3d 1319, 1323 (10th Cir. 1998) (per curiam) (“[W]hether an unconstitutionally improper taking occurred cannot be determined until both the taking and th e compensation have been legally evaluated.”). Following our remand but before the di strict court had an opportunity to dismiss the claims without prejudice, Willis voluntarily dismissed its pending state-court appeal, which “r ipened” the claims. But instead of litigating the two narrow claims that this cour t said might be plausible, Mr. Dickson asserted claims and arguments that went far beyond th e narrow confines of our opinion in Willis

. Mr. Dickson maintained this course for more than two y ears until the district court eventually denied Willis’s motion for partial summary judgment and granted PSO’s motion for summary judgment. 1

1 Willis appealed the distri ct court’s judgment to this court. The appeal was dismissed for lack of prosecution.- 5 - In the meantime, PSO moved for attorn ey fees against Willis and sanctions against Mr. Dickson. PSO a nd Willis eventually filed a joint stipulation in which each agreed to be responsible for their own fees and costs. The district court entered an order denying PSO’s moti on as moot based on its se ttlement with Willis, but granted PSO ten days to file a separate motion for sancti ons against Mr. Dickson. Because briefing was essentia lly complete and the magist rate judge to whom the matter had been referred had already set a hearing, PSO asked the court to reconsider the requirement to file a new motion. The court treated the motion for reconsideration as PSO having re-filed its mo tion for sanctions agai nst Mr. Dickson. The magistrate judge issued a 24- page report and recommendation on March 14, 2012, in which it granted PSO’s motion and imposed sanctions against Mr. Dickson. The district court overrule d Mr. Dickson’s objections and entered an order on March 30, in which it adopte d the magistrate judge’s report and recommendation. This appeal followed.
II. “Any attorney . . . who so multiplies th e proceedings in any case unreasonably and vexatiously may be requi red by the court to satisfy personally the excess costs, expenses, and attorneys’ fe es reasonably incurred becau se of such conduct.” 28 U.S.C. § 1927. “[Section] 1927 does not require a finding of bad faith.” Hamilton v. Boise Cascade Express , 519 F.3d 1197, 1202 (10th Cir. 2008). When dealing with a lawyer, the courts “are enti tled to demand that an attorney exhibit- 6 - some judgment. To excuse objectively un reasonable conduct by an attorney would be to state that one who acts with an empt y head and a pure heart is not responsible for the consequences.” Id . (internal quotation marks om itted). Therefore, “any conduct that, viewed objectively, manifests e ither intentional or reckless disregard of the attorney’s dutie s to the court, is sanctionable.” Id . (internal quotation marks omitted). “We review an award of sanctions under § 1927 only for abuse of discretion.” Id . But “[w]here the exerci se of that discretion depe nded on the resolution of a purely legal issue, [] we approach such a question de novo .” Id

. III. A. Jurisdiction Under a heading titled “The District Cour t Lacked Jurisdiction To Consider a Motion For Sanctions,” Aplt. Opening Br . at 17, Mr. Dickson makes several arguments. First, he argues that “S ection 1927 targets the vexatious and unreasonable multiplication of proceedings. Sanctions under this section are levied to compensate the victims of dilatory practices.” Id . According to Mr. Dickson, he was not dilatory and not subject to sanctions. While it is correct that reach of § 1927 includes dilatory practices, see Hamilton , 519 F.3d at 1206 (recognizing that purpose of a 1980 amendment to the statute was to deter unnecessary delays in litigation), Mr. Dickson has not cited any authority th at sanctions can be imposed only for- 7 - dilatory conduct. To the contrary, we have authorized sanctions for conduct other than delay. See, e.g., Braley v. Campbell , 832 F.2d 1504 (10th Cir. 1987). Next Mr. Dickson argues “that § 19 27 liability [cannot] be imposed for initiating meritless litigati on [] because § 1927 covers only the multiplication of ‘proceedings in any case[.]’” Aplt. Openi ng Br. at 17-18 (quoting § 1927). We need not address this argument because the distri ct court did not awar d sanctions against Mr. Dickson for filing the complaint. Last, Mr. Dickson complains that PSO’s motion for sanctions was untimely. This contention is built on the false cons truct that PSO’s motion was filed “eight months after the Court’s final judgment.” Id . at 20. Although we have held “that § 1927 sanctions are not un timely if sought or imposed after final judgment,” Steinert v. Winn Group, Inc ., 440 F.3d 1214, 1223 (10th Cir. 2006), we have also recognized that “resort to § 1927 should not be unnecessarily or unreasonably delayed,” id

. We need not decide whether an ei ght-month delay would be unreasonable, because there was no such delay. PSO file d its motion for sanctions fourteen days after the district court entered dismissed th e case on the merits. As explained above, PSO and Willis eventually fi led a joint stipulation in which each agreed to be responsible for their own fees and costs and the district cour t entered an order denying PSO’s previously file d motion as moot, but grante d PSO ten days to file a separate motion for sanctions against Mr . Dickson. PSO asked the court to reconsider its order becau se briefing was essentially complete and the magistrate- 8 - judge had already set a heari ng. The court granted PSO’s motion for reconsideration and treated PSO’s original motion for sancti ons and the responses and replies as the operative documents. There was no unreasonable delay.
B. Due Process Mr. Dickson appears to suggest that af ter the district court held that PSO would not be required to file a new moti on for sanctions, he was deprived of an opportunity to respond. He goes so far as to claim that he was required “to defend against this unseen, non[-]ex istent motion in only seven days.” Aplt. Opening Br. at 23. This assertion is belied by the r ecord. Mr. Dickson filed multiple responses over several months to PSO’s motion for sa nctions, not to mention his participation in several hearings. As su ch, the argument lacks merit. Citing the two-day period between when he filed his objections to the magistrate judge’s report a nd recommendation and when th e district court adopted the recommendation, Mr. Dickson argues that because the court was in a jury trial, “[t]here is simply no way the statutorily and constitutionally required de novo review [by the district court] could ever have been conducted.” Id . at 21. We disagree. The court’s order states: “Pursuant to F ED

. R. C IV

. P. 72(b), the Court has reviewed the record de novo . After thorough consid eration of [the repor t and recommendation] and [Mr.] Dickson’s Objections , the Court finds no reason eith er in law or in fact to depart from the recommendati on of [the Magistrate Judge ].” Aplt. App. at 54. “[A] brief order expressly st ating the court conducted de nov o review is sufficient.”- 9 - Northington v. Marin , 102 F.3d 1564, 1570 (10th Cir. 1996). Th e order meets this

test. C. The Sanctionable Conduct This court held in Willis that all claims against BN SF were precluded and that as to PSO, all of Willis’s claims were precluded w ith the possible exception of “1) Willis’ state law trespass claim to the extent it al leges that PSO wrongfully removed coal and limestone from beneath the surface easement; and 2) Willis’ due process/equal protection claim . . . to the ex tent that claim is based upon allegations other than that PSO wrongfully possess ed and used the eas ement across Willis’ property during the state condemnation proceedings.” 531 F.3d at 1306. But because the state court c ondemnation proceedings were not final, we affirmed the state court’s decision to dism iss the claims without prej udice because they were not ripe. However, before the claims could be dismissed, Willis voluntarily dismissed the state court proceedings. Mr. Dickson’s expansion of the litigati on beyond what the magistrate judge concluded were the “very we ll defined boundaries placed on any further litigation,” Aplt. App. at 39, justifies the award. As the magistrate judge explained, “it is [Mr.] Dickson’s conduct in this case, includi ng his failure to heed the Tenth Circuit’s limitations on remand, which merits the Section 1927 sanctions[.]” Id . Because Mr. Dickson’s conduct was objectively unreasona ble, we hold that the district court did not abuse its discretion in imposing sanctions.- 10 - 1. Request to Add Parties The magistrate judge recommended sanc tioning Mr. Dickson for seeking leave to add PSO’s parent company and its litiga tion counsel as additi onal parties. This request was made several months after this court’s remand in Willis and more than a month after Willis’s voluntary dismissal of the state cour t condemnation appeal. The magistrate judge concluded that there was no good faith basis fo r [Mr.] Dickson’s request to add PSO’s parent company and its litiga tion counsel. In fact, the request was so devoid of support that its only purpose could have been to further multiply the proceed ings and lengthen the parties’ dispute in the hope of gaining some tactical advantage; it was unreasonable and vexatious. Id . at 41. Mr. Dickson argues that the magistrate judge erroneously deni ed his request to add these parties and therefore his reque st to do so cannot form the basis for sanctions. As to litigati on counsel, Mr. Dickson assert s that his claims did not become ripe until September 2008 when the state condemnation appeal was dismissed “and only then also became ripe against the agen ts of the corporation who committed the acts giving ri se to the claims and PSO’s corporate parent that supervised and directed those agents.” Aplt. Opening Br. at 26. As to PSO’s parent company, Mr. Dickson argued in the district court that it became the real party in interest in 2000 when it purch ased PSO, and that “PSO is now just a facade, a front, a shell.” Aplt. App. at 78. On appeal, he argues that “there was nothing improper about seeking to amend to add the real party in interest.” Aplt. Opening Br. at 26.- 11 - Under the firm-waiver rule, a party’s fa ilure to timely object to the proposed findings and recommendations of the magistrate judge “w aives appellate review of both factual and le gal questions.” Casanova v. Ulibarri , 595 F.3d 1120, 1123 (10th Cir. 2010) (internal quotation marks omitted). As such, it is too late for Mr. Dickson to argue the mer its of the decision to deny hi s request to add additional parties, because he did not object to the magistrate judge’s report and recommendation to deny the request. The findings and conclusions in the recommendation to deny the request to add additional parties (quoted by the magistrate judge in the recommendation for sanctions) establish beyond cavil the objectively unreas onable and vexatious nature of Mr. Dickson’s conduct: Nothing in the Tenth Circuit’s decisi on directs this Court to allow Willis to pursue any claims other than the two specifically [noted in Willis ]. There is no mention of permitting additional parties or changing the nature of the claims. And neither ha s Willis explained the necessity of adding the additional parties. . . . While it is true that this Court and the Tenth Circuit held that Willis’ § 1983 claim was unripe until the state condemnation proceedings were final, such does not mean that Willis, in making the proceeding final by di smissing his appeal of the just compensation component of the conde mnation suit, can now bring the claim against parties who have neve r before been named in the long Jarndycian history of this dispute. Aplt. App. at 40. As such, the magistrate judge’s conclusion th at “that there was no good faith basis for [Mr.] Dickson’s request to add PSO’s parent company and its litigation counsel,” id . at 41, was not an abuse of discretion.- 12 - 2. Request for Injunction Mr. Dickson’s request for a preliminary injunction was made more than five months following this court’s decision in Willis and more than three months after Willis voluntarily dismissed the state cour t condemnation appeal. The request for injunctive relief was made ag ainst BNSF in an attempt to prevent it from trespassing on Willis’s property. Setting aside the fact th at this court had already ruled that any claims against BNSF to use th e easement were precluded, see Willis , 531 F.3d at 1302, the magistrate judge who recomm ended sanctions and who also conducted the hearing on the motion for a preliminary in junction, recalled that Mr. Dickson’s purpose in seeking an injunction ag ainst BNSF was twofold: (1) an injunction against BNSF would prev ent PSO from using the easement, since BNSF was the only railroad that had access to PSO’s rail spur; and (2) if it appeared to [Mr.] Dick son that his request for an injunction was going to be denied, he could file yet another motion for preliminary injunction as to PSO[.] Aplt. App. at 42. As a resu lt, the magistrate judge concl uded that “[b]oth the request for injunctive relief and thes e goals were in direct contra diction to the Tenth Circuit’s remand. . . . The Tenth Circuit had clearl y precluded any effort by Willis to prevent PSO or BNSF from using the easement,” id ., and that Mr. Dickson’s “action was unreasonable and vexatious and mu ltiplied these proceedings,” id . at 43. On appeal, Mr. Dickson does not offer a ny legal argument, but instead says he is confused as to how th e magistrate judge reached the conclusions: “Why these [purposes] were clear to the U. S. Magistrate is unclear b ecause neither is true. The parameters of the injunction sought were na rrow so as to apply only to that portion of- 13 - the track across Willis’ property that was located off of PSO’s surface easement.” Aplt. Opening Br. at 28. However, there is no evidence that the railroad spur was located outside the easement. More to the point, Willis’s trespass claim was limited to a claim “that PSO wrongfully removed coal and limestone from beneath the surface easement.” 531 F.3d at 1306 (emphasis added). Mr. Dickson’s bid to obtain a preliminary injunction for anything other th an PSO’s removal of coal and limestone was objectively unreasona ble and vexatious. 3. Motion for Partial Summary Judgment Shortly after filing its motion for injunc tive relief, Willis moved for partial summary judgment on its tres pass and § 1983 claims agains t PSO. The linchpin of its request was PSO’s failure to file a condemnation acti on under Okla. Stat. tit. 66, § 7. Section 7 speaks generally to the power of railroads (and ot her entities such as PSO) but it does not set forth the means of us ing the power. For example, a railroad is empowered by section 7 to acquire property to construc t a railroad track, but the mechanism for doing so is set forth in Okla. Stat. tit. 66, § 51, which was used to acquire the easemen t from Willis. Setting aside the dubious nature of the claim that a separate condemnation action should have been filed under section 7, this court held in Willis that the only possible claims were that “ PSO wrongfully removed coal and limestone from beneath the surface easement,” 531 F.3d at 1306, and a “due process/equal protection claim . . . to the extent th at claim is based upon allega tions other than that PSO- 14 - wrongfully possessed and used the easemen t across Willis’ property during the state condemnation proceedings,” id

. As the magistrate judge explained, there was no good faith basis under Oklahoma law to argue that PSO should have used section 7 to condemn the easement, and in any event, “the Tenth Circuit decision ma kes clear that the case was remanded for only two claims, neither of which involves the procedure used to condemn Willis’ property.” Aplt. App. at 44. On appeal, Mr. Dickson says that he never argued on summary judgment that PSO should have filed a separate condemn ation action under section 7. This is simply incorrect. Mr. Dickson’ s district court brief repeat edly stated (at least seven times) that the basis for both the trespass a nd § 1983 claims was PSO’s failure to file a condemnation action under section 7. Furt her, he makes no attempt to jibe the new claim with this court’s holding in Willis , which limited any potential relief to PSO’s “wrongful[] remov[al] [of] coal and limestone from beneath the surface easement,” 531 F.3d at 1306 (emphasis added), which refers to the harvesting of specific minerals. 4. Failure to Inform PSO of W illis’s Desire to Settle In August 2010, while Will is’s appeal of the distri ct court’s order was pending in this court, PSO’s lawyer wrote to Mr. Dickson about resolving the litigation.- 15 - “I am prepared to request that my client drop its motions for atto rney fees and costs 2 if your client will drop the appeal and give a full and final releas e. . . . Please visit with your client and let me know your respon se.” Aplt. App. at 127-28. Mr. Dickson wrote back: I wish to advise you that I have no such interest in settling the case under those terms. As you are aware, I have a perfected attorney’s lien in this case based on a contingency fee arrangement. I would point out that if PSO were to settle around me I have the right to sue in my own right to establish what the claim would have been worth absent the settlement agreement. . . . I will contact you afte r I have discussed this matter further with my client. Id . at 129. But what Mr. Dickson failed to tell PSO ’s lawyer was that Willis wanted to accept the settlement offer. PSO learned this several da ys later when its lawyer received a letter fro m Buck Willis, the owner, stating that he told Mr. Dickson to accept the offer on the company’ s behalf. To move matter s forward, PSO asked for Mr. Dickson’s consent to communicate direc tly with his client. When Mr. Dickson failed to respond, PSO filed a motion to allo w it to communicate di rectly with Willis. Mr. Dickson opposed the motion and the magi strate judge held a hearing at which Mr. Willis testified that Mr. Dickson was not authorized to send the letter rejecting PSO’s offer.

2 PSO was seeking attorney fees and co sts against both Willi s and Mr. Dickson.- 16 - The magistrate judge concluded that Mr. “Dickson’s rejection of PSO’s invitation to engage in settlement discussi ons, without the consen t of his client, was unreasonable and vexatious a nd further multiplied these proceedings without any legitimate basis.” Id . at 47. Mr. Dickson argues th at his letter to PSO concerned only himself, and not Willis, and thus sancti ons are improper. We agree that Mr. Dickson’s letter states th at he had no interest in settl ing the case. However, it was Mr. Dickson’s failure to communicate Willi s’s desire to settle its claims and the opposition to PSO’s motion to communicate di rectly with Willis that was objectively unreasonable and unduly multip lied the proceedings.
D. Amount of Sanctions PSO sought $179,154.59 as excess costs, expenses and attorney fees. The magistrate judge reduced this amount to $15 2,281.57 in attorney fees and $1,324.84 in expenses. Mr. Dickson argues that th e magistrate judge e rred in awarding any attorney fees at all because PSO’s lawyers failed to sufficiently establish that the time spent was linked to the ac tions that formed the basis for sanctions. Mr. Dickson further argues that he provided the magistra te judge with “an it emized list of the specific billings he objected to . . . that were not relate d to the specific actions of Dickson that the Court asserted were sa nctionable.” Aplt. Op ening Br. at 51. However, Mr. Dickson’s failure to provide a ny references to the re cord or include the relevant documents in his Appendix prevents this court from cons idering this alleged

error. See Fed. R. App. P. 28 (a)(9)(A) & (e). His argument c oncerning expenses- 17 - suffers from the same deficiency. He stat es in a conclusory fashion that “[t]he [report and recommendation] allows PSO to recover travel costs for its attorneys commuting from their office to the court house,” Aplt. Op ening Br. at 52, without any reference to the pleading in which he raised this objection or the amount in dispute. There is a general argument that we are able to address, which is Mr. Dickson’s contention that the award cannot stand because it is a double recovery. He argues that Willis paid PSO its attorney fees and costs as part of the settlement, and thus “it was clearly erro r to grant PSO a judgment ag ainst Dickson as a sanction for the same fees and costs PSO ha d already recovered from Willis.” Id . at 49. We need not resolve whether PSO could recove r fees and costs against both Willis and Mr. Dickson because there is no evidence that Willis paid anything to PSO; instead PSO dropped its claim for fees and costs against Willis in exchange for a release of any and all claims. The judgment of the distri ct court is affirmed.

Entered for the Court
Wade Brorby Senior Circuit Judge