UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KARL T. ANDERSON, solely in his 

capacity as Chapter 7 Trustee for the 

bankruptcy estate of Robert Leone Davies 

and Amber Tracey Davies, 

 Plaintiff - Appellant, 

v. 

SEVEN FALLS COMPANY, a Delaware 

corporation, d/b/a The New Seven Falls 

Company, d/b/a The Cottage Company, 

d/b/a Seven Falls Pipeline & Reservoir, 

 Defendant - Appellee. 

No. 14-1515 

(D.C. No. 1:12-CV-01490-RM-CBS) 

(D. Colorado) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

I. INTRODUCTION 

Karl T. Anderson, in his capacity as trustee of the bankruptcy estate of Amber 

Tracey Davies and Robert Leon Davies, seeks to appeal the district court’s summaryjudgment ruling, which equitably limits the bankruptcy estate’s potential recovery in a 

personal-injury action originally brought by Ms. Davies. Because we conclude the order 

 *

 This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 31, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

appealed from is not a final decision, we lack jurisdiction over the appeal and must 

dismiss. 

II. BACKGROUND 

In June 2010, Ms. Davies was injured while visiting a Colorado nature park 

operated by Seven Falls Company. Ms. Davies was treated for her injuries and received a 

tentative diagnosis of “complex regional pain syndrome” from her treating physician. 

Shortly after her accident, Ms. Davies retained counsel to help her “determine if [she] had 

any basis to have [her] medical bills paid.” Her attorney filed a notice of claim with 

Seven Falls’ insurer on August 26, 2010, notifying the insurer of Ms. Davies’s injuries. In 

June 2011, the attorney sent a settlement demand to Seven Falls’ insurer, seeking 

recovery of Ms. Davies’s damages. 

Just over a month later, on July 15, 2011, Ms. Davies and her husband filed for 

Chapter 7 bankruptcy in California. Although Ms. Davies included debts related to her 

injuries on the bankruptcy schedules, she did not disclose her personal-injury claim 

against Seven Falls. Ms. Davies contends a paralegal for her bankruptcy counsel led her 

to believe the claim did not need to be disclosed. The bankruptcy court issued an order in 

the Davieses’ bankruptcy in October 2011, which included a discharge of debts Ms. 

Davies incurred as a result of her injury sustained at Seven Falls’ premises. 

In June 2012, Ms. Davies initiated this personal-injury action against Seven Falls. 

Thereafter, in March 2013, Ms. Davies’s counsel notified the bankruptcy trustee that the 

claim against Seven Falls had been omitted from her bankruptcy schedules. In response, 

the bankruptcy court reopened Ms. Davies’s bankruptcy, and the bankruptcy trustee, Karl 
3 

T. Anderson (the Trustee), was made a party to this personal-injury action. The Trustee 

retained Ms. Davies’s personal-injury attorneys as special counsel to pursue the personalinjury litigation. Seven Falls then filed a motion for summary judgment, arguing that Ms. 

Davies and the Trustee were judicially estopped from bringing a personal-injury claim 

that had not been disclosed in Ms. Davies’s bankruptcy. 

The district court granted the motion for summary judgment as to Ms. Davies but 

denied it as to the Trustee. The district court ruled the doctrine of judicial estoppel did not 

“block the claims of the Trustee . . . on behalf of Ms. Davies’[s] creditors or the Trustee’s 

interests” but that it “applied as to any recovery in excess of [these amounts] which 

would be surrendered back to Ms. Davies.” The district court therefore concluded the 

Trustee’s “[r]ecovery will be permitted to the limited extent of the creditor claims and 

such other sums as are necessary for the Trustee’s fees and costs.” 

Seven Falls then sought leave to deposit $17,011.46 with the court under Federal 

Rule of Civil Procedure 67, asserting this sum was adequate to satisfy the creditors’ 

proofs of claim filed in Ms. Davies’s bankruptcy case. Seven Falls also moved to vacate 

the trial date for the personal-injury action, seeking to forgo trial and resolve the 

personal-injury action by agreeing to pay the full amount of creditor claims. The Trustee 

disputed Seven Falls’ calculation of the amount needed to fully fund the Davieses’ 

bankruptcy estate, asserting in its briefing that approximately $277,000 was necessary to 

satisfy the creditors’ claims, the Trustee’s statutory fee, and the attorney fees and costs 

payable to the Trustee’s counsel by statute. The district court granted Seven Falls’ 

motions to deposit the $17,011.46 with the court and to vacate the trial. The Trustee then 
4 

filed a motion seeking reconsideration of the district court’s summary-judgment ruling. 

While that motion was pending, Seven Falls filed motions seeking a determination of the 

Trustee’s fees and costs and an order barring the Trustee’s special litigation counsel from 

recovering their fees and costs. 

The district court denied the Trustee’s motion for reconsideration, and the Trustee 

filed a notice of appeal from the district court’s partial grant of summary judgment in 

favor of Seven Falls. The district court has yet to rule on Seven Falls’ outstanding 

motions relating to the Trustee’s fees and costs. 

III. ANALYSIS 

Before considering the Trustee’s arguments on the merits, we must assess whether 

we have subject matter jurisdiction over this appeal. “It is well-settled that this court has 

an independent duty to inquire into its jurisdiction over a dispute, even where neither 

party contests it and the parties are prepared to concede it.” In re Am. Ready Mix, Inc., 14 

F.3d 1497, 1499 (10th Cir. 1994). Of relevance here, our jurisdiction is limited to appeals 

from “final decisions of the district courts.” 28 U.S.C. § 1291. “A final judgment is one 

that terminates all matters as to all parties and causes of action.” Utah v. Norton, 396 F.3d 

1281, 1286 (10th Cir. 2005) (internal quotation marks omitted). A decision is not final 

unless it “ends the litigation on the merits and leaves nothing for the court to do but 

execute the judgment.” Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 204 (1999). 

“[A]ny order or other form of decision, however designated, which adjudicates fewer 

than all the claims or the rights and liabilities of fewer than all the parties shall not 

terminate the action as to any of the claims or parties.” Norton, 396 F.3d at 1286 
5 

(alteration in original). Thus, “[o]rders granting partial summary judgment or denying 

summary judgment are generally not final appealable orders under 28 U.S.C. § 1291.” 

Poolaw v. Marcantel, 565 F.3d 721, 728 (10th Cir. 2009); see also Liberty Mut. Ins. Co. 

v. Wetzel, 424 U.S. 737, 744 (1976) (holding that nonfinal partial summary judgment 

could not properly be certified as final under Federal Rule of Civil Procedure 54(b)). 

The Trustee seeks to appeal from the district court’s order granting summary 

judgment as to Ms. Davies and denying summary judgment as to the Trustee. But that 

order expressly permits the Trustee’s claim to proceed to trial, though it limits the 

Trustee’s recovery on that claim to the “extent of the creditor claims and such other sums 

as are necessary for the Trustee’s fees and costs.” Thus, the district court’s order did not 

“terminate[] all matters as to all parties and causes of action” and therefore was not a 

final, appealable decision. Norton, 396 F.3d at 1286 (internal quotation marks omitted). 

The Trustee contends that “Seven Falls’ payment of $17,011.46 into the Court 

Registry rendered the district court’s Order granting partial summary judgment of [the 

Trustee’s] claims final for purposes of this appeal.” The premise of this argument is that 

this deposit satisfied in full Seven Falls’ potential liability on the merits of the personalinjury claim. But that premise is faulty. As the parties concede, the $17,011.46 deposited 

with the court covers only the amount of creditor claims against the bankruptcy estate; it 

does not cover any portion of the Trustee’s fees and costs. Yet the district court ruled the 

Trustee could recover both the amount of creditor claims and the fees and costs incurred 

in the bankruptcy. Thus far the district court has not determined the amount necessary to 

satisfy the Trustee’s fees and costs—a calculation on which the parties vigorously 
6 

disagree. Accordingly, the extent of Seven Falls’ potential liability—measured by the 

amount necessary to satisfy both the creditors’ claims and the Trustee’s fees and costs—

remains indeterminate. And although the district court allowed Seven Falls to deposit 

funds with the court, it has not entered a judgment awarding a specific dollar amount of 

damages to the Trustee or otherwise made a determination regarding Seven Falls’ 

liability or the Trustee’s entitlement to damages. A district court order that leaves both 

the fact and the scope of the defendant’s liability unresolved is not a final decision on the 

merits. 

The Trustee resists this conclusion by arguing the resolution of the Trustee’s fees 

and costs is a “collateral” issue that “do[es] not affect the finality of the district court’s 

judgment on the merits.” The Trustee relies on Ray Haluch Gravel Co. v. Central 

Pension Fund, 134 S. Ct. 773 (2014), and Budinich v. Becton Dickinson & Co., 486 U.S. 

196 (1988), for the proposition that “the pendency of a ruling on an award for fees and 

costs does not prevent, as a general rule, the merits judgment from becoming final for 

purposes of appeal.” Ray Haluch, 134 S. Ct. at 777; see Budinich, 486 U.S at 199, 202–

03 (“[A] decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not 

there remains for adjudication a request for attorney’s fees attributable to the case.”). But 

the Trustee’s reliance on this authority is misplaced. Ray Haluch and Budinich address 

whether an unresolved claim for attorney fees incurred “for the litigation at hand” affects 

the finality of an otherwise final order. Budinich, 486 U.S. at 201; accord Ray Haluch, 

134 S. Ct. at 780. The Supreme Court has concluded such a claim is collateral to a 

decision on the merits because “a claim for attorney’s fees is not part of the merits of the 
7 

action to which the fees pertain.” Budinich, 486 U.S. at 200. We have interpreted these 

cases as applying only to “attorneys’ fees requests for the ‘litigation at hand’” when 

considering the jurisdictional effect of an unresolved attorney-fee issue. Lampkin v. Int’l 

Union, United Auto., Aerospace & Agr. Implement Workers of Am. (UAW), 154 F.3d 

1136, 1140 (10th Cir. 1998). Where a request for fees arises from litigation other than the 

case at hand, the fee question is not collateral and “may have to be litigated at trial as a 

component of the plaintiff’s damages, rather than ascertained in a post-judgment 

collateral proceeding.” McKissick v. Yuen, 618 F.3d 1177, 1197 (10th Cir. 2010).

Here, the district court is not faced with an outstanding claim for attorney fees for 

the litigation at hand, i.e., a claim that Seven Falls must, by statute or contract, pay the 

attorney fees incurred by Trustee’s counsel in the personal-injury action. Rather, pursuant 

to the district court’s judicial-estoppel ruling, the Trustee’s fees and costs are merely the 

yardstick by which the district court elected to measure the Trustee’s permissible 

recovery in the personal-injury action. Cf. Lampkin, 154 F.3d at 1140 (10th Cir. 1998) 

(holding that an award of attorney fees under the Labor Management Relations Act was 

functionally an award of compensatory damages, “which only incidentally happens to be 

measured in this instance solely by the attorneys’ fees incurred by the plaintiff”). That 

some portion of the Trustee’s recovery will ultimately be paid to the Trustee’s attorneys 

does not mean the district court’s ruling on the scope of Seven Falls’ potential liability is 

merely an outstanding “ruling on an award for fees and costs” within the meaning of Ray 

Haluch and Budinich. Instead, calculation of those fees and costs is indispensable to a 
8 

determination of Seven Falls’ ultimate liability and not a collateral issue that the district 

court may consider independently of a final decision on the merits. 

Moreover, at least some portion of the Trustee’s fees and costs arise from the 

Trustee’s administration of the bankruptcy estate itself and therefore are not “attributable 

to the case” at issue under Budinich. See id. (emphasis omitted) (quoting Budinich, 486 

U.S. at 202–03). The Trustee is entitled to a statutory fee for administering the 

bankruptcy estate, and, in addition to employing litigation counsel to pursue the personalinjury litigation, the Trustee employed general counsel to assist “in the bankruptcy case.” 

Those fees and costs incurred by the Trustee and general counsel arising from the 

bankruptcy case are not attributable to the personal-injury action but, under the district 

court’s judicial-estoppel ruling, must be determined in assessing the scope of Seven 

Falls’ liability. Accordingly, we conclude the determination of the Trustee’s fees and 

costs is not merely collateral to the merits and must be resolved before the district court’s 

order may properly be considered a final, appealable decision. 
9 

IV. CONCLUSION 

The district court’s partial summary-judgment ruling was not rendered final by 

Seven Falls’ deposit of funds with the court. The resolution of the Trustee’s fees and 

costs goes to the amount of Seven Falls’ potential liability and is not merely a collateral 

attorney-fee request. The district court’s order is therefore not a final, appealable decision 

over which we may exercise jurisdiction under 28 U.S.C. § 1291. We therefore lack 

jurisdiction and must dismiss this appeal. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge