F I L E D

United States Court of Appeals

Tenth Circuit

DEC 16 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM C. WHITEHEAD,

Plaintiff - Appellant,

v.

ALLIED SIGNAL, INC.; AMERICAN

AIRLINES, INC., AMERICAN

TELEPHONE AND TELEGRAPH;

ASHLAND OIL, INC.; ATLANTIC

RICHFIELD COMPANY; BAXTER

HEALTHCARE CORPORATION,

doing business as: PHARMASEAL

LABORATORIES; BORG WARNER 

CORPORATION;

BRIDGESTONE/FIRESTONE INC,

formerly known as: FIRESTONE

TIRE & RUBBER COMPANY;

BROWN & ROOT, INC.; BULL HN

INFORMATION SYSTEMS, INC.,

formerly known as: HONEYWELL

BULL, INC.; COLTEC INDUSTRIES,

INC., formerly known as: COLT

INDUSTRIES, Inc., doing business as:

HOLLY SPECIALTY PRODUCTS;

DELUXE CORPORATION, doing

business as: DELUXE CHECK

PRINTERS, INC.; EXXON

CORPORATION; GENCORP INC.,

including DiversiTech General;

HALLIBURTON COMPANY;

MAREMONT CORPORATION;

MCDONNELL DOUGLAS

CORPORATION; MOBIL

CHEMICAL COMPANY, INC.;

NALCO CHEMICAL COMPANY; 

No. 98-6305

(D.C. No. CV-97-1877-C)

(Western District of Oklahoma)
*The case is unanimously ordered submitted without oral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1.9. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

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PPG INDUSTRIES, INC.;

ROCKWELL INTERNATIONAL

CORPORATION, formerly known as:

NORTH AMERICAN ROCKWELL;

SAFETY KLEEN CORPORATION;

SEAGATE TECHNOLOGY, INC.,

formerly known as: MAGNETIC

PERIPHERALS, Inc.; SHAKLEE

CORPORATION; TEXACO

REFINING AND MARKETING,

INC.; TEXAS INSTRUMENTS

INCORPORATED; THOMAS &

BETTS CORPORATION; UOP, INC.;

UNIROYAL, INC.; UNISYS

CORPORATION, formerly known as:

SPERRY CORPORATION, doing

business as: SPERRY-VICKERS;

WESTINGHOUSE ELECTRIC

CORPORATION; WEYERHAUSER

COMPANY; WOL CORPORATION,

also known as: Wolverine Pipe, 

Defendants - Appellees.

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.
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This diversity jurisdiction case involves claims under Oklahoma law of

forcible ejectment and abuse of process. Plaintiff William C. Whitehead appeals

the district court’s grant of summary judgment for defendants. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

The underlying circumstances of this case are familiar, having been before

this court on more than one prior occasion, and we need not repeat them in detail. 

See United States v. Hardage , 58 F.3d 569, 571-74 (10th Cir. 1995). In 1986, the

United States brought suit under the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA), seeking the cleanup of a Superfund

site near Criner, Oklahoma. See id. at 571. The district court approved a

remedial plan, including an order that defendants acquire neighboring tracts of

land within an “institutional control boundary.” See id. The court specified that

the defendants (collectively known as the Hardage Steering Committee or HSC)

acquire these tracts or easement interests therein “by negotiated purchase” and

that “[i]f the easement and property interests cannot be acquired through

negotiated agreement within ninety (90) days from the date of this Judgment and

Order, the Defendants shall apply to the Court for such relief as is necessary.” Id.

The defendants were able to acquire all of the tracts within the institutional

control boundary by negotiation, except for one 40-acre portion of a dairy farm

belonging to appellant. See id. Defendants then successfully moved to add
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appellant as a third-party defendant and sought condemnation of an interest in

appellant’s land. See id. at 571-72. The district court ordered condemnation of

the 40 acres, imposition of covenants restricting access thereto, and the fencing of

the property as requested by HSC. See id. at 573. We subsequently vacated the

district court’s order, holding that it lacked power under the All Writs Act to

condemn appellant’s land. See id. at 575-77. Following our remand of the case

to the district court, the HSC defendants moved successfully to amend the

institutional control boundary to exclude the 40-acre tract. Appellant then

brought suit—originally in state court, then in federal district court, having

successfully moved to dismiss the state court action without prejudice—bringing

claims of forcible ejectment, see 23 O.S. § 71, and abuse of process.

Defendants successfully moved for summary judgment on the merits of

both appellant’s claims. “We review a grant of summary judgment de novo,

applying the customary legal standard under Fed. R. Civ. P. 56(c).” Vice v.

Conoco, Inc. , 150 F.3d 1286, 1288 (10th Cir. 1998) (citations omitted).

I

The district court found that appellant could not maintain a complaint for

forcible ejectment, because appellees’ actions “were taken . . . under Court

order.” Whitehead v. Allied Signal , No. CIV-97-1877-C (W.D. Okla. July 22,

1998) (Mem. Op.) at 5. The district court’s opinion emphasized two factors. 
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First, the defendants had not themselves exercised force, because “the power of

the Court rather than the power of defendants [was] the ‘force’ involved.” Id. at

5-6. Second, the district court held that appellees “cannot be held liable for

acquiescing to the court’s authority as required by law.” Id. at 6.

On appeal, Whitehead contends that defendants cannot assert compliance

with the court’s order as justification for their temporary exclusion of him from

his property because the order had been sought by defendants in the first place. 

This argument is unavailing. Defendants’ motives are immaterial. Insofar as

appellant alleges that defendants sought the condemnation of his property as

retaliation for his wife’s testimony United States v. Hardage , such an improper

motive is relevant only to his claim of abuse of process, discussed infra at Section

III. 

Moreover, Whitehead’s apparent contention that there is an issue of fact as

to whether defendants were acting pursuant to a court order is wholly unsupported

in the record and thus cannot serve as a disputed issue of material fact sufficient

to defeat summary judgment. See Appellant’s App. at 142 (D. Ct. Order, Mar. 8,

1993, imposing restrictive covenants upon and allowing HSC access to property

in question “to survey the property and erect a fence for security purposes”). 

We agree with the district court that the threat of sanction for violating a

court order does not constitute exercise of force by defendants themselves such as
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would make out a violation of 23 O.S. § 71. See Crow v. Davidson , 96 P.2d 70,

72 (Okla. 1939) (holding that statute permitting triple damages for forcible

ejectment is to be construed narrowly). Nor does the building of the fence

constitute the active force sufficient to satisfy the requirements of 23 O.S. § 71. 

See Ansay v. Boecking-Berry Equip. Co. , 450 F.2d 433, 436 (10th Cir. 1971). 

Even construing appellant’s complaint liberally to incorporate a simple

claim for trespass as well as the triple damages claim, his allegations do not, as a

matter of law, allow him to maintain a trespass action against appellees. It is a

general rule of tort law that court orders validate actions that would otherwise

constitute intentional property torts such as conversion and trespass. See, e.g. ,

Mid-America Fire & Marine Ins. Co. v. Middleton , 468 N.E.2d 1335, 1338 (Ill.

App. Ct. 1984); American States Ins. Co. v. Citizens Fidelity Bank & Trust Co. ,

662 S.W.2d 851, 853 (Ky. Ct. App. 1984); Perry Center, Inc. v. Heitkamp , 576

N.W.2d 505, 511 (N.D. 1998); see also Restatement (Second) of Torts § 266

(1965) (“One is privileged to commit acts which would otherwise be a trespass to

a chattel or a conversion when he acts pursuant to a court order which is valid or

fair on its face.”).

The district court correctly noted the public policy interest in compliance

with judicial orders. See W.R. Grace Co. v. Local Union 759 , 461 U.S. 757, 766

(1983) (“It is beyond question that obedience to judicial orders is an important
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public policy. An injunction issued by a court acting within its jurisdiction must

be obeyed until the injunction is vacated or withdrawn.”) Parties should not be

forced to second-guess compliance with such orders because of the threat of

trespass or other tort liability should such orders later be vacated or otherwise

withdrawn. Whitehead argues that the eventual amendment of the institutional

control boundary supports an inference that inclusion of his property was never

necessary to the remedial scheme. We will not, however, look beyond the fact

that the district court’s order was facially valid and made within its jurisdiction,

until such time as it was vacated by this court. 

II

Appellant also raises a claim that he is entitled to damages, apparently

under the Takings Clause, for the temporary taking of his property for a public

purpose. We do not reach that claim because it is raised for the first time on

appeal. We “will consider matters not raised or argued in the trial court only in

‘the most unusual circumstances,’ which ‘may include issues regarding

jurisdiction and sovereign immunity, . . . instances where public interest is

implicated, . . . or where manifest injustice would result.’” Smith v. Rogers

Galvanizing Co. , 128 F.3d 1380, 1386 (10th Cir. 1997) (quoting Rademacher v.

Colorado Ass’n of Soil Conservation Districts Medical Benefit Plan , 11 F.3d
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1567, 1571-72 (10th Cir. 1993)). This claim does not implicate such

circumstances and hence we do not address it here.

III

The district court found that appellant alleges no abuse of process, again

because appellees’ actions were taken pursuant to a valid court order. “The

elements of abuse of process are (1) the improper use of the court’s process (2)

primarily for an ulterior or improper purpose (3) with the resulting damage to the

plaintiff asserting the misuse. Although a party may be motivated by bad

intentions, there is no abuse if the court’s process is used legitimately for its

authorized intentions.” Bank of Oklahoma, N.A. v. Portis , 942 P.2d 249, 255

(Okla. Ct. App. 1997) (citing Greenberg v. Wolfberg , 890 P.2d 895, 905 (Okla.

1994)) (emphasis in original).

Even were we to agree that appellant’s claim could survive summary

judgment on the issues of improper purpose and damages, his allegations cannot

demonstrate improper use of the court’s process. Regardless of any alleged

improper intentions, the record in Hardage clearly demonstrates that the restraints

imposed on appellant’s property were determined by the court to be for the

purpose of implementing the CERCLA remedial plan, and were valid until

vacated. Appellant appears to contend that our vacation of the district court’s

order and the later amendment of the remedial plan demonstrate that appellee’s
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request for the initial order was an improper use of the court’s process. We

disagree. An appeals court’s later reversal of a lower court’s decision does not

make a party’s actions in seeking that decision an abuse of process. Clearly, the

order at issue in this case was a legitimate use of the court’s process for its

authorized intentions, see Greenberg , 890 P.2d at 905, as appellees had been

specifically instructed, in the district court’s order of August 9, 1990, to “apply to

the Court for such relief as is necessary” following failure to acquire the property

by negotiation. See Hardage , 58 F.3d at 571. Therefore, we agree with the

district court that the facts in this case cannot support a finding of improper use

of process. 

AFFIRMED . The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge