UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WAYNE PENN SCHAFER, Trustee 

of the Wayne Penn Schafer Separate 

Property Trust Established October 

5, 1982, as Amended and Restated 

on July 9, 2007, 

 Plaintiff - Appellant, 

v. 

CENTERPOINT ENERGY 

OKLAHOMA GAS, d/b/a 

CenterPoint Energy Resources Corp, 

 Defendant - Appellee. 

No. 18-5054 

(D.C. No. 4:17-CV-00365-GKF-FHM) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT *

_________________________________ 

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. 

_________________________________ 

This appeal stems from a property dispute. The landowner alleges 

that a pipeline is being operated on his land without an easement, and the 

 

*

 Oral argument would not materially help us to decide this appeal. We 

have thus decided the appeal based on the briefs and the appendix. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 22, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

pipeline owner insists that it has an easement. The district court granted 

summary judgment to both sides on some issues and denied summary 

judgment on other issues. The landowner was dissatisfied with these 

rulings and appealed, but we lack appellate jurisdiction. 

The landowner asserted three claims (unjust enrichment, trespass, 

and nuisance) against the pipeline owner, seeking damages and a

permanent injunction. Both sides moved for partial summary judgment, and 

the district court granted the pipeline owner’s motion on 

 the applicability of state law to the part of the trespass claim 

arising after the pipeline owner had obtained a certificate of 

competency1

 and 

 the unavailability of unjust enrichment and punitive damages. 

The court also granted partial summary judgment to the landowner on 

multiple affirmative defenses. But the court denied the landowner’s request 

for a permanent injunction, concluding that the landowner had not shown 

actual success on the trespass claim. 

Generally, appellate jurisdiction is confined to a district court’s final 

decisions. 28 U.S.C. § 1291. But the rulings here did not constitute a final 

decision because the district court has not yet conducted a trial on 

 the landowner’s claims for trespass and nuisance and 

 some of the pipeline owner’s affirmative defenses. 

 

1

 The federal government issued the certificate in 1950, removing 

federal restrictions on alienation of the land. 
3 

In the absence of a final decision, a party can appeal under 28 U.S.C. 

§ 1292(a)(1) for orders “granting, continuing, modifying, refusing, or 

dissolving injunctions.” 28 U.S.C. § 1292(a)(1). But even when an 

injunction is involved, a party cannot appeal the denial of summary 

judgment based on unresolved factual issues. Switzerland Cheese Ass’n, 

Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 25 (1966).2

This limitation applies here: The district court denied the 

landowner’s request for a permanent injunction because the landowner had 

not proven actual success on the merits. And factual issues remain on the 

defense of a prescriptive easement. We thus conclude that appellate 

 

2

 In Tri-State Generation & Transmission Association, Inc. v. 

Shoshone River Power, Inc., we used broad language when referring to the 

scope of appellate jurisdiction for denials of injunctive relief: “We agree 

with the Eleventh Circuit in Cable Holdings of Battlefield, Inc. v. Cooke 

[citation omitted], that an interlocutory order expressly granting or 

denying injunctive relief fits squarely within the plain language of 

section 1292(a)(1).” 874 F.2d 1346, 1351 (10th Cir. 1989). But this broad 

language “must be interpreted with reference to the circumstances of the 

particular case and the question under consideration.” Bryan Garner, et al., 

The Law of Judicial Precedent 80 (2016) (citation omitted). In Tri-State, 

we didn’t address the applicability of § 1292(a)(1) when the district court 

denied summary judgment on an injunction claim based on the existence of 

unresolved factual issues. There the district court had denied a summaryjudgment motion for injunctive relief based on interpretation of a contract 

rather than the presence of a factual issue. Tri-State, 874 F.2d at 1350. 
4 

jurisdiction cannot be based on § 1292(a)(1). Given the absence of 

appellate jurisdiction, we dismiss the appeal. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge