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959 F.2d 170 22 Fed.R.Serv.3d 952: United States Court of Appeals, Tenth Circuit
959 F.2d 170 22 Fed.R.Serv.3d 952: United States Court of Appeals, Tenth Circuit
2d 170
22 Fed.R.Serv.3d 952
Eric A. Overby of Arter & Hadden, Oklahoma City, Okl., for plaintiffappellee.
Before McKAY, Chief Judge, TACHA and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.
their motion stating that they had never been served and never resided or kept
an office at the location of David Starr's office (where the summons and
complaint in each of their names was sent), that neither they nor their agents or
representatives had authorized Newcombe to represent them or file any
pleadings on their behalf, and that they had never spoken to Newcombe before
October 3, 1989, the date they believed that Newcombe filed the first pleading
purportedly on their behalf.4 Plaintiff countered with an affidavit from
Newcombe stating that he filed the September 20 motion to dismiss on behalf
of Appellants, and filed the subsequent answer, status report, and discovery
request response on behalf of Appellants "in their capacity as partners."
Newcombe also averred that "to the best of [his] knowledge and belief, [he]
represented [Appellants] in their capacity as partners of Oaklawn ... at the
direction of Mr. David Starr ... until the Motion to Dismiss was filed on their
behalf by attorney Robert Dace...."
5
factual conclusions unless clearly erroneous but review the application of the
facts to the law under a de novo standard. See Midamerica Federal Sav. & Loan
Ass'n v. Shearson/American Express, Inc., 886 F.2d 1249, 1259 (10th
Cir.1989). See also Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 850 (10th
Cir.1986) (mixed question of law and fact reviewed under de novo standard
when it involves primarily a consideration of legal principles).
7
On the other hand, when the district court holds a pretrial evidentiary hearing to
resolve factual disputes relating to jurisdictional questions, the plaintiff has the
burden to prove facts supporting jurisdiction by a preponderance of the
evidence. See Ball, 902 F.2d at 197; Cutco Indus., 806 F.2d at 365.
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The district court also relied on Newcombe's affidavit, which stated that "to the
best of [his] knowledge and belief" he represented Appellants in their capacity
as partners of Oaklawn. An affiant's belief that the facts set forth in an opposing
affidavit are untrue is insufficient to put the contested facts in issue. See
Bumgarner v. Joe Brown Co., 376 F.2d 749, 750 (10th Cir.), cert. denied, 389
U.S. 831, 88 S.Ct. 99, 19 L.Ed.2d 90 (1967). See also Fed.R.Civ.P. 56(e).6
Furthermore, Newcombe's affidavit indicates that his representation of
Appellants was in their capacity of partners and was at the direction of David
Starr; however, it appears that Appellants were no longer partners of Oaklawn,
and nothing in the record indicates that David Starr had authority to secure
representation on Appellants' behalf. "An agent's authority to act cannot be
established solely from the agent's actions; the authority must be established by
an act of the principal." Pytlik v. Professional Resources, Ltd., 887 F.2d 1371,
1376 (10th Cir.1989) (citing Restatement (Second) of Agency 27 (1958)). By
relying solely on Newcombe's affidavit attesting to his belief that he had
authority to represent Appellants, the district court erroneously found that
Newcombe had authority based entirely on the acts of Newcombe and Starr.
Newcombe's belief and Starr's direction are insufficient to establish that
Newcombe was authorized to act on behalf of Appellants and waive their
defenses of lack of personal jurisdiction and insufficient service of process. See
Trustee's of Cent. Laborers' Welfare Fund v. Lowery, 924 F.2d 731, 734 (7th
Cir.1991) ("activity of a defaulting party's attorney cannot alone support a
finding of waiver").
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with Newcombe around October 3. This is apparently what the district court
believed, as its order characterized their affidavits as "conclusory" and "selfserving" and indicated its belief that Appellants were going along with an
"alleged charade" for nearly a year. If Appellants sat back idly knowing that
Newcombe was making appearances on their behalf, a court could find that
they implicitly authorized him to appear and his failure to raise the defenses on
their behalf would constitute a waiver. See id. ("defendant may [not] halfway
appear in a case, giving plaintiff and the court the impression that he has been
served, and [later] pull failure of service out of the hat like a rabbit"). However,
Appellants' statement that they did not talk to Newcombe prior to October 3 is
not affirmative proof that they talked to him on or after October 3. There is
nothing in the record indicating when Appellants became aware of the lawsuit
and of Newcombe's purported representation. Such evidence is necessary to
support a finding that Appellants implicitly authorized Newcombe to represent
them.
15
These factual issues remain unresolved due to the district court's reliance on the
pleadings and affidavits and its unyielding presumption of attorney authority.
Appellants' authorization of Newcombe to appear on their behalf, and
ultimately waive the defenses of lack of personal jurisdiction and service of
process, is a disputed material fact precluding summary judgment against
Appellants.
16
While the September 20 motion to dismiss is not part of the record before us,
the November 8 order denying the motion indicates that it asserted the sole
defense of failure to state a claim. Fed.R.Civ.P. 12(b)(6)
In fact, Newcombe filed the first pleading purportedly on their behalf two
weeks earlier on September 20
The district court's order granting Plaintiff's motion for summary judgment
indicates that Appellants had responded to Plaintiff's motion. In the final
pretrial order, entered the day before the order granting summary judgment, the
district court indicated that Newcombe appeared on behalf of Appellants. While
the court recognized that Dace had filed a motion to dismiss on behalf of
Appellants, it stated that Dace had refused to appear at the pretrial conference,
and Newcombe had not withdrawn as counsel of record