                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                      May 22, 2019
                         _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    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.                                                   No. 18-5054
                                             (D.C. No. 4:17-CV-00365-GKF-FHM)
    CENTERPOINT ENERGY                                   (N.D. Okla.)
    OKLAHOMA GAS, d/b/a
    CenterPoint Energy Resources Corp,

          Defendant - Appellee.
                        _________________________________

                          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).
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
           competency 1 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.

                                        2
     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 summary-
judgment 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.
                                      3
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




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