                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 2 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM P. BOSWELL, doing
    business as Rafter ‘B’ Ranch,

                Plaintiff-Appellant,
                                                         No. 03-4277
    v.                                             (D.C. No. 2:99-CV-680-G)
                                                           (D. Utah)
    GREGG O. JASPERSON; UNITED
    STATES OF AMERICA, through the
    Administrator of the Farmers Home
    Administration, United States
    Department of Agriculture,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the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.
      In this quiet title action brought pursuant to 28 U.S.C. § 2410(a)(1),   1



plaintiff-appellant William P. Boswell, appearing pro se, appeals the summary

judgment entered by the district court in favor of defendant-appellee Gregg O.

Jasperson. Plaintiff is also appealing two related evidentiary rulings that the

district court made in connection with its order granting summary judgment in

favor of Jasperson. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

      This case involves a dispute concerning the ownership of a parcel of real

property located in Goshen, Utah (the Feed Yard). As accurately summarized by

the district court, the relevant background facts are as follows:

             On October 1, 1974, Marsden and Melva Larsen . . . sold an
      18-acre plot of land including a feed yard to plaintiff’s father,
      [William G.] Boswell. The sale was pursuant to a Uniform Real
      Estate Contract . . . and a Warranty Deed was executed by the
      Larsens naming [William G.] Boswell as grantee. In May 1976,
      [William G.] Boswell obtained a loan for $120,000 from Zions First
      National Bank secured by a deed of trust on properties which
      included the feed yard. In March 1979, [William G.] Boswell
      obtained another loan for $100,000 from the Farmers Home
      Administration, again secured by a deed of trust on the same feed
      yard and properties. In August 1982, [William G.] Boswell filed a
      bankruptcy petition under Chapter 11 which listed the feed yard as
      part of his real property holdings.




1
        Section 2410(a)(1) grants the federal district courts jurisdiction over quiet
title actions involving “real or personal property on which the United States has
or claims a mortgage or other lien.” 28 U.S.C. § 2410(a)(1). The United States
does not dispute that it has a lien on the real property that is the subject of this
case. See R., Vol. 1, Doc. 1 at 2, ¶ 5; Vol., I, Doc. 5 at 2, ¶ 5.

                                           -2-
              Plaintiff alleges that in 1974, when he was thirteen years old,
       the original Warranty Deed held by the Larsens, which named his
       father [William G.] Boswell as grantee, was altered to substitute his
       name, William P. Boswell and his d/b/a Rafter ‘B’ Ranch, as
       grantees. [William G.] Boswell [also claims that the Warranty Deed
       was altered, but he] claims that a duplicate deed was changed and
       altered in 1980, naming his son and the d/b/a. However, neither
       Plaintiff nor his father assert that the lenders, defendant United
       States of America by and through Farmers Home Administration and
       Zions First National Bank, were ever given notice of such alleged
       changes or that the lenders ever consented to said alleged changes.
       Plaintiff recorded the altered deed in March 1983. The original deed
       naming [William G.] Boswell as grantee is missing, lost or otherwise
       unavailable. Title to the feed yard was conveyed to the United States
       of America (FHA) by the bankruptcy Trustee in [William G.]
       Boswell’s bankruptcy on September 15, 1993. Thereafter, the
       property was sold and conveyed by FHA to defendant Gregg O.
       Jasperson on March 19, 1997.

Boswell v. Jasperson , 266 F. Supp. 2d 1314, 1316 (D. Utah 2003).

       During the district court proceedings, although plaintiff produced a copy of

the altered warranty deed,   see Aplee. Br., Att. C, Ex. 1, the original altered

warranty deed was not produced. Likewise, the original warranty deed naming

William G. Boswell as grantee was not produced during the district court

proceedings. As noted by the district court, it is apparently “   missing, lost or

otherwise unavailable.” Id.

       Defendant Jasperson filed a combined motion to exclude the copy of the

altered warranty deed from evidence and motion for summary judgment. The

district court granted the motion to exclude and the motion for summary

judgment, concluding that the copy of the altered warranty deed was inadmissible

                                             -3-
under Utah Code Ann. § 78-25-17 and Fed. R. Evid. 1003, and that the undisputed

admissible evidence in the summary judgment record showed that plaintiff’s

father held legal and equitable title to the Feed Yard at the time of the bankruptcy

filing in 1982. In accordance with 11 U.S.C. § 541, the district court concluded

that the Feed Yard had thus been part of plaintiff’s father’s bankruptcy estate, and

it therefore quieted title to the Feed Yard in favor of Jasperson, since his chain of

title began with the bankruptcy trustee.   2



       In its order granting Jasperson’s motion for summary judgment, the district

court also struck an affidavit that plaintiff had submitted from his father, finding

that the affidavit was submitted in order to create a sham fact issue. As explained

by the district court:

       The belated assertions by way of an affidavit by [William G.]
       Boswell to the effect that he had no interest or title [in the Feed
       Yard] at the time he filed bankruptcy are found by the court to be
       distortions of the truth. The said affidavit contains averments
       directly contrary to sworn prior deposition testimony. The statements
       of [William G.] Boswell set forth in his affidavit appear to the Court
       to have been filed in order to create a sham fact issue, and the Court
       so finds.

Boswell, 266 F. Supp. 2d at 1320.




2
       Pursuant to 11 U.S.C. § 544(a)(3), the bankruptcy trustee is treated as a
bona fide purchaser of all the real property in a bankruptcy estate, with perfection
attaching at the time the bankruptcy petition is filed.

                                               -4-
       We review a grant of summary judgment de novo, applying the same

standard as the district court.   Welding v. Bios Corp. , 353 F.3d 1214, 1217 (10th

Cir. 2004). A party is entitled to summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). When determining whether a genuine issue of material fact exists,

“[t]he evidence of the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.”    Anderson v. Liberty Lobby, Inc.   , 477 U.S. 242, 255

(1986). Summary judgment is appropriate, however, if the party opposing the

motion “fails to make a showing sufficient to establish the existence of an

element essential to that party’s case.”   Celotex Corp. v. Catrett , 477 U.S. 317,

322 (1986).

       We affirm the entry of summary judgment in favor of Jasperson for

substantially the same reasons set forth by the district court in its comprehensive

and well-reasoned decision. First, in deciding whether a summary judgment

affidavit has been submitted in order to create a sham issue of fact, a district

court must consider “whether the affiant had access to the pertinent evidence at

the time of his earlier testimony or whether the affidavit was based on newly

discovered evidence, and whether the earlier testimony reflects confusion which


                                            -5-
the affidavit attempts to explain.”    Lantec, Inc. v. Novell, Inc. , 306 F.3d 1003,

1016 (10th Cir. 2002) (quotation omitted). In this case, plaintiff has made no

showing that his father did not previously have access to pertinent evidence, nor

has he shown that the summary judgment affidavit was based on newly discovered

evidence or was simply submitted to clarify certain matters. As a result, because

the record shows that William G. Boswell’s affidavit contains averments that are

directly contrary to his prior sworn deposition testimony,       see Boswell , 266 F.

Supp. 2d at 1317-18, we hold that the district court did not abuse its discretion in

striking the affidavit,   see Lantec , 306 F.3d at 1016-17 (reviewing district court’s

determination that summary judgment affidavit was submitted in order to create

sham fact issue for abuse of discretion).

       Second, we conclude that the district court did not abuse its discretion in

determining that the copy of the altered warranty deed was inadmissible under

Utah Code Ann. § 78-25-17 and Fed. R. Evid. 1003.            See Lantec, 306 F.3d at

1016 (“We review a district court’s decision to exclude evidence at the summary

judgment stage for abuse of discretion.”). Specifically, as found by the district

court, plaintiff’s “assertion that the deed was materially altered ‘with the consent




                                            -6-
of the parties affected by it,’ as provided in Utah Code Ann. § 78-25-17,   3
                                                                                is

unsupported by competent evidence.”       Boswell , 266 F. Supp. 2d at 1320. Further,

the district court made a reasonable determination that the copy of the altered

warranty deed was inadmissible under Fed. R. Evid. 1003, because: (1) a genuine

question has been raised as to the authenticity of the original altered warranty

deed; and (2) under the circumstances of this case, it would be unfair to admit the

copy in lieu of the original.   Id. at 1321.

       Having determined that the district court acted reasonably in excluding the

copy of the altered warranty deed and William G. Boswell’s affidavit, and having

conducted a de novo review of the remaining admissible evidence in the record,

we conclude that there is insufficient evidence in the record to support plaintiff’s

claim that his father did not hold legal or equitable title to the Feed Yard at the

time of the bankruptcy filing in 1982. Accordingly, because plaintiff has failed to

raise a genuine issue of material fact for trial with respect to his claim to




3
       Utah Code Ann. § 78-25-17 provides as follows:

       The party producing as genuine a writing which has been altered . . .
       must account for the appearance of alteration. He may show that the
       alteration was made by another without his concurrence, or was made
       with the consent of the parties affected by it, or otherwise properly or
       innocently made, or that the alteration does not change the meaning
       or language of the instrument. If he does this, he may give the
       writing in evidence, but not otherwise.

                                            -7-
ownership of the Feed Yard, the district court did not err in granting Jasperson

summary judgment and quieting title in his favor.   4



      Finally, we note that plaintiff argues in his opening brief that he did not

have a “chance” to provide testimony either from himself or his father in

opposition to Jasperson’s motion for summary judgment.      See Aplt. Br., Statement

of Issues at 1-2. This argument is frivolous. Under the Federal Rules of Civil

Procedure, plaintiff was free to obtain and submit any admissible testimony he

needed, either by affidavit, deposition, or otherwise, and he has made no showing

that the district court somehow failed to follow the proper procedures under Fed.

R. Civ. P. 56 or the discovery rules. Moreover, the record indicates that plaintiff

never moved under Fed. R. Civ. P. 56(f) for “a continuance to permit affidavits to




4
       In his opening brief, plaintiff claims that “[i]n 1994, the Larsens issued
another deed to me (a Quitclaim Deed) that corrected a mistake in the legal
description in the original Warranty Deed. I recorded that Quitclaim Deed in
March of 1995.” Aplt. Br., Statement of Facts at 2, ¶ 11. We also note that
plaintiff submitted a copy of the 1994 deed to the district court as part of his
opposition to the summary judgment motion.       See R., Vol. III, Doc. 87, Ex. 3.
Even if it is authentic, the 1994 deed is insufficient to defeat Jasperson’s motion
for summary judgment, because the grantee on the deed is “Rafter ‘B’ Ranch, c/o
William Boswell,” id. , and, due to the lack of a middle initial, there is no way to
determine based on the record before this court whether the grantee is plaintiff
(William P. Boswell) or his father (William G. Boswell). Consequently, without
more, the 1994 deed does not support plaintiff’s claim that the Larsens had
consented to an alteration with respect to the grantee in the original warranty
deed.

                                           -8-
be obtained or depositions to be taken or discovery to be had.” We also note that

plaintiff was represented by counsel in the district court proceedings.

      The judgment of the district court is AFFIRMED. We also DENY:

(1) Jasperson’s motion to dismiss this appeal on the ground that plaintiff failed to

file his opening brief on or before the date when the brief was due; and (2)

Jasperson’s request for an award of damages and costs under Fed. R. App. P. 38.    5




                                                      Entered for the Court


                                                      Monroe G. McKay
                                                      Circuit Judge




5
        Jasperson’s request for an award of damages and costs under Fed. R. App.
P. 38 is set forth in his response brief.    See Aplee. Br. at 15-17. The request is
improper because this court “may not award such a sanction under Rule 38
without a separately filed motion or notice [from the court].”      Smith v. Kitchen ,
156 F.3d 1025, 1030 (10th Cir. 1997). Neither of these conditions has been
satisfied here, as Jasperson has failed to file a separate motion under Rule 38, and
we are not inclined to raise the issue of sanctions sua sponte.

                                          -9-
