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

                                FOR THE TENTH CIRCUIT                    October 29, 2019
                            _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 In re: LINO MIRANDA MUNOZ,

        Debtor.

 -----------------------------

 SUPERIOR CLEANING SERVICE, LLC,

        Plaintiff - Appellant,

 v.                                                          No. 18-1395
                                                (D.C. No. 1:17-CV-01910-WJM-STV)
 LINO MIRANDA MUNOZ,                                          (D. Colo.)

        Defendant - Appellee.
                       _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before EID, KELLY, and CARSON, Circuit Judges.
                    _________________________________

       Plaintiff-Appellant Superior Cleaning Service, LLC (Superior) appeals the

Bankruptcy Court’s decision denying its request that all of a state court judgment

owed to it by Debtor-Defendant-Appellee Lino Munoz be excepted from Munoz’s



       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
discharge as a debt obtained by fraud. It also appeals the Bankruptcy Court’s failure

to award it attorney fees incurred in the adversary proceeding. We conclude we lack

jurisdiction to consider the fees issue but, exercising jurisdiction under 28 U.S.C.

§ 158(d), affirm the Bankruptcy Court’s decision that only a portion of the state court

judgment was nondischargeable.

                                    BACKGROUND

       In 2014, Munoz filed suit against Superior in Colorado state court, asserting

claims for breach of contract and unjust enrichment arising from an independent

contractor agreement between the parties regarding window cleaning services. Superior

answered and filed counterclaims against Munoz, including for breach of contract, fraud,

and civil theft. The state court’s clerk entered default against Munoz on Superior’s

counterclaims after Munoz failed to answer them. The state court later denied Munoz’s

motion to set aside the default.

       The case proceeded to a four-day jury trial on Munoz’s claims against Superior

and any damages to be awarded on Superior’s counterclaims. Because default had been

entered against Munoz on the counterclaims, the state court instructed the jury that

Munoz was liable on Superior’s fraud and other counterclaims as a matter of law and that

he had admitted Superior’s allegations against him.

       At the conclusion of the trial, the jury found against Munoz on his claims against

Superior and awarded Superior $1 in nominal damages on its breach of contract

counterclaim, $1 in nominal damages on its fraud counterclaim, and $12,500 in

exemplary damages on the fraud claim. The state court reduced the exemplary damages

                                             2
award to $1, because Colorado law prohibits exemplary damages in excess of actual

damages, resulting in a modified jury verdict awarding $3 to Superior, $2 of which

related to Superior’s fraud counterclaim.

       After trial, Superior moved for an award of attorney fees under the fee-shifting

provision in the parties’ agreement, which awards reasonable attorney fees to “the

prevailing [p]arty” in “any dispute arising from or related to” their agreement. Aplt. App.

Vol. III at 19-20 (quoting agreement). Pursuant to this provision, the state court awarded

more than $78,000 in attorney fees to Superior because it was the prevailing party on

both Munoz’s claims and its own counterclaims. Munoz unsuccessfully challenged the

fee award, leading the state court to award Superior additional attorney fees. The state

court later consolidated the $3 in damages awarded by the jury and its attorney fee

awards to Superior into a final judgment against Munoz for more than $90,000 (“State

Court Judgment”).

       A few months later, Munoz filed a Chapter 13 bankruptcy petition. Superior

responded by filing an adversary proceeding seeking a determination that the State Court

Judgment was a nondischargeable debt under 11 U.S.C. § 523(a)(2)(A) because it was

based on fraud. See id. (excepting from discharge debts “to the extent obtained by . . .

actual fraud”). Superior moved for summary judgment, and one of the issues the parties

debated in their briefing was whether the entire State Court Judgment was

nondischargeable under the statute or only the portion of it that arose from Superior’s

fraud counterclaim. Superior’s position was that the Supreme Court’s decision in Cohen

v. de la Cruz, 523 U.S. 213 (1998), entitled it to a finding that the entire State Court

                                              3
Judgment, including all of the state court’s attorney fee awards, was nondischargeable

because a portion of the Judgment indisputably arose from its fraud counterclaim.1

Superior also argued that Cohen barred the Bankruptcy Court from deciding that only a

portion of the State Court Judgment was excepted from discharge and, further, that an

apportionment analysis would be an impermissible collateral attack on the Judgment.

Munoz countered that Cohen did not support Superior’s argument, that only the portion

of the state court’s attorney fee awards that arose from the fraud counterclaim was

potentially nondischargeable under § 523(a)(2)(A), and that summary judgment should

be denied because Superior had not presented evidence that would allow the Bankruptcy

Court to determine what portion of the State Court Judgment arose from fraud. Munoz

also opposed Superior’s request, included in its summary judgment motion, that it be

awarded attorney fees incurred in the adversary proceeding under the fee-shifting

provision in the parties’ contract.

       The Bankruptcy Court granted Superior summary judgment in part and denied it in

part. As relevant to this appeal, it rejected Superior’s argument that Cohen entitled it to

the entire State Court Judgment, noting Cohen “did not eliminate the requirement of

causation,” because the Supreme Court had recognized in Cohen that the “amount


       1
         In Cohen, the Court considered whether nondischargeability under
§ 523(a)(2)(A) extends only to the value of what the debtor gained through fraud or
whether it extends to “all liability arising from fraud,” 523 U.S. at 215, which in
Cohen included treble damages and attorney fees awarded under a state consumer
fraud statute, see id. at 215-16. The Court held nondischargeability under the statute
extended to “all liability arising from fraud, and that an award of treble damages
[under the state fraud statute] therefore falls within the scope of the exception.” Id.
at 215.
                                              4
excepted from discharge [under § 523(a)(2)(A)] must be ‘arising from’ or ‘on account of’

fraud.” Aplt. App. Vol. III at 24 (quoting Cohen, 523 U.S. at 220-21). Applying this

rule, the Bankruptcy Court found the amount of the State Court Judgment attributable to

Munoz’s fraud, as litigated and decided in the state court proceedings, was $2. As a

result, the Bankruptcy Court held this portion of the State Court Judgment was

nondischargeable. The court concluded the remainder of the judgement, including the

more than $90,000 in attorney fees, was dischargeable because it arose from and was on

account of the parties’ contract. The Bankruptcy Court did not address Superior’s request

for an attorney fee award in the adversary proceeding in its decision.

       Superior appealed the Bankruptcy Court’s decision to the district court, where

it argued the court had erred in determining that only $2 of the total award was

nondischargeable and in failing to award Superior its attorney fees in the adversary

proceeding. As relevant here, Superior argued again that it was not required to

demonstrate what portion of the State Court Judgment was on account of fraud

because the entire State Court Judgment was nondischargeable under § 523(a)(2)(A)

pursuant to Cohen.

       On referral from the district court, the magistrate judge recommended that the

court reject Superior’s “all or nothing” argument, see Aplt. App. Vol. IV at 38, but

also concluded the state court must have awarded at least a portion of Superior’s

attorney fees on the basis of the fraud counterclaim and damages the Bankruptcy

Court had found to be nondischargeable. As a result, the magistrate judge

recommended that the district court remand the nondischargeability issue to the

                                             5
Bankruptcy Court so it could determine what portion of the attorney fees included in

the State Court Judgment were nondischargeable because they arose from Superior’s

fraud counterclaim. The magistrate judge also recommended that the district court

remand Superior’s request for an award of its attorney fees in the adversary

proceeding to allow the Bankruptcy Court to determine whether fees incurred in the

adversary proceeding were within the scope of the parties’ contractual fee-shifting

provision and, if so, whether Superior was a prevailing party in the adversary

proceeding.

      Munoz objected to the magistrate judge’s recommendation, arguing Superior

had not argued for or presented evidence in the Bankruptcy Court that would allow

the court to apportion the state court attorney fee awards as the magistrate judge had

recommended, and that it was improper under these circumstances to give Superior a

second bite at the nondischargeability apple. He also objected to the magistrate

judge’s recommendation regarding Superior’s claim to attorney fees in the adversary

hearing, arguing Superior had no statutory or contractual right to recover them.

Superior did not file objections to the magistrate judge’s recommendations, but rather

stated in a response to Munoz’s objections that it agreed with them.

      After considering the magistrate judge’s recommendations and the parties’

filings, the district court adopted the magistrate judge’s initial recommendation and

rejected Superior’s argument that the entirety of the State Court Judgment was




                                           6
nondischargeable based on Superior’s recovery of $2 on its fraud counterclaim.2 But

the district court did not adopt the magistrate judge’s recommendation to remand the

nondischargeability issue to the Bankruptcy Court for an apportionment analysis.

Instead, the court held that Superior had explicitly waived this theory of recovery by

arguing against apportionment when Munoz raised the issue in the Bankruptcy Court

and on appeal. As a result, the district court affirmed the Bankruptcy Court’s

decision that only $2 of the State Court Judgment was nondischargeable because it

arose from Superior’s fraud counterclaim. But the district court adopted the

magistrate judge’s recommendation that it remand the issue of whether Superior was

entitled to its attorney fees for the adversary proceeding to the Bankruptcy Court for

decision. This appeal followed.

                                    DISCUSSION

      A. Appellate Jurisdiction

      “Jurisdiction is a threshold question which an appellate court must resolve

before addressing the merits of the matter before it.” W. Energy All. v. Salazar,

709 F.3d 1040, 1046 (10th Cir. 2013) (internal quotation marks and alteration

omitted). Under 28 U.S.C. § 158, we have “jurisdiction of appeals from all final

decisions, judgments, orders, and decrees entered” by the district court on appeals

from the Bankruptcy Court. Id. § 158(d) (emphasis added). “[A] decision of the


      2
         The district court held Superior had misread Cohen because it failed to
recognize that Cohen required a showing that the allegedly nondischargeable debt
“arose from” amounts obtained by fraud. See Aplt. App. Vol. IV at 84 (quoting
Cohen, 523 U.S. at 215).
                                           7
district court on appeal from a bankruptcy judge’s final order is not itself final if the

decision remands the case to the bankruptcy judge for significant further proceedings.”

Masunaga v. Stoltenberg (In re Rex Montis Silver Co.), 87 F.3d 435, 438 (10th Cir. 1996)

(internal quotation marks omitted). We asked Superior to address our jurisdiction to hear

this appeal because the decision presented for review includes a remand of the

adversary proceeding attorney fees issue to the Bankruptcy Court.

       Superior argues the remand does not deprive us of jurisdiction to consider its

appeal because the attorney fees issue is collateral to the Bankruptcy Court’s decision

on the merits. We agree in part. In Budinich v. Becton Dickinson & Co.,

486 U.S. 196 (1988), the Supreme Court held that “a claim for attorney’s fees is not

part of the merits of the action to which the fees pertain,” id. at 200, with the result

that “an unresolved issue of attorney’s fees for the litigation in question does not

prevent judgment on the merits from being final” for purposes of appellate

jurisdiction, id. at 202. See also Rex Montis, 87 F.3d at 438 (when remanded matter

is unlikely to affect the issues on appeal, remand to Bankruptcy Court is not

“significant further proceedings” rendering the district court decision non-final).

Thus, we have jurisdiction to hear Superior’s challenge to the Bankruptcy Court’s

merits determination on the nondischargeability issue.

       But we lack jurisdiction to consider Superior’s argument that it is entitled to

recover its attorney fees in the adversary proceeding. This is so because there is

currently no Bankruptcy Court decision for us to review on this issue. And even if

the Bankruptcy Court’s failure to address this issue in its summary judgment order

                                               8
could be viewed as a denial of Superior’s request, the district court’s decision on this

issue is not final, as required for jurisdiction under § 158(d), because it remanded this

very issue to the Bankruptcy Court for determination. Accordingly, we do not have

jurisdiction to address the parties’ arguments regarding Superior’s request for

attorney fees in the adversary proceeding.

       B. Nondischargeability decision

       “When hearing an appeal from a district court’s review of a bankruptcy-court

order, we independently review the Bankruptcy Court’s decision, applying the same

standard as the district court.” Lee v. McCardle (In re Peeples), 880 F.3d 1207, 1212

(10th Cir. 2018) (internal quotation marks and alterations omitted). “We review

bankruptcy-court orders granting summary judgment in adversarial proceedings de novo,

and affirm if there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Id. (internal citation and quotation marks omitted).

       The Bankruptcy Court granted Superior’s summary judgment motion in part by

excepting $2 of the State Court Judgment from Munoz’s discharge, but held the

remainder of the Judgment was not a debt arising from or on account of fraud and hence

was not excepted from discharge under § 523(a)(2)(A). As part of this decision, the

Bankruptcy Court rejected Superior’s argument that the Supreme Court’s decision in

Cohen prohibited apportionment of the State Court Judgment and mandated that the

entire Judgment, including the attorney fee awards, was nondischargeable because it

included damages awarded for fraud. Though Superior challenged this determination in

its appeal to the district court, it has not renewed this argument in its appeal to this court.

                                               9
Accordingly, Superior has forfeited appellate review of its Cohen-based all-or-nothing

argument. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he

omission of an issue in an opening brief generally forfeits appellate consideration of that

issue.”).

       Rather than renewing its unsuccessful arguments to the bankruptcy and district

courts in this appeal, Superior takes a new tack. It argues here that the Bankruptcy Court

erred in its apportionment of the State Court Judgment because the state court record

establishes that all of the claims and counterclaims in that case arose from the fraud

the state court held was conclusively established by the Clerk’s entry of default

against Munoz. As a result, Superior contends, all of the attorney fee awards and

damages included in the State Court Judgment arose from and are on account of

Munoz’s fraud and are nondischargeable.

       For our purposes, the chief problem with this argument is that Superior did not

present it to the Bankruptcy Court or even the district court on appeal.3 Instead, as

the district court properly concluded:



       3
         After appellate briefing was completed in the district court and the
magistrate judge recommended that the district court reject Superior’s Cohen-based,
all-or-nothing argument, Superior argued for the first time in its response to Munoz’s
objections that the entire State Court Judgment was nondischargeable because its
fraud counterclaim against Munoz was so “inextricably linked” with its breach of
contract counterclaim that the “true nature” of the entire Judgment was
nondischargeable fraud. Aplt. App. Vol. IV at 64-65; see id. at 63-66. Given its
timing, it appears this new argument was an effort to persuade the district court to
decide the apportionment issue itself, and in Superior’s favor, rather than remanding
the issue to the Bankruptcy Court for determination as the magistrate judge had
recommended.
                                            10
       Superior consistently argued below and on appeal that the entire [State
       Court] Judgment is per se nondischargeable and that an apportionment
       analysis would be clear legal error. Superior maintained this argument in
       the face of Munoz’s repeated statements—statements that were, to a degree,
       against his own interest—that apportionment might be possible but
       Superior has not requested, nor assembled a record sufficient for, proper
       apportionment findings.
Aplt. App. Vol. IV at 89. As a result, the district court held Superior had explicitly

waived any argument that the Bankruptcy Court apportioned the State Court Judgment

incorrectly. See id.

       Superior ignores the district court’s waiver ruling in its opening brief, but then,

in response to Munoz’s argument on the issue, attempts to show in its reply brief that

it had sufficiently raised its current apportionment argument in the Bankruptcy Court.

We are not persuaded. Superior’s general references in its Bankruptcy Court filings

to the verdict on its fraud counterclaim “as demonstrated by the docket of the [State

Court Action],” see Reply Br. at 8-9, neither informed the Bankruptcy Court that

Superior contended all of the parties’ claims and counterclaims arose from Munoz’s

alleged fraud nor provided record support for such an assertion. And though

Superior points to one instance in the Bankruptcy Court in which it alleged that its

fraud claim was “inextricably intertwined with the other claims asserted and

litigated” in the state court action, id. Vol. III at 13, it provided no record support for

this conclusory statement and asserted it in an entirely different context—its

argument that apportionment of the State Court Judgment was legally barred by the

Rooker-Feldman doctrine. See id. at 13-14. As result, this and the other references



                                             11
on which Superior now relies did not raise its current apportionment theory before

the Bankruptcy Court.

       Further, Superior makes little effort in its reply brief or otherwise to confront

the basis of the district court’s waiver finding, which was that Superior knowingly,

deliberately, and repeatedly rejected apportionment as a basis for the Bankruptcy

Court to determine whether all or some of the Judgment arose from fraud and was

therefore nondischargeable. In fact, Superior asserted apportionment of the State

Court Judgment was legally barred. See, e.g., id. at 11 (stating that Munoz’s

apportionment arguments “are directly contradicted by well-established law that is

binding on this Bankruptcy Court”); id. at 13 (arguing that “dissecting the [State

Court] Final Judgment as Munoz demands would impose a limitation on Munoz’s full

liability to Superior, failing to make Superior whole, in direct contravention of

Cohen.” (internal quotation marks omitted)); id. at 12 (claiming Munoz’s argument to

“piecemeal the [State Court] Judgment, isolating only the ‘portion’ of the overall

award that is attributable to the fraud claim” was rejected in Cohen).

       “Waiver is the intentional relinquishment or abandonment of a known right.”

United States v. Dahda, 853 F.3d 1101, 1117 (10th Cir. 2017) (internal quotation

marks and brackets omitted), aff'd, 138 S. Ct. 1491 (2018). “[A] party that has

waived a right is not entitled to appellate relief.” United States v. McGehee,

672 F.3d 860, 873 (10th Cir. 2012) (internal quotation marks and emphasis omitted);

see Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011) (“If the theory

was intentionally relinquished or abandoned in the district court, we usually deem it

                                            12
waived and refuse to consider it.”). Based on our review of the Bankruptcy Court

record, we agree with the district court that Superior waived any argument that the

Bankruptcy Court erred in its apportionment of the State Court Judgment.4

                                     CONCLUSION

       For the reasons stated above, we AFFIRM the Bankruptcy Court’s decision

apportioning $2 of the State Court Judgment to Munoz’s fraud and holding only this

portion of the Judgment was nondischargeable under § 523(a)(2)(A). We also

DISMISS Superior’s appeal regarding its attorney fee request in the adversary

proceeding for lack of jurisdiction.


                                              Entered for the Court


                                              Allison H. Eid
                                              Circuit Judge




       4
          The district court also considered whether there were grounds to reverse the
Bankruptcy Court’s decision if Superior merely forfeited its new apportionment
argument, that is, simply neglected to raise the argument before the Bankruptcy
Court. See Richison, 634 F.3d at 1128 (“Waiver is accomplished by intent, but
forfeiture comes about through neglect.” (internal quotation marks omitted)).
“Unlike waived theories, we will entertain forfeited theories on appeal, but we will
reverse a district court’s judgment on the basis of a forfeited theory only if failing to do
so would entrench a plainly erroneous result.” Id. at 1128. But we will not consider
reversal based on a forfeited theory if the appellant fails to argue for plain error and its
application on appeal. See id. at 1131 (noting that failing to argue plain error on appeal
waives the argument in this court). Here, we agree with the district court that Superior
waived rather than forfeited an apportionment argument. Further, even if we were to find
forfeiture only, Superior did not argue plain error on appeal, which “surely marks the end
of the road” for this argument. Id.
                                            13
