Unpublished Disposition, 879 F.2d 865 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1987)

Thomas J. BONESS, Plaintiff-Appellant,v.DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellee.

No. 87-2899.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 29, 1989.Decided July 12, 1989.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


Appellant Thomas Boness filed an action to quiet title in Butte County Superior Court claiming ownership to his mother's house that now belongs to the United States Department of Housing and Urban Development (HUD). The case was removed to federal court.1  The district court granted the government's motion for summary judgment and entered an order quieting title in favor of HUD. Boness appeals, and we have jurisdiction under 28 U.S.C. § 1291 (1982). We affirm.

* Prior to June 25, 1974, the real property that is the subject of this case was owned by Boness's mother, Frances Boness. On June 25, 1974, Frances Boness executed a declaration of homestead relating to the property. On May 3, 1979, the public guardian of Butte County, as appointed conservator of the person and estate of Frances Boness, sold the property to Valdis and Gunta Zarins, and John and Donna Schlieper for $36,000.00. On February 5, 1983, Frances Boness died. Her will provided that all of her estate was to go to appellant. In April 13, 1983, the Schliepers borrowed $63,750.00 from Guild Mortgage Company (Guild). The Schlieper's executed a deed of trust to Guild as beneficiary. The loan was insured by HUD. The property was then sold by the Schliepers to a party named Killinger who assumed the promissory note.2  Killinger defaulted on the promissory note in 1985, and Guild foreclosed against the property. As a result of the foreclosure sale, a trustee's deed was issued to Guild on November 11, 1985. Guild filed a claim with HUD under the mortgage insurance contract. HUD paid the claim, and Guild executed a deed dated January 27, 1986, to HUD. The deed was recorded on January 31, 1986. HUD is the present owner of the property. HUD advertised the property for sale. The property was vacant when it initially was inspected by HUD. Subsequently, when the highest bidder inspected the property prior to the close of escrow, the property was found to be inhabited by appellant. This litigation ensued.

The government filed a motion for summary judgment on May 11, 1987. The motion was heard on July 17, 1987. The district court orally granted the motion, and asked the government to prepare the order. On August 6, 1987, before the order was entered by the district court, Boness filed a motion for reconsideration. On August 13, 1987, the district court entered its order granting the government's motion and quieting title. The court heard Boness's motion for reconsideration on September 25, 1987. The court denied the motion and asked the government to prepare an order. On November 2, 1987, before the order was filed, Boness filed his notice of appeal. Then, on November 10, 1987, the court entered its order denying Boness's motion for reconsideration.


Preliminarily, we reject the government's argument that we lack jurisdiction because Boness filed his notice of appeal before the district court entered its judgment on the motion for reconsideration. We agree with the government that Boness's motion for reconsideration was appropriately brought under Fed. R. Civ. P. 59(e). See Lewis v. United States Postal Serv., 840 F.2d 712, 713 n. 1 (9th Cir. 1988). We also agree that Boness's notice of appeal filed on November 2, 1987, was ineffective because it was filed before the entry of the court's order. See Acosta v. Louisiana Dept. of Health and Human Resources, 478 U.S. 251, 253-254 (1986) (a notice of appeal is ineffective unless filed after entry of judgment on a Rule 59 motion).

On November 16, 1987, however, after the judgment was entered, Boness filed a motion to proceed in forma pauperis with the district court. "We construe his motion to proceed in forma pauperis as a notice of appeal, for it satisfies the three conditions which permit such a construction: (1) it demonstrates his intent to appeal; (2) it was served upon defendants; and (3) it was timely filed. See Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978)." Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986). Boness's appeal is therefore properly before us.


We review de novo the district court's grant of summary judgment. See In re Walker, 861 F.2d 597, 599 (9th Cir. 1988). Boness contends that the appointment of the public guardian as the conservator of his mother's estate and the subsequent sale of his mother's house violated the due process clause under the fourteenth amendment to the United States Constitution. Boness concedes, however, that he was involved in unsuccessful litigation in state court over the appointment of the public guardian and sale of the property at the time the incidents took place. He is therefore barred under the principle of res judicata from relitigating those claims here. Trujillo v. County of Santa Clara, 775 F.2d 1359, 1366-67 (9th Cir. 1983).

Boness also contends that the declaration of homestead filed by his mother prior to establishment of the conservatorship prevented the sale of the property by the public guardian, and that the district court's order quieting title in favor of HUD violates article XVII, section 1 of the California Constitution. Initially, we note that article XVII, section 1 was repealed well before the establishment of the conservatorship and sale of the property. See Cal.Const. art. XVII, Sec. 1 (1879, repealed 1976). Additionally, we find that the sale was in accordance with the statutory provisions in existence in 1979. Section 1530 of the California Probate Code was in effect in 1979 when the public guardian, as conservator of the person and estate of Frances Boness, sold the property. Section 1530 authorized a guardian to sell the real property of a ward. See Cal.Prob.Code Sec. 1530 (West 1981) (repealed 1981). Section 1243(2) of the California Civil Code, also in effect at that time, provided that the homestead of an unmarried person was abandoned by the conveyance of the real property by the owner. See Cal.Civ.Code Sec. 1243(2) (West 1982) (repealed 1983). Thus, when the public guardian sold the real property of Frances Boness in 1979, and that sale was confirmed by the Butte County Superior Court, the conveyance constituted an abandonment of the declaration of homestead that Frances Boness filed in June 1974. Consequently, when Frances Boness died on February 5, 1983, she had no interest in the real property in question. Thus, her sole heir, the appellant, inherited no interest in the real property. His claim must therefore be denied.



The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


By stipulation of the parties, the complaint was dismissed without prejudice and refiled in federal court


It is unclear from the record what happened to the Zarins' interest in the property