Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1989)

MEMORANDUM

Ames sued the Federal Land Bank of Spokane (bank) for the collection of $12,339.69 with which he paid the delinquent personal property taxes of Ramon Trower in Yellowstone County. Ames alleged that in return for this payment he received an assignment of Yellowstone County's tax lien against Ramon's real property. The bank held a first mortgage on Ramon's property and foreclosed on it at a marshal's sale. The bank successfully moved for summary judgment under Rule 56(c), Fed. R. Civ. P. The district court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We review a summary judgment independently. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). The district court properly articulated and applied the standard for granting summary judgment under Rule 56(c). California Architectural Building Products, Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987). As the district court properly pointed out, the record contained no genuine issue of material fact as to whether the tax lien had been assigned to Ames. Indeed, Ames himself admitted in an affidavit that the tax lien was not properly assigned. Upon this record, the district court's conclusion that no genuine issue of material fact existed was proper. We affirm for the reasons stated by the district court.

On appeal, Ames asserts that the district court erred by failing to impose an equitable lien upon the Ramon Trower property. Ames did not raise this argument in the district court. The general rule followed in this circuit is that "absent exceptional circumstances, an issue not raised below will not be considered on appeal." United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985). Ames does not allege any exceptional circumstances surrounding his failure to raise the equitable lien issue in the district court. Nor does he allege that manifest injustice will ensue if we decline to consider this new issue. See Huettig & Schromm, Inc. v. Landscape Contractors Council of Northern California, 790 F.2d 1421, 1426 (9th Cir. 1986). Absent such circumstances, we may not review the equitable lien issue unless it falls under an exception to the general rule. Such exceptions are few and none apply here.

We may, in our discretion, consider a new issue which is first raised on appeal because of a change in the law. United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). There is no showing that this exception applies in this case.

We may also consider an issue that "is purely one of law and either does not affect or rely upon the factual record developed by the parties." Id. The newly raised equitable lien issue is not a pure matter of law the proper resolution of which is beyond any doubt. Rather, it would require us to construe and apply a state's principles of equity and may require further development of the factual record. It would also run the risk of harming the bank. If the bank "might have tried [its] case differently either by developing new facts in response to or advancing distinct legal arguments against the issue, [the new issue] should not be permitted to be raised for the first time on appeal." Id.

Finally, we may consider an issue not raised in the district court "that is both central to the case and important to the public." Yuckert v. Heckler, 774 F.2d 1365, 1367 (1985), rev'd on other grounds, Bowen v. Yuckert, 482 U.S. 137 (1987). Although the equitable lien issue may be central to the resolution of this case, it is not of particular importance to the public. Consideration of the new issue raised here would affect only the two parties involved.

Since the equitable lien issue raised by Ames on appeal does not fit within any recognized exception, the general rule that we will not consider such an issue on appeal applies.

AFFIRMED.