United States of America v. Dennis Torrey

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS TORREY,
Defendant-Cross-Claimant -
Appellant,
and
MELISSA TORREY; ERIC TORREY,
Defendants-Cross-Claimants,
v.
ALICE BISMARK,
Cross-Defendant.
No. 11-35903
DC No. 3:09 cv-0204 TMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
FILED
JUN 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Argued and Submitted May 22, 2013
Anchorage, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
This is a trespass action involving a five-acre parcel of land allotted for
Native Alaskan ownership. Dennis Torrey, a non-Native Alaskan, appeals the
district court’s grant of partial summary judgment in favor of the United States on
its trespass claim and denial of Torrey’s motion to dismiss on res judicata and
equitable estoppel grounds. The complex facts of this long-running quarrel are
well known to the parties and are not materially disputed. We set them forth here
only as necessary to explain our holding.
We review de novo the grant of summary judgment. United States v. City of
Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. This action is not barred by the doctrine of res judicata (claim
preclusion). Although a 1991 federal court order dismissed with prejudice a
trespass claim brought by Patrick Chuitt, Sr. (“Chuitt”) against Torrey and his
then-wife Alice, that action is not res judicata as to the present action because there
is no “identity of claims.” Turtle Isl. Restoration Network v. U.S. Dep’t of State,
673 F.3d 914, 917 (9th Cir. 2012) (quoting Tahoe-Sierra Pres. Council, Inc. v.

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Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)); see also
Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982).
The only right established in the first trespass action was Alice’s right to the
Chuit River Lodge parcel, and the present action does not threaten to destroy or
impair Alice’s rights. See Turtle Island, 673 F.3d at 917-18 (asking “whether
rights or interests established in the prior judgment would be destroyed or impaired
by prosecution of the second action”). Moreover, new evidence is available in the
present action because Alice has since given a sworn statement that she considers
Chuitt’s contractual obligations to be satisfied. See id. at 918 (asking “whether
substantially the same evidence is presented in the two actions”). Finally and most
importantly, the two actions do not share the same transactional nucleus of facts
because the harm alleged in the present action arises from factual developments
that followed the conclusion of the first trespass action. See id. (“whether the two
suits arise out of the same transactional nucleus of facts” is the “most important”
criterion in determining an identity of claims); United States v. Liquidators of
European Fed. Credit Bank, 630 F.3d 1139, 1151 (9th Cir. 2011) (“If the harm
arose from different facts at a different time, . . . then the plaintiff could not have
brought the claim in the first action.”). Chuitt’s heirs (here represented by the
United States) can now exercise ownership over the disputed Chuit River Lodge

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Appellee argues that Torrey lacks Article III standing to assert1
equitable estoppel as an affirmative defense against the trespass claim. We
disagree. Article III standing is a requirement that applies “almost invariably” to
plaintiffs and Torrey is in a purely defensive posture with regard to the plaintiffs-
appellees; he has brought no counterclaim against them. 13A Charles Alan Wright
et al., Federal Practice & Procedure § 3531 (3d ed. 2013); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992) (explaining that “[t]he party
invoking federal jurisdiction bears the burden of establishing” the elements of
Article III standing).
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parcel free and clear of any contractual obligation to Alice because Chuitt
conveyed to Alice a parcel of land that she now considers a satisfaction of his
obligations under their 1983 agreement. Alice’s acquiescence is a “[c]hange of
circumstances” – a “[m]aterial operative fact[] occurring after the decision of an
action with respect to the same subject matter” that “may be made the basis of a
second action not precluded by the first.” Restatement (Second) of Judgments § 24
cmt. f (1982). Accordingly, the first trespass action does not bar this action under
the doctrine of res judicata.
2. Torrey cannot meet the traditional requirements of equitable estoppel
because, at minimum, he cannot show ignorance of “the true facts.” Baccei v.1
United States, 632 F.3d 1140, 1147 (9th Cir. 2011). Since at least 1993, Torrey
has known that Chuitt conveyed a different parcel to Alice, despite being under a
court order to convey the Chuit River Lodge parcel to her. That much is clear from
Torrey and Alice’s 1993 marital settlement agreement, in which Alice disclaimed

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interest in the disputed parcel and Torrey disclaimed interest in the parcel that
Chuitt actually conveyed to Alice. In short, Torrey has known for approximately
twenty years that he is living on land owned by neither himself nor Alice. Having
long slumbered on any rights he may have, Torrey cannot now invoke the equitable
defense of estoppel.
AFFIRMED.

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