Tracy O’reilly Kohlrautz v. CHRISTOPHER J. WEBER, Third-party-defendant -

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NOT FOR PUBLICATION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
TRACY O’REILLY KOHLRAUTZ,
Plaintiff-counter-defendant -
Appellee,
v.
CHRISTOPHER J. WEBER,
Third-party-defendant -
Appellee,
v.
OILMEN PARTICIPATION
CORPORATION,
Defendant-third-party-
plaintiff-cross- claimant - Appellant.
No. 08-15898
D.C. No. 2:00-CV-00042-RLH-
PAL
MEMORANDUM *
TRACY O’REILLY KOHLRAUTZ,
Plaintiff-counter-defendant -
Appellant,
v.
No. 08-17129
D.C. No. 2:00-00042-RLH-PAL
FILED
JAN 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,**
sitting by designation.
CHRISTOPHER J. WEBER,
Third-party-defendant -
Appellant,
OILMEN PARTICIPATION
CORPORATION,
Defendant-third-party-
plaintiff-cross- claimant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Argued and Submitted December 8, 2009
San Francisco, California
Before: SCHROEDER, LUCERO and CALLAHAN, Circuit Judges.**
This is an appeal and cross appeal from a final judgment entered in favor of
Oilmen Participation Corporation (“Oilmen”). The district court held that:
(1) Tracy O’Reilly Kohlrautz’s (“Tracy”) and Christopher J. Weber’s (“Weber”)
actions in filing a lis pendens, temporary restraining order (“TRO”) and complaint
against Oilmen regarding its real property in Nevada constituted an abuse of
process and slander of title; and (2) Weber was not entitled to immunity as his

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The parties are familiar with the facts of this case and we repeat them1
here only as necessary.
Tracy and Weber also challenge the district court’s decision to extend2
comity to a Bahamanian court’s divorce judgment. The district court looked to the
Bahamanian court’s decision for guidance as Tracy, her former husband, Franz
Kohlrautz and Oilmen (among others) all participated in the action. The only
aspect of the Bahamanian court’s judgment that the district court recognized was
the Bahamanian court’s finding that, in essence, Oilmen and its Nevada real
property were not part of the marital estate. Tracy and Weber have not shown that
the court abused its discretion in this finding. Sarei v. Rio Tinto, 487 F.3d 1193,
1211 n.20 (9th Cir. 2007).
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actions exceeded his authority as receiver. The district court, however, limited1
Oilmen’s attorney’s fees to those accrued up to the date of the court’s 2003
dismissal of Tracy’s complaint and denied Oilmen punitive damages and injunctive
relief. The parties appeal these rulings. We affirm.2
We review the district court’s findings of fact for clear error and its
conclusions of law are reviewed de novo. Mathews v. Chevron Corp., 362 F.3d
1172, 1180 (9th Cir. 2004). Attorney’s fees and punitive damages awards are
reviewed for an abuse of discretion. Bower v. Harrah’s Laughlin, Inc., 215 P.3d
709, 726 (Nev. 2009); Bongiovi v. Sullivan, 138 P.3d 433, 450-51 (Nev. 2006).
Abuse of process requires “(1) an ulterior purpose by the defendants other than
resolving a legal dispute, and (2) a willful act in the use of the legal process not
proper in the regular conduct of the proceeding.” Kovacs v. Acosta, 787 P.2d 368,

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369 (Nev. 1990). “The requisites to an action for slander of title are that the words
spoken be false, that they be maliciously spoken and that the plaintiff sustain some
special damage as a direct and natural result of their having been spoken.”
Rowland v. Lepire, 662 P.2d 1332, 1335 (Nev. 1983).
Here, the district court did not err where it found that Tracy and Weber
committed abuse of process and slander of title by filing the lis pendens, TRO and
complaint on Oilmen’s Nevada properties. Under Nevada law, filing a lis pendens
is proper only if “the action involve[s] some legal interest in the challenged real
property” and a lis pendens should not be used “to obtain a type of pre-judgment
attachment which can later be used in the eventual collection of a judgment.” See
In re Bradshaw, 315 B.R. 875, 888 (Bankr. D. Nev. 2004). The district court
found that Tracy and Weber drafted these filings claiming that Oilmen and the real
property were subject to the Texas judgment, even though they knew that there was
no judgment against Oilmen and that Tracy and Weber’s motive was to force a
settlement. Tracy and Weber have failed to demonstrate that the district court’s
findings were not supported by substantial evidence or that the court improperly
interpreted the applicable law.
The district court also found that, as receiver for the marital estate, Weber
falsely claimed that Oilmen was the subject of the Texas judgment when he and

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Tracy filed the lis pendens, TRO and complaint against Oilmen and that their
purpose was to force settlement. The court found this was part of a pattern of
groundless and vexatious litigation initiated by Weber and Tracy. On appeal,
Weber has not shown that the district court erred in finding that these actions
exceeded Weber’s authority as receiver. See Anes v. Crown Partnership, Inc., 932
P.2d 1067, 1071 (Nev. 1997).
Oilmen challenges the district court’s damages award. Attorney’s fees are
provided for by Nevada Revised Statute 18.010, which provides, in relevant part,
that “the court may make an allowance of attorney’s fees to a prevailing party.”
(emphasis added). We find that the district court did not abuse its discretion when
it limited Oilmen’s attorney’s fees to those accrued up to the date of the court’s
2003 dismissal of Tracy’s complaint. Bower, 215 P.3d at 726.
Further, we find the district court did not abuse its discretion when it denied
Oilmen an punitive damages and injunction. Although the court found that Tracy
and Weber’s belief that Franz had hidden assets in Oilmen was not a legally
sufficient defense to Oilmen’s claims for abuse of process and slander, the court
could reasonably conclude that the belief was sincere (or at least not sufficiently
malicious), and therefore deny punitive damages. Bongiovi, 138 P.3d at 450-51.

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Oilmen also failed to make a showing of any compelling need for injunctive relief.
University Sys. v. Nevadans for Sound Gov’t, 100 P.3d 179, 187 (Nev. 2004).
AFFIRMED.

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