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22-11753•Gregory Makozy v. Westcor Land Title, et al.
22-11753Court of Appeals for the Eleventh Circuit12.05.2023
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11753
Non-Argument Calendar
____________________
GREGORY MAKOZY,
Plaintiff-Appellant,
versus
WESTCOR LAND TITLE,
ARMOUR SETTLEMENT SERVICES,
XL INSURANCE,
d.b.a. Indian Harbour Insurance,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-11753
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cv-14367-DMM
____________________
Before J ILL PRYOR , LAGOA , and ANDERSON, Circuit Judges.
PER CURIAM:
Greg Makozy, proceeding
pro se, appeals the district court’s
dismissal with prejudice of his complaint as barred by
res judicata
based on the prior federal lawsuit that Makozy had filed that the
court dismissed as barred by the statute of limitations, and the de-
nial of his motion to reopen and for recusal. He argues that
res
judicata did not apply because he added a new defendant and new
claims to his complaint and that the district court abused its discre-
tion in denying his motion for recusal because the district judge
was biased against him. In response, Westcor Land Title
(“Westcor”) and Armour Settlement Services (“Armour”) argues
that we lack jurisdiction over Makozy’s appeal because (1) Makozy
failed to evince an intent to appeal any particular order or decision
and (2) he failed to timely file his notice of appeal.
For the following reasons, we conclude that we have appel-
late jurisdiction over the appeal and that the district court did not
err in dismissing Makozy’s complaint.
I.
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22-11753 Opinion of the Court 3
Because the district court dismissed this case under the doc-
trine of
res judicata, we first discuss Makozy’s prior lawsuit that
was dismissed.
See Makozy v. Stewart Title, No. 20-14316-cv, 2021
WL 686863 (S.D. Fla. Feb. 11, 2021). In September 2020, Makozy,
proceeding
pro se, filed an initial complaint against Stewart Title
Guaranty Company (“Stewart”), Westcor, and Armour, which the
district court dismissed without prejudice for failure to properly in-
voke subject matter jurisdiction. Subsequently, Makozy filed a first
amended complaint, which the district court dismissed without
prejudice for failing to cure the jurisdictional defects.
Then, in October 2020, Makozy filed a second amended
complaint against Stewart, Westcor, and Armour (“the first law-
suit”), which alleged the following. In May 2015, Makozy sold a
property in Mars, Pennsylvania, (the “Mars property”) and subse-
quently filed a notice of mechanic’s lien on the Mars property. The
buyer of the property refinanced the mortgage on the Mars prop-
erty twice, using Defendants to conduct the refinance transactions.
According to Makozy, Stewart, Westcor, and Armour “missed or
ignored” the mechanic’s lien on the Mars property and failed to no-
tify him of the transactions in violation of the Real Estate Settle-
ment Procedures Act (“RESPA”), 12 U.S.C. § 2601
et seq., and
other laws. Makozy sought $75,000 in compensatory damages and
$75,000 in punitive damages from each defendant.
Westcor and Amour moved to dismiss the first lawsuit. The
district court granted the motions to dismiss, finding that Makozy’s
claims were time barred by the applicable statutes of limitations
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4 Opinion of the Court 22-11753
and dismissing the second amended complaint with prejudice.
Ma-
kozy v. Westcor Land Title, 852 F. App’x 518, 518–19 (11th Cir.
2021). Makozy appealed that decision to this Court, and we af-
firmed because the district court properly dismissed the first law-
suit as time barred.
Id. at 519. Following our decision, Makozy
sought to add XL Insurance (“XL”) as a party to the first lawsuit,
but the district court denied his motion because the case had been
closed.
Turning to this appeal, Makozy filed a complaint against
Westcor, Armour, and XL in September 2021 and alleged the fol-
lowing. In May 2015, he sold the Mars property and subsequently
filed a notice of mechanic’s lien on that property. The buyers twice
refinanced the mortgage on the property, using the defendants to
conduct the refinance transaction, and “[t]he underwriters who in-
sured the loan was Westcor Land Title who had E & O insurance
with XL insurance.” Armour had “deliberately ignored the me-
chanics lien” and did so “because they would no[t] be able to make
money on the loan closing,” and both Armour and Westcor failed
to notify him of the refinance. Makozy’s only allegation against XL
was that it “provided the E & O insurance for errors.” Makozy
again sought $75,000 in compensatory damages and $75,000 in pu-
nitive damages from each defendant. In November 2021, Makozy
moved for leave to file an amended complaint to add Greenwich
Insurance, a partner of XL, and the district court granted leave to
amend. In the “Statement of Claims” section of the amended
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22-11753 Opinion of the Court 5
complaint, Makozy stated only that “[i]t needs to be noted that
Greenwich Insurance issued the E&O policy for the transaction.”
Then, Westcor and Armour filed a joint motion to dismiss,
which XL joined, arguing,
inter alia, that Makozy had failed to state
a cause of action. Specifically, they argued that the complaint did
not contain a single factual allegation, identify any causes of action,
or seek any relief, and that Makozy’s prior filings suffered from
these same deficiencies.
On April 4, 2022, the district court granted the defendants’
motion to dismiss. The district court first stated that Makozy had
unsuccessfully tried to bring the same lawsuit in 2020, with “the
exact same alleged mechanic’s lien, the exact same property in
Pennsylvania, and the exact same alleged conduct,” noting that
Makozy had only added one additional defendant, XL. The court
then stated that the amended complaint was patently deficient,
raising no legal claims against any defendant, but because Makozy
appeared to have intended it as a supplement to his original com-
plaint, the court would construe it as such.
The district court then dismissed Makozy’s complaint as
barred by
res judicata. The court found that it was a court of com-
petent jurisdiction in the first lawsuit and that its order dismissing
Makozy’s claims as time-barred was a final judgment on the merits,
which this Court had affirmed on appeal. The court explained that
Makozy was the plaintiff and Westcor and Armour were the de-
fendants in the first lawsuit, just as they were in the case before it.
While Makozy had added XL to the suit, the court noted that “his
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6 Opinion of the Court 22-11753
only allegation against XL was that it “provided the E & O insur-
ance for errors,” which did not transform the present case into a
new lawsuit. The court found that the claims against XL could and
should have been brought in the first lawsuit because they
stemmed from the same mechanic’s lien on the Mars property and
involved the same alleged conduct by Westcor and Armour. As
such, the court dismissed the complaint with prejudice.
On April 13, 2022, Makozy then filed a motion for reconsid-
eration, arguing that the district court had “patently misunder-
stood” him and was allowing the financial abuse of a senior citizen
and that it was “amazing” that his complaint was dismissed on the
same day several discovery documents were due. The district
court denied Makozy’s motion on April 18, 2022, finding that (1)
Makozy had failed to address the applicable legal standard or artic-
ulate what the misunderstanding was or why it warranted recon-
sideration and (2) his “financial abuse” arguments appeared to refer
to arguments already presented in his complaint and response to
the motion to dismiss, which could not be raised again in a motion
for reconsideration.
Then, on May 9, 2022, Makozy filed a motion to reopen and
for recusal of the district court judge in the case, arguing that the
circumstances showed the judge was biased against him. On May
12, 2022, the district court denied the motion, finding that Makozy
had failed to cite the applicable standard or raise any ground that
would meet that standard. The court further explained that Ma-
kozy misunderstood the judicial process and power of the court
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22-11753 Opinion of the Court 7
and that it had dismissed his claims in the first lawsuit as time
barred, which precluded him from raising the same claims in the
second lawsuit under the doctrine of
res judicata.
On May 25, 2022, Makozy filed a notice of appeal, stating
that he “hereby appeal[s] the entire case.” This Court subsequently
issued jurisdictional questions to the parties concerning the parties’
citizenship and what orders or decisions Makozy’s notice of appeal
evinced an intent to appeal from. A panel of this Court entered an
order deciding that although the notice of appeal did not designate
a specific decision being challenged, it evinced an intent to appeal
from the district court’s April 5, 2022, final order of dismissal and
its denial of Makozy’s two post-judgment motions in an April 18,
2022, order and a May 13, 2022, order.
This Court then remanded to the district court for the lim-
ited purpose of determining the citizenship of the parties. Follow-
ing remand, this Court noted that it appeared to have jurisdiction
to consider this appeal but that a final determination regarding ju-
risdiction would be made by the panel to whom the appeal was
submitted on the merits. We now consider our appellate jurisdic-
tion before turning to the merits of the appeal.
II.
We must
sua sponte examine the existence of appellate ju-
risdiction and review jurisdictional issues
de novo.
United States
v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). The timely filing of
a notice of appeal in a civil case is a jurisdictional requirement, and
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8 Opinion of the Court 22-11753
we cannot entertain an appeal that is out of time.
Green v. Drug
Enf’t Admin., 606 F.3d 1296, 1301 (11th Cir. 2010);
see also Hamer
v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 20 (2017).
“[E]xcept as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c),” a notice
of appeal in a civil case must be filed with the district court clerk
“within 30 days after entry of the judgment or order appealed
from.” Fed. R. App. P. 4(a)(1)(A). Rule 4(a)(4), in turn, specifies
that if a party timely files any of the listed motions, including a mo-
tion to alter or amend the judgment under Federal Rule of Civil
Procedure 59, then “the time to file an appeal runs for all parties
from the entry of the order disposing of the last such remaining
motion.”
Federal Rule of Appellate Procedure 4(a)(7) defines entry of
judgment for purposes of appeal. If a separate document is re-
quired, judgment is entered for purposes of Appellate Rule 4(a)
when the earlier of these events occurs: (1) the judgment is set forth
on a separate document, or (2) 150 days have run from the entry of
judgment or order in the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii).
Federal Rule of Civil Procedure 58 generally requires that every
judgment must be set out in a separate document and that the clerk
must enter the judgment when the court denies all relief. Fed. R.
Civ. P. 58(a)–(b);
see Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in
these rules includes a decree and any order from which an appeal
lies. A judgment should not include recitals of pleadings, a master’s
report, or a record of prior proceedings.”). However, an order dis-
posing of a motion for relief under Federal Rule of Civil Procedure
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22-11753 Opinion of the Court 9
59 or 60 does not require a judgment to be set forth on a separate
document. Fed. R. Civ. P. 58(a)(4)–(5).
In the Advisory Committee’s note to the 2002 amendment
to Civil Rule 58—i.e., the amendment that added the 150-day pro-
vision—the Advisory Committee noted that the failure to enter
judgment on a separate document had previously meant that the
time to appeal under Appellate Rule 4 and the time to file motions
under rules such as Civil Rule 59 never began to run. Fed. R. Civ.
P. 58 advisory committee’s note to 2002 amendment. The 2002
amendments, the Advisory Committee explained, were designed
to work in conjunction with Appellate Rule 4(a) to ensure that the
time to appeal did not “linger on indefinitely” and to “maintain the
integration of the time periods” set for in Civil Rule 59, among oth-
ers.
Id. The Advisory Committee cautioned that the new defini-
tion of the entry of judgment “must be applied with common sense
to other questions that may turn on the time when judgment is
entered” and that if it “serves no purpose, or would defeat the pur-
pose of another rule, it should be disregarded.”
Id. The Advisory
Committee also explained that if no separate document is entered,
“the motion time periods set by Rules 50, 52, 54, 59, and 60 begin
to run after expiration of 150 days from entry of the judgment in
the civil docket as required by Rule 79(a).”
Id. And the Advisory
Committee specified that a companion amendment to Appellate
Rule 4(a)(7) integrated these changes with the time to appeal.
Id.
We have not addressed in a published opinion the applica-
tion of Appellate Rules 4(a)(1)(a), (a)(4), and (a)(7) where a district
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10 Opinion of the Court 22-11753
court denies relief but does not enter a separate judgment, the ap-
pellant then files a timely Civil Rule 59 motion seeking to alter or
amend the order denying all relief, and the district court denies the
Civil Rule 59 motion before the 150-day period after the dispositive
order expires. Specifically, we have not addressed whether the ap-
pellant would be required to file a notice of appeal within 30 days
after the court denied the Civil Rule 59 motion under Appellate
Rule 4(a)(4) or whether the appellant retains the full 150-day period
to appeal under Appellate Rule 4(a)(7).
In
Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167 (10th Cir.
2013), the Tenth Circuit squarely addressed the question of “when
a motion for reconsideration is filed in the absence of a separate
judgment, does the denial of that motion start the notice-of-appeal
clock, or does the appellant remain entitled to the 150-day period
for constructive entry of judgment provided by Fed R. Civ. P. 58?”
Id. at 1171 (10th Cir. 2013). In
Walters, the appellant filed a motion
to reconsider the district court’s order disposing of the case, and
the court denied the motion on August 28, 2011.
Id. The appellant,
however, did not file his notice of appeal until September 28,
2021—more than 30 days afterward.
Id. The appellee argued that
the appellant “waived the separate-document requirement when
he filed a motion to reconsider the district court’s ruling” such that
the court’s August 28 order denying that motion “triggered the
thirty-day period for filing a notice of appeal, which [the appellant]
missed.”
Id. But the Tenth Circuit held that, under such circum-
stances, “an appellant remains entitled to the 150-day period for
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22-11753 Opinion of the Court 11
constructive entry of judgment.”
Id. The Tenth Circuit found per-
suasive the Ninth Circuit’s reasoning in
ABF Capital Corp. v. Os-
ley, 414 F.3d 1061, 1064 (9th Cir. 2005) that “until judgment had
entered in one of the two ways mandated by [Civil] Rule 58—either
in a separate document or the passage of 150 days—an appellant
had no obligation to appeal the judgment.”
Id. The Tenth Circuit
also stated that “[n]othing in the rules or the commentaries sug-
gests an intent to shorten the time for appeal if a post-judgment
motion is filed.”
Id. (alteration adopted) (quoting
ABF Cap., 414
F.3d at 1065).
In
ABF Capital, the Ninth Circuit addressed an argument
that the appellant’s notices of appeal were untimely “because the
180-day timetable” caused by the district court’s failure to set out
its orders granting dismissal of the plaintiffs’ claims on separate
documents “was shortened after ABF prematurely moved to alter
or amend judgment under Civil Rule 59(e).” 414 F.3d at 1064.
There, the district court issued case-dispositive orders on April 10
and April 11, 2003, from which the appellant filed motions to alter
or amend under Civil Rule 59(e).
Id. The district court denied the
motions on May 15, 2003.
Id. However, the appellant did not file
notices of appeal until July 30, 2003.
Id. The Ninth Circuit con-
cluded that “the district court’s minute orders on ABF’s Rule 59(e)
motions did not substitute for its obligation to comply with the
simple obligation of entering the judgment on a separate docu-
ment.”
Id. at 1065 (alteration adopted) (quoting Fed. R. Civ. P. 58,
advisory committee’s note to 2002 amendment). Noting that
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12 Opinion of the Court 22-11753
“[n]othing in the 2002 amendments provides otherwise, or sug-
gests that Congress meant to require appeal of a final judgment
be-
fore entry of judgment, because an early-filed motion questioning
the announced-but-not-entered judgment had been denied,” the
Ninth Circuit held that “a premature post-judgment motion may
not accelerate the deadline for appeal before a separate judgment
has been entered.”
Id.
Here, as an initial matter, we decline to reconsider our prior
panel’s determination that Makozy’s notice of appeal evinced an
intent to appeal the April 5, 2022, final order dismissing the case,
the April 18, 2022, order denying the motion for reconsideration of
the final order, and the May 12, 2022, order denying the motion to
reopen and for recusal.
Turning to the timeliness of Makozy’s notices of appeal, the
May 25, 2022, notice of appeal was timely to challenge the May 13,
2022, order denying the motion to reopen and for recusal because
Makozy filed it within 30 days of entry of that order, and Makozy
has abandoned on appeal any challenge to the April 18, 2022, denial
of his motion for reconsideration. We also find that the notice of
appeal was timely to challenge the April 5, 2022, final order dismiss-
ing the case based on the persuasive reasoning of the Ninth and
Tenth Circuits in
ABF Capital and
Walters, respectively. Because
the court did not enter a separate judgment, Makozy’s filing of a
Civil Rule 59 motion did not cut short that time period, and he filed
the notice of appeal within 150 days of that order.
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22-11753 Opinion of the Court 13
Accordingly, we conclude that we have appellate jurisdic-
tion and now turn to the merits of the appeal.
III.
Because
res judicata determinations are pure questions of
law, we review them
de novo. Norfolk S. Corp. v. Chevron,
U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004).
Res judicata bars the parties to a prior action from relitigat-
ing the same causes of action that were, or could have been, raised
in that prior action, if that action resulted in a final judgment on
the merits.
In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.
2001).
Res judicata “generally applies not only to issues that were
litigated, but also to those that should have been but were not.”
Delta Air Lines, Inc. v. McCoy Restaurants, Inc., 708 F.2d 582,
586 (11th Cir. 1983). The bar applies where four prerequisites are
met: (1) the prior decision was rendered by a court of competent
jurisdiction; (2) there was a final judgment on the merits; (3) both
cases involve the same parties or their privies; and (4) both cases
involve the same causes of action.
Piper Aircraft, 244 F.3d at 1296.
“[D]ismissal of a complaint with prejudice satisfies the requirement
that there be a final judgment on the merits.”
Citibank, N.A. v.
Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir. 1990).
As to the third factor, we have explained that “privity” com-
prises several different types of relationships and generally applies
“when a person, although not a party, has his interests adequately
represented by someone with the same interests who is a party.”
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14 Opinion of the Court 22-11753
EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1286 (11th Cir.
2004). One such type of privity is known as “virtual representa-
tion.”
Id. “Virtual representation” is a term of art that we have
defined as applying “when the respective interests are closely
aligned
and the party to the prior litigation adequately represented
those interests.”
Id. at 1287 (quoting
Delta Air Lines, 708 F.2d at
587).
Turning to the fourth factor, “[i]n general, cases involve the
same cause of action for purposes of res judicata if the present case
‘arises out of the same nucleus of operative fact, or is based upon
the same factual predicate, as a former action.’”
Israel Disc. Bank
Ltd. v. Entin, 951 F.2d 311, 315 (11th Cir. 1992) (quoting
Citibank,
904 F.2d at 1503). “In determining whether the causes of action are
the same, a court must compare the substance of the actions, not
their form.”
Piper Aircraft, 244 F.3d at 1297 (quoting
Ragsdale v.
Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999)). “The test
for a common nucleus of operative fact is ‘whether the same facts
are involved in both cases, so that the present claim could have
been effectively litigated with the prior one.’”
Lobo v. Celebrity
Cruises, Inc., 704 F.3d 882, 893 (11th Cir. 2013) (quoting
Piper Air-
craft, 244 F.3d at 1301).
Here, the district court correctly dismissed Makozy’s action
as barred by
res judicata. First, the parties agree that the district
court was a court of competent jurisdiction in the first lawsuit. Sec-
ond, the dismissal of the first lawsuit with prejudice as barred by
the applicable statutes of limitations was a final judgment on the
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22-11753 Opinion of the Court 15
merits. Third, the three principal parties—Makozy, Westcor, and
Armour—were the same in both lawsuits, and XL, a newly added
defendant to the present complaint, was in privity with Westcor as
its errors and omissions insurance carrier. And fourth, the two
cases involve the same factual nucleus.
Accordingly, we affirm the district court’s dismissal order.1
IV.
We review for abuse of discretion a district court’s denial of
a motion to recuse.
United States v. Scrushy, 721 F.3d 1288,
1303 (11th Cir. 2013).
Under 28 U.S.C. § 455, there are two primary reasons for ju-
dicial recusal. Section 455(a) provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be ques-
tioned.”
Id. “The very purpose of § 455(a) is to promote confi-
dence in the judiciary by avoiding even the appearance of impro-
priety whenever possible.”
United States v. Patti, 337 F.3d 1317,
1321 (11th Cir. 2003) (quoting
Liljeberg v. Health Servs. Acquisi-
tion Corp., 486 U.S. 847, 865 (1988)). The standard of review for a
§ 455(a) motion “‘is whether an objective, disinterested, lay ob-
server fully informed of the facts underlying the grounds on which
1 We decline to consider the new arguments that Makozy attempts to raise for
the first time on appeal, as those issues were not decided by the district court.
See MSP Recovery Claims, Series LLC v. Metro. Gen. Ins. Co., 40 F.4th 1295,
1306 (11th Cir. 2022).
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16 Opinion of the Court 22-11753
recusal was sought would entertain a significant doubt about the
judge’s impartiality,’ and any doubts must be resolved in favor of
recusal.”
Id. (citation omitted) (first quoting
Parker v. Connors
Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988); then citing
United
States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)).
In turn, § 455(b) provides that a judge should recuse himself
when any of the specific circumstances set forth in that subsection
exist, which show the fact of partiality. § 455(b)(1)-(5). For exam-
ple, a judge should recuse himself “[w]here he has a personal bias
or prejudice concerning a party” or “[w]here in private practice he
served as [a] lawyer in the matter in controversy.”
Id. § 455(b)(1)–
(2). Recusal under this subsection is mandatory because “the po-
tential for conflicts of interest are readily apparent.”
Patti, 337 F.3d
at 1321 (quoting
Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir.
2001)).
Here, the district court did not abuse its discretion in deny-
ing Makozy’s motion to reopen and for recusal. The record does
not support Makozy’s claims that the district court judge’s impar-
tiality might reasonably have been questioned or that any special
circumstances showing partiality existed.
V.
For the foregoing reasons, we conclude we have appellate
jurisdiction and affirm the district court’s orders.
AFFIRMED.
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