Diana Louise Houck v. Lifestore Bank; Grid Financial Services, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1280
DIANA LOUISE HOUCK,
Plaintiff - Appellant,
v.
LIFESTORE BANK; GRID FINANCIAL SERVICES, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. David Shepardson Cayer, Magistrate Judge. (5:13-cv-00066-DSC)
Argued: May 4, 2022 Decided: July 19, 2022
Before NIEMEYER and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.
Appeal dismissed by published opinion. Judge Niemeyer wrote the opinion, in which
Judge Diaz and Senior Judge Floyd joined.
ARGUED: M. Shane Perry, COLLUM & PERRY, Mooresville, North Carolina, for
Appellant. Ryan M. Gaylord, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellees. ON BRIEF: Alan M. Ruley, BELL, DAVIS & PITT, PA,
Winston-Salem, North Carolina, for Appellee LifeStore Bank. Robert A. Mays, MAYS
JOHNSON LAW FIRM, Asheville, North Carolina, for Appellee Grid Financial Services,
Inc.

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NIEMEYER, Circuit Judge:
Diana Houck sued three defendants under 11 U.S.C. § 362 for violating a
bankruptcy stay by their participation in the foreclosure and sale of her home while her
bankruptcy petition was pending. The district court dismissed the claims against the first
defendant but not the other two, and Houck appealed the dismissal order, even though it
was interlocutory. While her appeal was pending before us, however, the district court
dismissed the claims against the other two defendants and entered a final judgment in the
case. That final judgment saved her appeal from dismissal in our court under the doctrine
of “cumulative finality,” as the district court had at that point adjudicated all claims as to
all parties in the case.
We reviewed the order dismissing the first defendant and remanded the case for
further proceedings against that defendant. Because Houck never appealed the dismissal
of the other two defendants, however, we never had those defendants before us.
After a successful trial against the first defendant — resulting in a judgment of over
$260,000 — Houck appealed the final judgment that she obtained against that defendant
in order to challenge the earlier dismissals of the other two defendants.
We conclude that we lack jurisdiction over Houck’s appeal of the final judgment in
favor of the other two defendants, as it was untimely. See 28 U.S.C. § 2107; Fed. R. App.
P. 4(a); Bowles v. Russell, 551 U.S. 205, 206 (2007). And in reaching this conclusion, we
reject Houck’s argument that we vacated that judgment in our decision reviewing the order
dismissing the first defendant. Accordingly, we dismiss Houck’s appeal.

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I
After Diana Houck received homestead property in Ashe County, North Carolina,
from her father, she obtained financing from LifeStore Bank, F.S.A., to remodel the
farmhouse on the property. But shortly thereafter, she lost her job and asked LifeStore for
a loan modification. LifeStore referred her to Grid Financial Services, Inc., a debt
collection agency, which, after close to two years, denied her request because she remained
unemployed. As a consequence, Houck defaulted on her loan, and Substitute Trustee
Services, Inc., the “Substitute Trustee” on the loan documents, initiated foreclosure
proceedings. To obtain a stay of those proceedings, Houck filed two separate Chapter 13
bankruptcy petitions, and while the second petition was pending, the Substitute Trustee
sold her farm, forcing her to vacate the homestead.
Houck commenced this action against LifeStore, Grid Financial, and the Substitute
Trustee under 11 U.S.C. § 362(k) for violation of the automatic stay, as well as related state
law.
The Substitute Trustee filed a motion to dismiss the claims against it, which the
district court granted by order dated October 1, 2013. Houck filed an appeal from that
order, which was interlocutory, as the district court still had before it Houck’s claims
against LifeStore and Grid Financial. While that appeal was pending, however, the district
court dismissed all the remaining claims against LifeStore and Grid Financial, resulting in
all three defendants having been dismissed from the action. On February 20, 2014, the
court accordingly entered a final judgment in the case. Houck, however, never filed an

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appeal from the court’s orders dismissing her claims against LifeStore and Grid Financial
nor from the February 20, 2014 final judgment that followed.
While we recognized that Houck’s appeal of the October 1, 2013 order dismissing
the Substitute Trustee was interlocutory when filed, we concluded that it became one from
a final judgment under the doctrine of cumulative finality when the remaining defendants
were dismissed from the case by the district court. See Houck v. Substitute Tr. Servs., Inc.,
791 F.3d 473, 478–79 (4th Cir. 2015). Accordingly, we concluded that we had jurisdiction
to review the district court’s order dismissing Houck’s claims against the Substitute
Trustee. Id. at 479. And on the merits, we held that “Houck stated a plausible claim for
relief [against the Substitute Trustee] under § 362(k).” Id. at 486. Our mandate read
accordingly:
The judgment of the district court is vacated; the court’s October 1, 2013
order dismissing Houck’s § 362(k) claim against the Substitute Trustee is
reversed; and the case is remanded for further proceedings.
Id. at 487.
On remand, the case was tried against the Substitute Trustee in the bankruptcy court,
and following a bench trial, the court awarded Houck $260,175.27 in damages and
attorneys fees for the violation of the automatic stay required by the Bankruptcy Code. It
entered a final judgment on October 6, 2020. Though the Substitute Trustee appealed the
bankruptcy court’s judgment to the district court on October 20, 2020, shortly thereafter it
filed a “Motion for Voluntary Dismissal of Notice of Appeal” upon reaching a settlement
with Houck for satisfaction of the judgment. The bankruptcy court approved the voluntary

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dismissal by order dated December 3, 2020, and on the same date, the clerk of the court
entered a final judgment.
Three months later, on March 5, 2021, Houck filed a “Motion to Reopen Case” in
the district court in order to seek review of that court’s 2014 orders dismissing her claims
against LifeStore and Grid Financial, and the district court granted the motion. But in its
order dated March 8, 2021, the court simply adopted in full the bankruptcy court’s findings
of fact and legal reasoning — which pertained only to the Substitute Trustee — and entered
a judgment for Houck in the amount of $260,175.27 in damages and attorneys fees,
identical to the bankruptcy court’s earlier judgment of October 6, 2020.
From the district court’s judgment in favor of Houck against the Substitute Trustee,
Houck nonetheless filed this appeal to seek review of the 2014 orders — entered over seven
years before — that dismissed all of her claims against LifeStore and Grid Financial.
LifeStore and Grid Financial contend, among other things, that the time for appealing the
2014 orders and the February 20, 2014 judgment that followed has long passed and that we
do not now have jurisdiction to review them.
II
Stated broadly, Houck sued three defendants — the Substitute Trustee, LifeStore,
and Grid Financial — and all three defendants were dismissed by the district court’s
various orders culminating in the February 20, 2014 final judgment. Houck appealed the
first order dismissing the Substitute Trustee, but she never appealed the orders dismissing
LifeStore and Grid Financial nor the final judgment of February 20, 2014.

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Now, more than seven years later, Houck asks us to review the February 20, 2014
final judgment in favor of LifeStore and Grid Financial through her appeal of the final
judgment entered against the Substitute Trustee in 2021, even though she had never
appealed the former.
The most obvious obstacle to Houck’s appeal of the February 2014 judgment is its
timing. Specifically, we lack jurisdiction because Houck failed to appeal the February
2014 judgment within 30 days of its entry. Section 2107(a) of Title 28 provides that a party
seeking appellate review of a judgment must file its notice of appeal within 30 days of the
judgment’s entry, subject to certain exceptions not relevant here. See also Fed. R. App. P.
4(a)(1)(A) (same). And the Supreme Court has held that this time requirement is
“jurisdictional in nature.” Bowles v. Russell, 551 U.S. 205, 206 (2007). While Houck did
file an appeal within 30 days of the October 1, 2013 order dismissing the Substitute Trustee,
which later became an appealable judgment under the cumulative finality doctrine, she did
not similarly file a timely appeal from the February 20, 2014 judgment dismissing
LifeStore and Grid Financial. Thus, for that reason, we lack jurisdiction to review Houck’s
claims against LifeStore and Grid Financial.
Houck attempts to evade her appeal’s lack of timeliness by arguing that, in ruling
on her prior appeal, we vacated the 2014 final judgment when we said, “The judgment of
the district court is vacated.” Houck, 791 F.3d at 487. She argues therefore that “there was
no final judgment entered in this case as to all claims for all parties” until the district court
again entered judgment on March 8, 2021. Accordingly, she reasons, she can, with this

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appeal, assert arguments challenging the 2014 orders dismissing LifeStore and Grid
Financial. This argument, however, fails for at least two reasons.
First, we need to point out that while our mandate in the prior appeal did indeed
vacate “[t]he judgment of the district court,” it was referring to the only judgment appealed
and before us — the October 1, 2013 order that was rendered a judgment under the
cumulative finality doctrine. See Fed. R. Civ. P. 54(a) (defining the term “judgment” as
including “any order from which an appeal lies”). The mandate made this clear, stating in
full:
The judgment of the district court is vacated; the court’s October 1, 2013
order dismissing Houck’s § 362(k) claim against the Substitute Trustee is
reversed; and the case is remanded for further proceedings.
Houck, 791 F.3d at 487. And consistent with this limitation, only the claim against the
Substitute Trustee was tried on remand, and the final judgment entered on March 8, 2021,
was only against the Substitute Trustee.
But more fundamentally, we rely on the fact that we did not, in the prior appeal,
have jurisdiction to review the judgment dismissing LifeStore and Grid Financial. That
appeal was taken from only the October 1, 2013 order dismissing the Substitute Trustee,
which became a judgment on February 20, 2014 under the cumulative finality doctrine
when the claims against LifeStore and Grid Financial were dismissed in the district court.
Houck could have brought LifeStore and Grid Financial before us by appealing the
February 20, 2014 judgment within 30 days of its entry, but she did not do so. As a result,
we only adjudicated the claims against the Substitute Trustee, never addressing errors that
Houck might have wanted to assert as to the other dismissed defendants. Because the

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February 2014 judgment as to LifeStore and Grid Financial was not before us, we had no
jurisdiction to vacate it. See Jackson v. Lightsey, 775 F.3d 170, 176–77 (4th Cir. 2014)
(holding that we had jurisdiction over an appeal of a July 2013 order dismissing prison
doctors from the case but not over a July 2012 order dismissing prison medical staff
because (1) the 2013 order was the express subject of plaintiff’s notice of appeal and (2)
the medical staff had been dismissed and were not represented in the appellate
proceedings).
While not briefed by the parties, we also point out that serious additional barriers to
Houck’s current appeal appear to exist. First, Houck reached a settlement agreement with
the Substitute Trustee in late 2020, ending her claims against that party. Yet, in seeking to
reopen the case, she gave no indication that she had repudiated the settlement agreement.
Thus, her effort to reopen a case that had been settled should likely have been rejected. See
Fairfax Countywide Citizens Ass'n v. Cnty. of Fairfax, Va., 571 F.2d 1299, 1302–03 (4th
Cir. 1978) (holding that “upon repudiation of a settlement agreement which had terminated
litigation pending before it, a district court has the authority under Rule 60(b)(6) to vacate
its prior dismissal order and restore the case to its docket” (emphasis added) (cleaned up)).
And second, because the March 8, 2021 judgment was in her favor, Houck can hardly now
seek to appeal it without showing that she was somehow “aggrieved” by the judgment. See
HCA Health Servs. of Va. v. Metro. Life Ins. Co., 957 F.2d 120, 123 (4th Cir. 1992)
(recognizing that “[a] party must be ‘aggrieved’ by a district court judgment or order in
order to have standing to appeal” and that “[g]enerally, a prevailing party is not aggrieved

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by the judgment” (citation omitted)). But we need not rely on these additional deficiencies,
as we dismiss this appeal under § 2107(a) and Lightsey.
To be sure, a degree of complexity is added by our prior application of the doctrine
of cumulative finality, which allowed us to review what was originally an interlocutory
order — the October 1, 2013 order dismissing the Substitute Trustee — based on the
subsequent dismissal of the remaining defendants in the district court with the February
2014 judgment.
The cumulative finality doctrine allows us to consider an otherwise premature
appeal when (1) “all joint claims or all multiple parties are dismissed prior to the
consideration of the appeal,” Equip. Fin. Grp., Inc. v. Traverse Comput. Brokers, 973 F.2d
345, 347 (4th Cir. 1992); and (2) “the appellant appeals from an order that the district court
could have certified for immediate appeal under Rule 54(b),” Houck, 791 F.3d at 479. The
doctrine therefore “allows an appeal from a non-final order to be ‘saved’ by subsequent
events that establish finality.” In re Rimsat, Ltd., 212 F.3d 1039, 1044 (7th Cir. 2000).
That is precisely what happened in this case. When Houck appealed the October 1,
2013 order dismissing her claims against the Substitute Trustee, her appeal was premature
“because LifeStore and Grid Financial were not parties to [the Substitute Trustee’s motion
to dismiss] and remained defendants in the action.” Houck, 791 F.3d at 478. But the
February 20, 2014 judgment “saved” Houck’s once-premature appeal because the October
1, 2013 order became a final judgment when LifeStore and Grid Financial were removed
from the case and thus all claims as to all parties were resolved. Id. at 478–79. Thus, the

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February 2014 judgment established the cumulative finality needed for Houck to appeal
the court’s dismissal of her claims against the Substitute Trustee.
Our application of the cumulative finality doctrine, however, did not somehow open
our appellate review to consideration of the judgment dismissing LifeStore and Grid
Financial. Moreover, even if it did, we still would have lacked jurisdiction because those
two other defendants were not before us. See, e.g., Sessler v. Allied Towing Corp., 538 F.2d
630, 633 (4th Cir. 1976) (holding on due process grounds that the court was unable to
decide an issue pertaining to a company that was “not a party to [the] appeal”); Speers Sand
& Clay Works v. Am. Tr. Co., 37 F.2d 572, 573 (4th Cir. 1930) (“[I]t is clear that we have
no power to review the decision of the court below in so far as it adjudicates [the] rights”
of persons not made “party to the proceedings on appeal”).
Ultimately, Houck cannot have it both ways. Having benefited from our
determination that the February 2014 judgment was a final judgment that triggered
cumulative finality because LifeStore and Grid Financial were no longer in the case,
allowing her to appeal the October 1, 2013 order, she cannot now — more than seven years
later — retroactively resurrect her claims against LifeStore and Grid Financial. The fact
that the February 2014 judgment was a final judgment sufficient to grant cumulative
finality means that Houck’s appeal of that judgment was subject to the time requirements
of § 2107(a), which she failed to satisfy.
* * *
For the reasons given, we dismiss Houck’s appeal for lack of jurisdiction.
DISMISSED

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