James Stewart v. First American Title Insurance Company

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 11, 2023*
Decided September 12, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-3105
JAMES STEWART,
Plaintiff-Appellant,
v.
FIRST AMERICAN TITLE INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 18-cv-7584
Mary M. Rowland,
Judge.
O R D E R
James Stewart sued his title insurance company, alleging consumer fraud and
breach of contract. The district court dismissed his complaint in early 2021 for failure to
state a claim. A year later, after the court had already denied a motion to reconsider,
Stewart filed the series of post-judgment motions that are the subject of this appeal.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Because the district court did not abuse its discretion in declining Stewart’s requests to
reopen the case, we affirm the denial of those motions.
Stewart’s claims center on the two times he bought title insurance from First
American Title Insurance Company. He first did so in 2007 when he initially purchased
his home. The bank financing that purchase sold Stewart’s note to the Federal Home
Loan Mortgage Corporation (Freddie Mac) and then collapsed the following year. Most
of the bank’s assets were sold to JP Morgan Chase Bank. Stewart again bought title
insurance from First American in 2011, when according to him, Chase deceived him
into refinancing so it could obtain a clear security interest in his home because
ownership of his original note had become murky between the collapse of his bank and
Freddie Mac’s conservatorship. Stewart made mortgage payments to Chase for several
years, but eventually stopped. After unsuccessfully attempting to collect the payments,
Chase began foreclosure proceedings. Those proceedings apparently did not result in
Stewart losing title in, or possession of his home.
In 2018, Stewart filed this suit against several defendants for their roles in the
2011 refinancing and the foreclosure proceedings. In his operative third amended
complaint, Stewart attempted to assert two claims against First American. First, he
alleged that First American breached its contract when it denied a title-insurance claim
in 2019. The contract insured against “loss or damage” resulting from clouds on title.
Stewart had purchased the home from an estate, but later learned that the deceased had
placed the home in trust before he died, meaning that the estate had not legally owned
it, as First American had mistakenly determined in its title search. Second, he alleged
that First American had deceived him into purchasing title insurance that he did not
need for his second refinancing, in violation of the Illinois Consumer Fraud and
Deceptive Practices Act, 815 ILCS 505/10a, by failing to disclose that Freddie Mac
(rather than Chase) owned his original note.
First American moved to dismiss both counts for failure to state a claim, see F ED.
R. C IV. P. 12(b)(6), and the district court granted the motion in July 2021. Regarding the
breach of contract, the court concluded that Stewart had not adequately pleaded any
loss or damage from the potential cloud on his title: He had not alleged that the trust or
its beneficiaries had asserted ownership over his home, so any loss or damage resulting
from the mistaken title search was speculative. The court also determined that Stewart’s
consumer-fraud claim was barred by the three-year statute of limitations because he
had purchased the insurance in 2011 and did not sue until 2018. Stewart did not appeal.

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Instead, he timely moved for reconsideration, see F ED R. C IV. P. 59(e), but the
court denied the motion in February 2022, rejecting Stewart’s breach-of-contract theory
again. He also argued that the court had erred in deeming his consumer-fraud claim
untimely, but the court concluded that, in any event, he had failed to state a claim
because he had not plausibly alleged, as required by the statute, that First American
intended for him to rely on any representation of the note’s ownership or that any
misrepresentation caused him economic injury, and the court was not inclined to give
him another attempt to amend his complaint. Again, Stewart did not appeal.
He instead filed four identical post-judgment motions and tendered a proposed
fourth amended complaint. Stewart now contended that the contract did not define
“loss or damage,” so a jury should decide whether those ambiguous terms included his
situation. He otherwise argued that he should have received an opportunity to amend
his consumer-fraud claim because he was not made aware of the other deficiencies until
the court ruled on his motion to reconsider.
In October 2022, the court denied these motions too, concluding that Stewart
could not raise his argument concerning the supposed ambiguity of “loss or damage”
for the first time in a post-judgment motion, and further amendments would be futile
because the proposed fourth amended complaint still failed to plead any injury for his
consumer-fraud claim. Within thirty days of this order, Stewart moved for an extension
of time to file a notice of appeal. The district court granted the motion, and Stewart filed
his notice of appeal before the extended deadline.
A panel of this court previously concluded that our jurisdiction over this appeal
is limited to the October 2022 order denying Stewart’s four identical post-judgment
motions. Stewart nominally agrees with this conclusion in his brief, but First American
asks us to dismiss the entire appeal for lack of jurisdiction. It argues that the district
court had no authority to extend the time to appeal because Stewart moved for the
extension more than 30 days after the judgment became final in February 2022.
First American’s argument misunderstands the posture of the case. It is correct
that a district court may grant an extension of time to file a notice of appeal only “upon
motion filed not later than 30 days after the expiration of the time otherwise set for
bringing appeal.” 28 U.S.C. § 2107(c); see also F ED. R. A PP . P. 4(a)(5)(A). But the time to
appeal is not always calculated from the judgment; rather, it is counted from the
“judgment, order or decree” that is subject to appeal. 28 U.S.C. § 2107(a) (emphasis
added); accord F ED. R. A PP . P. 4(a)(1)(A) (“judgment or order”). At this point Stewart

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purports to be appealing not the judgment, but only the order denying his post-
judgment motions, which were substantively motions under Rule 60(b) of the Federal
Rules of Civil Procedure because they were filed more than 28 days after judgment was
entered. See Banks v. Chi. Bd. of Educ., 750 F.3d 663, 666–67 (7th Cir. 2014). The district
court recognized that the denial of these Rule 60(b) motions was a final appealable
order separate from the judgment, see Prince v. Stewart, 580 F.3d 571, 573 (7th Cir. 2009),
and granted Stewart an extension within 30 days of its entry of the order, and he then
complied with its deadline. Like the prior panel, then, we conclude we have jurisdiction
to review the October 2022 order, even if we lack jurisdiction over the underlying
judgment because Stewart’s successive post-judgment motions did not suspend its
finality. See York Grp., Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399, 401 (7th Cir. 2011).
Still, despite acknowledging this limit on our jurisdiction, Stewart asks us to
review the initial dismissal de novo. A belated motion for relief from the judgment is
not a substitute for a timely appeal, and errors of law or fact do not generally warrant,
let alone require, that a district court grant relief under Rule 60(b). Banks, 750 F.3d
at 667. So, although we would have reviewed the original dismissal de novo, had
Stewart appealed then, we review the denial of the post-judgment motions now only for
an abuse of discretion. See Rock Hemp Corp. v. Dunn, 51 F.4th 693, 705 (7th Cir. 2022).
We see no abuse of discretion here. Regarding the appealed order, Stewart
disputes the district court’s conclusion that it was too late to raise his argument
concerning the ambiguity of “loss or damage.” But a post-judgment motion is not a
vehicle for raising new arguments that were available before judgment. See Word Seed
Church v. Village of Homewood, 43 F.4th 688, 691 (7th Cir. 2022). Stewart made no mention
of this supposed ambiguity in his response to the motion to dismiss, and the district
court was not obligated to let him raise the issue for the first time after judgment.
With respect to his consumer-fraud claim, Stewart almost exclusively challenges
the district court’s initial dismissal order. To the extent he addresses the denial of his
post-judgment motions, we understand him to argue that the district court erred in
maintaining its previous decision to deny him an opportunity to amend after the
judgment. An asserted error of law like this can be a basis for relief under Rule 60(b)(1),
see Kemp v. United States, 142 S. Ct. 1856, 1861–62 (2022), but it would not compel relief,
see Banks, 750 F.3d at 667. This is an argument that could have been raised on an appeal
from the judgment, and the district court did not abuse its wide discretion in rejecting
this attempt to circumvent appellate deadlines. See Gleash v. Yuswak, 308 F.3d 758, 761
(7th Cir. 2002). In any event, the link Stewart is trying to draw between the

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misrepresented ownership of his original note and the title insurance he purchased for
his refinancing remains tenuous even now. The court reasonably concluded that further
amendments would not help Stewart state a claim upon which relief could be granted.
AFFIRMED

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