United States v. Oscar Munoz & Donaciana Munoz, 746 F.2d 1389 (9th Cir. 1984). · Go Syfert
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United States v. Oscar Munoz & Donaciana Munoz, 746 F.2d 1389 (9th Cir. 1984). Cases Citing This Book View Copy Cite
27 citation events (9 in the last 25 years) across 5 distinct courts.
Strongest positive: Florencio Harper, Plaintiff-Counter Defendant-Appellee/Cross-Appellant v. Won Sun P. Min, Pacific K&C Corporation, Defendants-Counterclaimants-Appellants/Cross-Appellees, and Zhong Ye, Inc. (Guam), | Won Sun P. Min and Pacific K&C Corporation, Third Party Plaintiffs-Appellants/Cross-Appellees v. Zhong Ye, Inc. (Guam), Third Party Defendant-Appellee/Cross-Appellee (guam, 2021-09-24)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Florencio Harper, Plaintiff-Counter Defendant-Appellee/Cross-Appellant v. Won Sun P. Min, Pacific K&C Corporation, Defendants-Counterclaimants-Appellants/Cross-Appellees, and Zhong Ye, Inc. (Guam), | Won Sun P. Min and Pacific K&C Corporation, Third Party Plaintiffs-Appellants/Cross-Appellees v. Zhong Ye, Inc. (Guam), Third Party Defendant-Appellee/Cross-Appellee
Guam · 2021 · confidence medium
While the third exception could permit this court to proceed, we reserve our exercise of discretion “for extraordinary circumstances where review is necessary to address a miscarriage of justice or clarify significant issues of law.” Id. ¶ 82 (citing United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir. 1984)).
discussed Cited as authority (rule) Securities & Exchange Commission v. Bauer
E.D. Wis. · 2014 · confidence medium
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011) (explaining that a theory that is intentionally relinquished or abandoned is waived and will not be considered whereas a theory that simply wasn’t raised is forfeited); Image Technical Service, Inc. v. Eastman Kodak, 903 F.2d 612 , 615 n. 1 (9th Cir.1990) (holding that plaintiffs failure to raise an issue in opposition to a defendant’s motion for summary judgment waived the issue), aff'd, 504 U.S. 451 , 112 S.Ct. 2072 , 119 L.Ed.2d 265 (1992); U.S. v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984) (refusing to consider a tor…
discussed Cited as authority (rule) Cleveland Scott v. Leonard Cardoza
9th Cir. · 1992 · confidence medium
Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4 ** The Honorable John Minor Wisdom, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation *** This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3 1 See Fed.R.Civ.P. 61 2 See Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) 3 See Bounds v. Smith, 430 U.S. 817, 830-31 (1977); United States v. Wilson, 690 F.2d 1267, 1272 (9th Cir.1982), cert. denied 464 U.S. 867 (1983) 4 See United States v. Munoz, 746 F.2d 1389, 1390 (9th …
discussed Cited as authority (rule) Fuller v. Jewelry
9th Cir. · 1991 · confidence medium
See Image Technical Service, Inc. v. Eastman Kodak, 903 F.2d 612 , 615 n. 1 (9th Cir.1990) (holding that plaintiff's failure to raise an issue in opposition to a defendant's motion for summary judgment waived the issue), cert. granted, --- U.S. ----, 111 S.Ct. 2823 , 115 L.Ed.2d 994 (1991); United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984) (refusing to consider a tort theory not raised below in a contract action).
discussed Cited as authority (rule) Fuller v. M.G. Jewelry
9th Cir. · 1991 · confidence medium
See Image Technical Service, Inc. v. Eastman Kodak, 903 F.2d 612 , 615 n. 1 (9th Cir.1990) (holding that plaintiff's failure to raise an issue in opposition to a defendant’s motion for summary judgment waived the issue), cert. granted, — U.S. -, 111 S.Ct. 2823 , 115 L.Ed.2d 994 (1991); United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984) (refusing to consider a tort theory not raised below in a contract action).
discussed Cited as authority (rule) Alaska Airlines, Inc. v. United Airlines, Inc. (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
See Image Technical Service, Inc. v. Eastman Kodak, 903 F.2d 612 , 615 n. 1 (9th Cir.1990) (holding that plaintiffs failure to raise an issue in opposition to a defendant’s motion for summary judgment waived the issue), ce rt. granted, — U.S.-, 111 S.Ct. 2823 , 115 L.Ed.2d 994 (1991); Munoz, 746 F.2d at 1390 (refusing to consider a tort theory not raised in contract action below).
discussed Cited as authority (rule) Alaska Airlines, Inc. Midway Airlines Muse Air Corporation v. United Airlines, Inc., Alaska Airlines, Inc, and Northwest Airlines, Inc. v. United Airlines, Inc., and American Airlines, Inc. (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
See Image Technical Service, Inc. v. Eastman Kodak, 903 F.2d 612 , 615 n. 1 (9th Cir.1990) (holding that plaintiff's failure to raise an issue in opposition to a defendant's motion for summary judgment waived the issue), cert. granted, --- U.S. ----, 111 S.Ct. 2823 , 115 L.Ed.2d 994 (1991); Munoz, 746 F.2d at 1390 (refusing to consider a tort theory not raised in contract action below).
discussed Cited as authority (rule) Cunha v. Ward Foods, Inc.
9th Cir. · 1986 · confidence medium
United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir. 1984) (court refused to consider a tort theory on appeal when appellants only presented a contract theory to the district court).
cited Cited as authority (rule) Cunha v. Ward Foods, Inc.
9th Cir. · 1986 · confidence medium
United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984) (court refused to consider a tort theory on appeal when appellants only presented a contract theory to the district court).
cited Cited "see" John D. Gardner v. Nelson E. Hunt Andrew Toynbee G. Joyce McWhirter Luann Buss
9th Cir. · 1996 · signal: see · confidence high
See United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984)
cited Cited "see" United States v. Terry L. Ramberg
9th Cir. · 1996 · signal: see · confidence high
See United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984).
cited Cited "see" Arthur E. Maurice v. Commissioner of Internal Revenue
9th Cir. · 1996 · signal: see · confidence high
See United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984) 2 Maurice's request for judicial notice and motion for sanctions are denied
cited Cited "see" Billy Case v. United States Internal Revenue Service
9th Cir. · 1996 · signal: see · confidence high
See U.S. v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984).
cited Cited "see" Billy Worth Fausset v. Franklin Masters
9th Cir. · 1995 · signal: see · confidence high
See United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984)
cited Cited "see" Ronald Wayne Strifler v. Behavioral Systems Southwest, Inc.
9th Cir. · 1995 · signal: see · confidence high
See United States v. Munoz, 746 F.2d 1389, 1390 (9th Cir.1984)
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Oscar MUNOZ and Donaciana Munoz, Defendants-Appellants
82-3628, 82-3656.
Court of Appeals for the Ninth Circuit.
Nov 9, 1984.
746 F.2d 1389
Robert S. Linnell, Asst. U.S. Atty., Yakima, Wash., Marsha Beck, Small Business Adm., Seattle, Wash., for plaintiff-appellee., Richard C. Smith, Smith, Scott & Mazzola, Yakima, Wash., for defendants-appellants.
Wright, Sneed, Alar-Con.
Cited by 17 opinions  |  Published
EUGENE A. WRIGHT, Circuit Judge:

Oscar and Donaciana Munoz appeal from a judgment denying their claim against the United States for damages allegedly caused by the government’s negligent inspection of construction that was financed through a Small Business Administration (SBA) loan.

FACTS

Appellants applied for and received a $70,000 loan from the SBA for the purpose of building a larger bakery and equipping it. The loan conditions included requirements that plans and specifications be approved by the SBA, and that inspection of the construction would be performed as the SBA determined necessary. The SBA inspections were negligently performed and inadequate, and did not reveal the fact that[*1390] the building was negligently and defectively constructed.

Appellants sued the SBA and other defendants for damages due to the faulty construction. This court affirmed the dismissal of the tort claim against the SBA because appellants had failed to file an administrative claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. Munoz v. Small Business Administration, 644 F.2d 1361, 1363 n. 2 (9th Cir.1981). We remanded the contract claim against the SBA. Id. at 1366.

The United States subsequently sued appellants for default on the loan. The district court consolidated that action with the remanded contract suit.

The district court gave judgment for the United States for default on the loan. It denied appellants’ cross-claim because the United States had no contractual duty to inspect the construction.

ANALYSIS

Although the appellants pleaded only a contract cause of action below, they appeal that court’s decision based only on a theory of recoupment in tort. Even when the district judge suggested that the FTCA statute of limitations did not prevent recoupment in tort against the government, appellants’ counsel insisted that he was proceeding only on a contract theory.

We reject appellants’ argument that the district court should have granted relief in tort sua sponte. Appellants’ reliance on Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66, 99 S.Ct. 383, 387-388, 58 L.Ed.2d 292 (1978) and Federal Rule of Civil Procedure 54(c) is ill-founded. These involve the obligation of the court to grant the appropriate relief or remedy even when it is not properly pleaded. Here, appellants failed to plead the proper substantive grounds for relief.

The general rule of this circuit is that the district court will not be reversed on a contention not presented to it, absent exceptional circumstances, significant questions of general impact, or where injustice might otherwise result. Krause v. Sacramento Inn, 479 F.2d 988, 989 (9th Cir.1973) (dictum); Frommhagen v. Klein, 456 F.2d 1391, 1395 (9th Cir.1972).

Here, there are no exceptional circumstances justifying rejection of the general rule and the court’s decision will affect only appellants. A failure to hear the tort claim will not cause injustice. There is no justification for appellants’ failure to plead the recoupment defense before the district court. A consideration of whether appellants may recover in recoupment would require another remand. This waste of judicial resources is unjustified.

AFFIRMED.