Cluck v. Osherow ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50797
(Summary Calendar)
ELWOOD CLUCK; KRISTINE A. CLUCK;
FIRST CAPITAL MORTGAGE COMPANY,
INCORPORATED,
Plaintiffs-Appellants,
versus
RANDOLPH N. OSHEROW, Trustee;
THOMAS WILLIAM MCKENZIE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(USDC No. SA-95-CV-266)
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June 21, 1996
Before WIENER, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:*
Elwood and Kristine Cluck appeal from the Rule 12(b) dismissal
of their “independent action in equity.” The Clucks contend, for
the first time on appeal, that Judge Garcia should have recused
himself in this matter, pursuant to 28 U.S.C. § 455(a) & (b)(1), in
light of the judge’s sua sponte recusal in a criminal action only
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
days after the instant suit was filed. Assuming this issue is
reviewable, Judge Garcia’s failure to recuse himself from this
proceeding did not constitute error, plain or otherwise. See
United States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989). The
Clucks’ allegations that an earlier judgment, now final, was
obtained by fraud were raised in a previous proceeding before this
court and rejected. The issue is, thus, precluded by the doctrine
of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 443 (1970);
McDuffie v. Estelle, 935 F.2d 682, 685 (5th Cir. 1991). Although
the court may not sanction parties pursuant to 28 U.S.C. § 1927,
the district court properly imposed sanctions pursuant to its
inherent powers. Browning v. Kramer, 931 F.2d 340, 344 (5th Cir.
1991) (court may not sanction parties under § 1927); Hanchey v.
Energas Co., 925 F.2d 96, 97 (5th Cir. 1990) (appellate court may
affirm district court's decision on alternative grounds); Boland
Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1005 (5th Cir.
1995)(recognizing federal court’s inherent power to sanction
parties).
Osherow requests that this court sanction the Clucks pursuant
to Fed. R. App. P. 38 for unwisely and imprudently pursuing an
appeal of the district court’s dismissal. We previously warned the
Clucks that any further frivolous appeals in this court would
result in the imposition of sanctions. Cluck v. Osherow, Nos. 95-
50611, 50613, & 50614, slip op. at 3 (5th Cir. June 7, 1995)
(unpublished). The instant appeal is frivolous. The result is
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obvious, and the arguments of error are wholly without merit.
Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988); see also
Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987) (a frivolous
appeal is one in which the claim advanced is unreasonable or is not
brought with a reasonably good faith belief that it is justified).
Given the prior sanction warning and the Clucks’ clear inclination
to pursue additional frivolous actions, we impose sanctions in the
amount of the appellees’ costs and attorneys’ fees incurred during
this appeal. Accordingly, the appellees are directed to submit to
this court their application for costs and attorneys’ fees incurred
during this appeal, together with supporting documents, prior to
the issuance of the mandate in this case. See Fed. R. App. P. 41.
The judgment of the district court is AFFIRMED. SANCTIONS
IMPOSED.
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