United States v. Nipper

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 29 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5187
TIMOTHY LEE NIPPER, separately (D.C. No. 98-CV-526-K)
and as trustee for the Proprietor (N.D.Okla.)
Property Trust; THOMAS EUGENE
NIPPER, as trustee for the Proprietor
Property Trust and as nominee of
Timothy Lee Nipper,
Defendants-Appellants,
and
MELLON MORTGAGE COMPANY,
as mortgagee,
Defendant.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Timothy Lee Nipper and Thomas Eugene Nipper, appearing pro se, appeal
from the district court’s August 2, 2000, order which directed the sale of real
property. We dismiss the appeal as moot.
The district court granted summary judgment to the United States in its
action to recover tax assessments by executing against real property. The
property originally was owned by Timothy, who quit-claimed the property to
Thomas. Thomas then quit-claimed the property to the Proprietor Property Trust.
Following the entry of summary judgment in favor of the United States, the
Nippers filed a motion pursuant to Federal Rule of Civil Procedure 59 to alter,
amend, or vacate the judgment. The district court denied the motion and the
Nippers appealed. See United States v. Nipper , 2001 WL 109157 (10th Cir. Feb.
8, 2001) ( Nipper I ).
On August 1, 2000, the United States moved for an order of sale. The
district court granted the motion and entered an order of sale on August 2, 2000.
On September 11, 2000, the Nippers appealed the order of sale (the present
appeal, Nipper II ) and filed a motion for stay of the sale pending the appeal. The
district court conditioned the granting of a stay upon the Nippers posting a
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supersedeas bond in the amount of $208,823.55 or showing cause why a bond
need not be posted or why a modified bond might be acceptable. The Nippers
did not file a notice of appeal from that order, did not post the supersedeas bond,
and did not succeed in convincing the district court that an appeal bond should
not be required in this case. The property was sold at public auction on January
16, 2001.
In February 2001, we reversed the denial of the Nippers’ Rule 59 motion
and remanded for further proceedings in Nipper I . We concluded that summary
judgment was inappropriate because the government had not met its initial
evidentiary burden for unreported income cases.
In the present appeal ( Nipper II ), the Nippers argue that no bond was
required and that the bond requested was excessive. However, we do not reach
these issues because this appeal is moot. “The constitutional mootness doctrine
is grounded in Article III’s requirement that federal courts only decide ‘actual,
ongoing cases or controversies.’” Phelps v. Hamilton , 122 F.3d 885, 891 (10th
Cir. 1997) (quoting Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990)).
“‘Generally, an appeal should be dismissed as moot when events occur that
prevent the appellate court from granting any effective relief.’” Phelps , 122 F.3d
at 891 (quoting Thournir v. Buchanan , 710 F.2d 1461, 1463 (10th Cir. 1983)).
“The central question in determining whether a case has become moot is whether
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‘the issues presented are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’” Phelps , 122 F.3d at 891 (quoting Powell v.
McCormack , 395 U.S. 486, 496 (1969)).
Here, even if we agreed that the district court abused its discretion in
ordering the Nippers to post a bond in order to obtain a stay, there is no relief to
be granted to the Nippers. The property has been sold. See Holloway v. United
States , 789 F.2d 1372, 1373-74 (9th Cir. 1986) (dismissing appeal as moot
because property had been sold). The purchaser is not a party to this action.
This pleading deficiency further inhibits our ability to grant the Nippers the
ultimate relief they seek – the return of their property. See id. at 1374. Further,
the Nippers do not argue on appeal that the district court abused its discretion in
setting the terms and conditions of sale in its order of sale; they argue instead
that the court improperly conditioned the grant of a stay upon their posting of a
supersedeas bond. The Nippers’ failure to file a notice of appeal from the district
court’s order to post the supersedeas bond deprives us of jurisdiction over issues
pertaining to the bond. Fed. R. App. P. 3(c). In addition, as the sale has
occurred, any challenge to the court’s order requiring the posting of a bond is
moot. See Horstkoetter v. Dep’t of Public Safety , 159 F.3d 1265, 1276-77 (10th
Cir. 1998).
We DISMISS this appeal as moot.
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Entered for the Court
Mary Beck Briscoe
Circuit Judge
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