Robert Alpert v. Mark Riley

Case: 10-20295 Document: 00511717326 Page: 1 Date Filed: 01/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2012
No. 10-20295 Lyle W. Cayce
Clerk
ROBERT ALPERT; ROMAN MERKER ALPERT;
DANIEL ALPERT; LINDA STANLEY,
Plaintiffs – Appellees
v.
MARK R. RILEY,
Defendant – Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3774
Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Mark R. Riley appeals the district court’s issuance
of a preliminary injunction, and requests that the injunction be “vacated” or
“modified to eliminate provisions requiring restitution or restoration to the
trusts by Riley . . . .” On December 29, 2011, the district court entered a final
judgment in which it dissolved the preliminary injunction at issue in this appeal.
The court also declined to enter a permanent injunction.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-20295 Document: 00511717326 Page: 2 Date Filed: 01/06/2012
No. 10-20295
We hold that this appeal has been mooted by the district court’s
dissolution of the preliminary injunction, as we can no longer grant Appellant’s
requested relief. See In re Blast Energy Servs., Inc., 593 F.3d 418, 423 (5th Cir.
2010) (“If an appellate court is unable to grant any remedy for an appellant, its
opinion would be merely advisory and it must dismiss the appeal as moot.”); see
also Hornbeck Offshore Servs., L.L.C. v. Salazar, 396 F. App’x 147, 147 (5th Cir.
2010) (“In order for this court to maintain appellate jurisdiction over Appellants’
appeal of the preliminary injunction, it must be able to provide the parties with
some type of effective relief.”).1
This appeal is therefore DISMISSED AS MOOT.
1
Appellant contends that his potential wrongful injunction claim is sufficient to
preserve appellate jurisdiction. The Supreme Court has explained, however, that “[a] party
injured by the issuance of an injunction later determined to be erroneous has no action for
damages in the absence of a bond.” W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 770
n.14 (1983) (emphasis added); see Phillips v. Charles Schreiner Bank, 894 F.2d 127, 131 n.6
(5th Cir. 1990) (citing W.R. Grace, 461 U.S. at 770 n.14)); see also In re UAL Corp., 412 F.3d
775, 779 (7th Cir. 2005) (same); Certified Grocers of Ill., Inc. v. Produce Union Local 703, 816
F.2d 329, 331 (7th Cir. 1987) (“[If the preliminary injunction is defunct, it is irrelevant and the
appeal from it is not justiciable. There are several potential ways around this conclusion. One
is that an injunction bond may keep an appeal alive. There was no bond in this case,
however.”) (citations omitted). As the district court in this case did not require the Appellees
to post a bond when it issued the preliminary injunction, Appellant lacks a wrongful injunction
claim.
2