* 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this opinion should not be published and is not precedent except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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

(USDC No. SA-95-CV-266)

- - - - - - - - - -

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
2

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
3

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.