The Behans make two arguments regarding the Turnover Order:
(1) Weslease's requested turnover relief is barred by res judicata because its two prior turnover applications were denied; and (2) the property ordered turned over is not subject to turnover under Texas law. The Behans argue that the Enforcement Orders are improper because they exceed the authority granted to the district court under Texas law. Weslease disagrees. Weslease and the receiver, who submitted an amicus brief to the court, contend that these appeals are now moot following the appointment of the receiver. We consider mootness first because it is a "threshold jurisdictional inquiry." DeOtte v. Nevada, 20 F.4th 1055, 1064 (5th Cir. 2021) (citation omitted).
A
"[M]ootness accounts for such events that occur during the litigation." Pool v. City of Houston, 978 F.3d 307, 313 (5th Cir. 2020). "As a general rule, 'any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot.'" Env't Conservation Org. v. City of Dallas, 529 F.3d 519, 527 (5th Cir. 2008) (citation omitted). "If intervening circumstances make it impossible for the court to 'grant any effectual relief,' the case is moot." Pool, 978 F.3d at 313 (quoting Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307 (2012)). Under similar circumstances, we recently concluded that a district court's post-appeal orders mooted the appeal in Securities & Exchange Commission v. Barton, No. 22-11242, 2024 WL 1087366, at *3 (5th Cir. Mar. 13, 2024). There, one party appealed the district court's ratification of a receiver's proposed settlement agreement. Id. at *2. After the appeal was filed, the district court entered a new receivership order and simultaneously
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ratified the prior settlement agreement. Id. We explained that the appeal was moot because the post-appeal order had become the "'operative' ruling of the district court" that the appellant needed to attack to obtain its requested relief. Id. at *3. Similarly, we have dismissed an appeal as moot where district and bankruptcy courts had "effectively vacat[ed]" the order from which the appeal arose. In re Ondova Ltd. Co., 619 F. App'x 362, 365 (5th Cir. 2015). So too here. In this case, the district court's order appointing a receiver explicitly "supersedes and/or amends all portions of the court's prior orders directing the turnover of assets of any Receivership Parties to Weslease." The term "Receivership Parties" is defined to include "all entities owned in whole or to the extent they are owned in part by" the Behans. In other words, the Behans' property previously turned over to Weslease is now in the possession of the receiver.
The Behans contend that, following their appeals, the district court lacked jurisdiction to appoint a receiver. But they have not appealed the order appointing a receiver, so we do not consider the district court's jurisdiction to enter that order. See Flast v. Cohen, 392 U.S. 83, 96 (1968) ("[T]he oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." (citation omitted)). Accordingly, we cannot grant any effectual relief to the Behans. See Pool, 978 F.3d at 313. Any controversy now lies between the Behans and the receiver, not Weslease. These five appeals are now moot, except for the awards of attorneys' fees and sanctions, which the district court specifically left intact.2See id.
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B
Having concluded that these five appeals are now moot, all that remains is for us to review the award of attorneys' fees and sanctions. The Texas turnover statute permits a district court to award both attorneys' fees and sanctions. See Tex. Civ. Prac. & Rem. Code § 31.002(c), (e). The Behans do not argue that the awards themselves were improper. Rather, they contend that they are entitled to reimbursement for fees and sanctions because the Turnover and Enforcement Orders are "invalid."
Weslease, by contrast, contends that the awards are proper because they were within the district court's discretion under § 31.002 and the underlying Orders were valid. While both parties addressed the possible mootness of the Orders, neither offered a proposed course of action with respect to the fees and sanctions in the event that we held that the Orders were moot. We have previously concluded that we lacked § 1291 jurisdiction to resolve fee and sanction disputes where the underlying merits issues remained before the district court. In Pool v. City of Houston, for example, we held that an order denying attorneys' fees became an "interim" order when another panel of this court had remanded the merits issues to the district court. 858 F. App'x 732, 734 (5th Cir. 2021) (citing Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341-45 (5th Cir. 1989)). In Quilling v. Funding Resource Group, we did the same for contempt sanctions because the sanctions were _____________________
Dole Food Co. v. Patrickson, 538 U.S. 468, 475 (2003) ("An individual shareholder, by virtue of his ownership of shares, does not own the corporation's assets . . . ."); Bollore S.A. v. Imp. Warehouse, Inc., 448 F.3d 317, 322 (5th Cir. 2006) ("Texas courts construing the turnover statute have expressly and consistently held that it may be used to reach only the assets of parties to the judgment, not the assets of non-judgment [debtor] third parties."). The Behans may continue to press their substantive arguments in district court proceedings involving the receiver's possession of the Behans' property, or in appeals arising out of the same.
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"part and parcel" of continuing litigation in the district court. 227 F.3d 231, 235-36 (5th Cir. 2000).
The district court may modify its conclusions underlying the Orders in future proceedings involving the receiver. If that occurs, the Behans and Sharpe may seek relief from the fee awards or sanctions. We decline to grant that relief at this juncture.
* * *
Accordingly, we DISMISS these appeals as moot.
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