Cluck v. Osherow ( 1996 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50846
Summary Calendar
In the Matter of: ELWOOD CLUCK,
Debtor.
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ELWOOD CLUCK; KRISTINE A. CLUCK;
FIRST CAPITAL MORTGAGE COMPANY, INCORPORATED,
Appellants,
VERSUS
RANDOLPH N. OSHEROW,
Appellee.
Appeal from the United States District Court
For the Western District of Texas
(SA-94-CV-1064)
August 30, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
*
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opinion should not be published and is not precedent except under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.
On November 16, 1995, Elwood Cluck, Kristine A. Cluck, and
First Capital Mortgage Company, Inc. as appellants signed and filed
a notice of appeal to the United States Court of Appeals for the
Fifth Circuit from the final order and judgment of the United
States District Court for the Western District of Texas, filed
October 26, 1995. The district court judgment affirmed the order
of the Bankruptcy Court for the Western District of Texas dated
October 21, 1994, which denied appellants’ motion to remove
Randolph N. Osherow as Trustee. The appellants’ brief filed in
this appeal was signed only by Elwood Cluck; neither Kristine A.
Cluck nor any attorney purporting to act for First Capital Mortgage
Company, Inc. signed the brief. Local Rule 34.2 of this Court
requires that all briefs be signed by each pro se party or by at
least one attorney of record for each party. Since the appellants’
brief in this appeal was not signed by Kristine A. Cluck nor by any
attorney of record for Kristine A. Cluck or First Capital Mortgage
Company, Inc., we deem the appeal of Kristine A. Cluck and First
Capital Mortgage Company, Inc. to be abandoned for failure to file
a brief and we, therefore, dismiss the appeal of Kristine A. Cluck
and First Capital Mortgage Company, Inc.
We have carefully reviewed the brief of appellant Elwood
Cluck, the brief of appellee, the reply brief, the record excerpts
and relevant portions of the record itself. The only issue in this
appeal is whether the bankruptcy court abused its discretion in
denying the motion to remove the individual appointed as trustee.
2
A motion for removal of trustee is reviewable under an abuse of
discretion standard. First Colonial Corp. v. American Benefit Life
Ins. Co., 544 F.2d 1291 (5th Cir. 1977), cert. denied 431 U.S. 904.
Findings of fact, whether based on oral or documentary evidence,
shall not be set aside unless clearly erroneous and due regard
shall be given to the opportunity of the bankruptcy court to judge
the credibility of witnesses. In Re Bradley, 960 F.2d 502, 506
(5th Cir. 1992), cert. denied, 507 U.S. 971 (1993). For the
reasons stated by the district court in its separate order filed
under date of October 26, 1995, we affirm the judgment of the
district court which affirms the order of the bankruptcy court
denying the motion to remove Randolph N. Osherow as trustee.
This appeal is one of 24 separate appeals which appellant
Elwood Cluck has filed in this Court, all arising out of the same
bankruptcy proceeding. This Court has previously warned Cluck that
frivolous appeals could result in the imposition of sanctions.
Cluck v. Osherow, Nos. 95-50611, 95-50613 and 95-50614 (5th Cir.
June 7, 1995) (unpublished). In another appeal, this Court imposed
sanctions in the amount of the appellee’s costs and attorney’s fees
incurred during appeal. Cluck v. Osherow, No. 95-50797 (5th Cir.
June 21, 1996) (unpublished). We find the instant appeal is
frivolous. The result is 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.
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1987) (a frivolous appeal is one in which the claim advanced is
unreasonable or is not brought with reasonably good faith belief
that it is justified). Given the prior sanction warning and the
prior imposition of sanctions and Cluck’s continued prosecution of
this frivolous appeal, we now impose sanctions in DOUBLE the amount
of the appellee’s costs and attorney’s fees incurred during this
appeal. Accordingly, the appellee is directed to submit to this
court its application for costs and attorney’s fees incurred during
this appeal, together with supporting documents. We direct the
clerk to issue the mandate immediately and not accept any filing of
a motion for rehearing from Cluck. We further direct the clerk to
amend the mandate as to the final certification of double costs and
attorney’s fees as set by the sanctions herein. See Fed. R. App.
P. 39(d) and 41.
Finally, Cluck is barred from filing any pro se civil appeal
in this Court, or any pro se initial civil pleading in any court
which is subject to this Court’s jurisdiction, without the advance
written permission of a judge of the forum court or of this Court;
the clerk of this Court and the clerks of all federal district
courts in this Circuit are directed to return to Cluck, unfiled,
any attempted submission inconsistent with this bar.
The judgment of the district court is AFFIRMED. SANCTIONS
IMPOSED.
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