BKS Properties v. Shumate ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-10181
Summary Calendar
_____________________
In The Matter Of: GASTON A. SHUMATE,
Debtor.
BKS PROPERTIES; BERNADENE KAY SHIRLEY; PETER B. BARTHOLOW;
VICTORIA M. BARTHOLOW; THEODORE O. BARTHOLOW, JR.; MOLLY W.
BARTHOLOW; JOSEPH COLVIN, independent executor of the
estate of Henry Seals, deceased and Henry Seals, Trustee;
FIRST AMERICAN TITLE INSURANCE COMPANY OF TEXAS; CONTINENTAL
CASUALTY COMPANY; BENJAMIN KNITTEL; SCOTT MOORING; BLACKMON
MOORING, INC.; BMS ENTERPRISE, INC.; NANCY S. MILLER,
Appellees,
versus
GASTON A. SHUMATE,
Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
USDC No. 3:97-MC-105-X
_________________________________________________________________
September 30, 2002
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
Debtor-appellant Gaston A. Shumate, appearing pro se, appeals
a final order of the district court finding him in contempt of
court for knowingly and deliberately violating an order entered in
*
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this opinion should not be published and is not precedent except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.
this case by the United States Bankruptcy Court on October 29, 1997
(hereafter the “1997 Memorandum Order”). The 1997 Memorandum
Order, which was approved by the district court and affirmed by
this Court, enjoined Shumate from continuing to file lawsuits
challenging the settlement approved in Shumate’s bankruptcy
proceeding in 1992. Nevertheless, Shumate filed two lawsuits
against the same parties involved in his bankruptcy concerning the
same property at issue in that proceeding. The appellees moved to
enforce the 1997 Memorandum Order, and the district court granted
their motion based on a very detailed report and recommendation
from the bankruptcy court. The district court awarded appellees
additional attorneys’ fees; ordered Shumate incarcerated until
those sanctions are paid; suspended the incarceration “contingent
upon Shumate not commencing any judicial or administrative
proceeding” against the various defendants in the two lawsuits that
violated the 1997 Memorandum Order; and directed the clerk of the
district court and the clerks of all other courts not to accept for
filing any paper submitted by Shumate (except for papers related to
an appeal of the contempt order) until he pays the additional
sanctions. Id. at 2-3.
We have reviewed the record and the briefs of the parties and
we find no error in the findings or conclusions of either the
district court or the bankruptcy court. The only serious question
in this case is whether Shumate’s appeal is frivolous.1 See Fed R.
1
The appellees request that this Court award them an
additional $5,000, double costs, or such other amount as the Court
App. P. 38; Fifth Circuit Rule 42.2. We find that Shumate’s
appeal is frivolous. Shumate has spent the last decade filing
meritless lawsuits in various courts in a vain and vexatious
attempt to re-litigate the settlement approved in his bankruptcy
proceeding. As we noted in a prior appeal in this case, the courts
have shown admirable patience with Shumate, but patience must have
reasonable limits. This is Shumate’s seventh appearance before
this Court, and he has exhausted our patience with this most recent
frivolous appeal. Shumate’s brief is convoluted, unsupported by a
complete transcript of the contempt proceedings below, and full of
irrelevant and inaccurate statements about his case.2 Although we
liberally construe briefs filed by pro se litigants, we still
require them to be non-frivolous and in compliance with the Federal
Rules of Appellate Procedure. See, e.g., Douglass v. United
deems to be “just damages” under Rule 38 of the Federal Rules of
Appellate Procedure. See Appellee’s Brief at 26-30. We treat this
request as a motion filed pursuant Rule 38.
2
We note that at least a partial transcript of the October
23, 2001 bankruptcy hearing on appellee’s motion to enforce was
prepared and included in the record. Shumate initially requested
a full transcript of the hearing at government expense from the
district court and, subsequently, from this Court, but both courts
denied this request. In his brief to this Court, Shumate formally
abandons his request for a transcript because he thinks the request
is “moot.” See Brief of Appellant at 13. It is unclear why
Shumate thinks his request for a transcript is moot, but a complete
transcript of the relevant proceedings below is a necessary part of
the record on appeal if the appellant seeks to challenge the
findings of the court below as unsupported by the evidence. See
Fed. R. App. P. 10(a)-(b); Alizadeh v. Safeway Stores, Inc., 910
F.2d 234, 237 (5th Cir. 1990). Shumate’s decision not to provide
this Court with a complete transcript and to abandon his request
for a transcript at government expense alone might justify this
Court’s decision to dismiss his appeal. Id.
Services Auto. Ass'n, 65 F.3d 452, 455 n.4,. (5th Cir. 1995) (en
banc). In the past, we have levied sanctions upon pro se parties
who abused the judicial process. See, e.g., Vinson v. Texas Bd. of
Corrections, 901 F.2d 474 (5th Cir. 1990). Similar action appears
to be warranted here.
Accordingly, Shumate’s appeal is DISMISSED in its entirety,
and IT IS ORDERED that Shumate respond to the appellee’s request
for damages and costs and show cause why this Court should not
enter an order imposing sanctions on him for his frivolous appeal
within fourteen days of the entry of this decision.
APPEAL DISMISSED;
APPELLANT ORDERED TO SHOW CAUSE.