Ross H. Briggs v. John v. Labarge, Jr. , 209 F. App'x 607 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4467
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In re: Samuel Smith, Sr., *
*
Debtor, *
______________________________ *
*
Ross H. Briggs, * Appeal from the United States
* Bankruptcy Appellate Panel
Appellant, * for the Eighth Circuit.
*
v. * [UNPUBLISHED]
*
John V. LaBarge, Jr., *
*
Appellee. *
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Submitted: December 7, 2006
Filed: December 14, 2006
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Before SMITH, MAGILL and BENTON, Circuit Judges.
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PER CURIAM.
In this Chapter 13 bankruptcy matter, the debtor’s attorney, Ross Briggs,
appeals from an order of the Bankruptcy Appellate Panel (BAP) dismissing as moot
his appeal from the bankruptcy court’s1 order denying him attorney’s fees. For
1
The Honorable Barry S. Schermer, Chief Judge, United States Bankruptcy
Court for the Eastern District of Missouri.
reversal, Briggs argues, inter alia, that the BAP erroneously dismissed his initial
appeal as moot where it was still possible to order the debtor to pay the disputed
attorney’s fees and where the issue was “capable of repetition yet evading review.”
The BAP dismissed Briggs’s initial appeal upon the trustee’s motion after the
debtor had fulfilled his obligations under the plan; the trustee had, pursuant to a
bankruptcy court order, returned all the excess funds in the estate to the debtor; the
bankruptcy court had discharged the debtor; and Briggs had not sought or obtained a
stay of any of the relevant orders. We conclude that, because reversal of the
bankruptcy court’s denial of attorney’s fees would have been inequitable and
impracticable at that time, the BAP did not err in dismissing Briggs’s appeal as moot.
See In re Little, 253 B.R. 427, 430 (B.A.P. 8th Cir. 2000) (“[I]n bankruptcy
proceedings, the mootness doctrine . . . involves equitable considerations. Thus,
although effective relief may conceivably be fashioned, if implementation of that
relief would be inequitable, the appeal may be determined to be moot.”); cf. In re
Roller, 999 F.2d 346, 347 (8th Cir. 1993) (where debtors were appealing conversion
order but had failed to obtain stay of conversion order or of subsequent trustee
appointment or liquidation of assets under new plan, reversal of conversion order was
no longer practicable and district court properly dismissed appeal as moot).
Moreover, the exception to the mootness doctrine for cases “capable of repetition yet
evading review” did not apply. See Iowa Prot. & Advocacy Servs. v. Tanager, Inc.,
427 F.3d 541, 544 (8th Cir. 2005) (where prompt application for stay pending appeal
could have preserved issue for appeal, issue was not one that evaded review (cited
case omitted)). We therefore affirm the BAP’s dismissal order.
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