Ross H. Briggs v. John v. LaBarge, Jr. , 223 F. App'x 530 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2233
___________
In re: James McGregory *
*
Ross H. Briggs, *
*
Appellant, *
* Appeal from the United States
v. * Bankruptcy Appellate Panel.
*
John V. LaBarge, Jr., * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: March 12, 2007
Filed: March 27, 2007
___________
Before MELLOY, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
Attorney Ross H. Briggs appeals a Bankruptcy Appellate Panel (“BAP”)
decision affirming an order from the United States Bankruptcy Court for the Eastern
District of Missouri.1 In the order, the court sanctioned Briggs by ordering him to
disgorge fees he received for services as bankruptcy counsel for Chapter 13 debtor
James McGregory. The court found Briggs had labored under a conflict of interest
1
The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
when he served as counsel to McGregory while also serving as a mortgage consultant
for a lender and earning compensation from the lender by assisting in the refinancing
of a mortgage on McGregory’s home. United States Bankruptcy Trustee John V.
LaBarge, Jr., moves for dismissal of Briggs’s appeal as moot. We grant the motion
to dismiss.
Briggs did not move for a stay of any proceedings in the bankruptcy court
during his BAP appeal or the present appeal. As a result, after the court entered the
sanction order, McGregory proceeded to complete performance under his Chapter 13
plan, and the trustee paid all allowed claims and refunded excess funds to McGregory.
Briggs had received a $1700 fee for his legal services earlier in McGregory’s Chapter
13 proceedings. Apparently, Briggs returned this fee to the trustee, as ordered, before
the trustee disbursed the estate. In the motion to dismiss Briggs’s appeal as moot, the
trustee argues, “This Court could not fashion effective relief in favor of Appellant
Briggs because there are no funds available with which to pay back his attorney fees
and no funds will become available because the chapter 13 plan has completed and the
Debtor has received a discharge.” Briggs does not contest the trustee’s
characterization of facts or events that occurred subsequent to the time the bankruptcy
court issued the sanction order.
In a recent case involving Briggs, the same trustee, and another of Briggs’s
bankruptcy clients, the same factual scenario arose. The bankruptcy court had
sanctioned Briggs, Briggs failed to seek a stay, and the underlying bankruptcy ended.
In that case, the trustee filed a motion to dismiss due to mootness while an appeal was
pending before the BAP. The BAP granted the motion to dismiss, and a panel of our
court affirmed the BAP’s dismissal order. In re Smith, No. 05-4467, 2006 WL
3627147 at *1 (8th Cir. Dec. 14, 2006) (“Smith”). There, Briggs argued that the
motion to dismiss should be denied because his case was capable of repetition yet
evading review and because it was conceivable that the BAP could order the debtor
to pay Briggs’s fee. Our court stated, “We conclude that, because reversal of the
-2-
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.”
Id. We noted that mootness in the bankruptcy setting “‘involves equitable
considerations’” and a case may be deemed moot if relief is conceivable but would be
inequitable to the debtor. Id. (quoting In re Little, 253 B.R. 427, 430 (B.A.P. 8th Cir.
2000)). We also noted that a case is not considered to be capable of repetition yet
evading review where a timely motion for a stay could have preserved the appeal. Id.;
Iowa Prot. & Advocacy Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005).
In resistance to the present motion, Briggs repeats his argument that his case
presents issues that are capable of repetition yet evade review. We reject this
argument because a timely motion for a stay could have preserved his appeal. Iowa
Prot. & Advocacy Servs., 427 F.3d at 544. He also argues that he will suffer collateral
consequences if the bankruptcy court’s sanction order is not reversed, and he urges
us to view these collateral consequences as sufficient to avoid a dismissal for
mootness. He describes the collateral consequences the sanction will have as a
detrimental effect on his bankruptcy practice and discipline regarding his Missouri law
license. He notes that the underlying issues concerning sanctions against him were not
addressed in Smith. He also notes that in a prior referral to the Missouri Office of
Chief Disciplinary Counsel, that body took the position that he is bound by the final
ruling of the bankruptcy court. As such, that body will not allow him to relitigate the
merits of the ethical controversies that underlie the bankruptcy court’s sanctions order.
In support of his collateral consequences argument, Briggs cites Sibron v. New
York, 392 U.S. 40, 57 (1968). In Sibron, the Court held that a criminal case did not
become moot after a convicted defendant served his entire sentence. Id. The Court
proceeded to address the merits of the defendant’s appeal because a criminal
conviction carries consequences in addition to the time served in prison. The present
case bears no relationship to Sibron. Even if we were to find that the collateral
-3-
consequences theory addressed in Sibron could apply in the context of a sanction
order against an attorney in a civil proceeding, Briggs would not be entitled to relief.
He alone was responsible for failing to preserve his appeal by seeking a stay. Just as
we do not consider his case to be capable of repetition yet evading review, we do not
consider the possible collateral consequences he faces to be recognizable exceptions
to rule of equitable mootness applied in Smith.
The appeal is dismissed.
______________________________
-4-