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BKS Properties v. Shumate, 02-10181 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-10181 Visitors: 3
Filed: Oct. 01, 2002
Latest Update: Feb. 21, 2020
Summary: 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,
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               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this opinion should not be published and is not precedent except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.

Source:  CourtListener

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