Filed: Mar. 08, 2004
Latest Update: Feb. 21, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 96-50004 Summary Calendar In the Matter of: ELWOOD CLUCK, Debtor. - KRISTINE A. CLUCK; FIRST CAPITAL MORTGAGE COMPANY, INCORPORATED; ELWOOD CLUCK, Appellants, VERSUS RONALD URBANCZYK; OSHEROW & O’CONNOR; RANDOLPH N. OSHEROW, Trustee; THOMAS WILLIAM McKENZIE; RANDOLPH N. OSHEROW, Trustee, P.C.; MICHAEL J. O’CONNOR; CECELIA S. OSHEROW; JAY B. STEWART, Auctioneer; GEORGE WILLIAMS; LISA STEWART; JAY B. STEWART, Appellees. Appeal from the Unite
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 96-50004 Summary Calendar In the Matter of: ELWOOD CLUCK, Debtor. - KRISTINE A. CLUCK; FIRST CAPITAL MORTGAGE COMPANY, INCORPORATED; ELWOOD CLUCK, Appellants, VERSUS RONALD URBANCZYK; OSHEROW & O’CONNOR; RANDOLPH N. OSHEROW, Trustee; THOMAS WILLIAM McKENZIE; RANDOLPH N. OSHEROW, Trustee, P.C.; MICHAEL J. O’CONNOR; CECELIA S. OSHEROW; JAY B. STEWART, Auctioneer; GEORGE WILLIAMS; LISA STEWART; JAY B. STEWART, Appellees. Appeal from the United..
More
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50004
Summary Calendar
In the Matter of: ELWOOD CLUCK,
Debtor.
-------------------------
KRISTINE A. CLUCK; FIRST CAPITAL
MORTGAGE COMPANY, INCORPORATED;
ELWOOD CLUCK,
Appellants,
VERSUS
RONALD URBANCZYK; OSHEROW & O’CONNOR;
RANDOLPH N. OSHEROW, Trustee; THOMAS WILLIAM
McKENZIE; RANDOLPH N. OSHEROW, Trustee, P.C.;
MICHAEL J. O’CONNOR; CECELIA S. OSHEROW; JAY B.
STEWART, Auctioneer; GEORGE WILLIAMS; LISA
STEWART; JAY B. STEWART,
Appellees.
Appeal from the United States District Court
For the Western District of Texas
(SA-95-CV-428)
September 5, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
On December 26, 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
November 29, 1995. The district court judgment affirmed the order
of the Bankruptcy Court for the Western District of Texas dated
March 29, 1995, which dismissed appellants’ original Petition No.
95-03-0078-CVW, Adversary No. 95-5043-REK. 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
*
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.
2
Cluck, the brief of appellee, 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 dismissing
the petition and adversary action of appellant. A dismissal of an
adversary action 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 November
29, 1995, we affirm the judgment of the district court which
affirms the order of the bankruptcy court dismissing the adversary
proceeding.
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.
3
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.
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,
4
any attempted submission inconsistent with this bar.
The judgment of the district court is AFFIRMED. SANCTIONS
IMPOSED.
5