IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10038
Summary Calendar
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In the Matter of:
ERIC L. SHERMAN,
Debtor.
JOHN WHEAT GIBSON,
Appellant,
VERSUS
COLONIAL SAVINGS,
Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-2690-H)
_________________________
September 3, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
John Gibson appeals sanctions imposed upon him by the
*
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should not be published and is not precedent except under the limited circumstances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.
bankruptcy court. Finding no reversible error, we affirm.
I.
Gibson represents Eric Sherman, the debtor, in the underlying
bankruptcy proceeding. Dorothy Scherr is the attorney for Colonial
Mortgage (“Colonial”), one of Sherman’s creditors. In August 1995,
Colonial and Sherman began disputing whether a court order properly
calculated the post-petition arrears Sherman owed to Colonial.
Sherman informed Gibson that the order failed to account for a $465
payment he had made to Colonial. Without obtaining a copy of the
canceled check or any other proof that Sherman had made the
payment, Gibson filed a motion to reconsider the order.
A hearing on Gibson’s motion was set for September 26, 1995.
Prior to the hearing, Gibson spoke by telephone with Scherr, who
agreed to modify the arrearage calculation if Sherman would produce
a copy of the canceled check. Gibson failed to produce a copy of
the check prior to the hearing.
On the morning of the hearing, Sherman finally informed Gibson
that he did not have a copy of the check. At about the same time,
Gibson received a copy of Scherr’s response to his motion to
reconsider, which included a motion to sanction Gibson for
vexatious litigation. Gibson proceeded to the hearing without a
copy of the canceled check, whereupon the court denied his motion
to reconsider. The court also found that Gibson could have
resolved the controversy by communicating more effectively with
2
Scherr1 and sanctioned him $250.
Gibson then filed a motion to reconsider the sanctions. The
district court denied the motion in a four-page order. Gibson
appealed to the district court, which affirmed.
II.
Gibson first contends that the bankruptcy court erred by
“rel[ying] exclusively on the bald assertions” of Scherr. His
truncated argument, however, is insufficient to permit us to rule
in his favor; indeed, we cannot even determine what is the basis of
his complaint. To be sure, he does cite United States v. Treadway,
445 F. Supp. 959 (N.D. Tex. 1978), which held that an attorney may
not appear before a grand jury as both prosecutor and witness. But
Treadway does not apply to the instant case, as Scherr did not
appear before the court as a witness. Nor does Gibson appear to be
complaining that Scherr communicated ex parte with the court on the
motion for sanctions; the record reveals that both Scherr and
Gibson were present at the hearing, and the court heard from both
before imposing sanctions. Finally, we note that Gibson does not
claim that any specific statement by Scherr was a misrepresenta-
tion.
Gibson also argues that he did not receive reasonable notice
1
Given Scherr’s willingness to have the order modified upon receipt of the
canceled check, the court presumably meant that Gibson should have resolved this
matter without a hearing.
3
that the bankruptcy court was considering sanctions.2 He does not,
however, make a due process claimSShe fails even to invoke the term
“due process.” Rather, he contends that the district court did not
give him the notice mandated by the bankruptcy and civil rules.
Gibson’s claim that the bankruptcy court failed to provide him
with the notice mandated by the rules of civil procedure is utterly
meritless. He complains that he did not receive the notice
required by rules 5 and 6. Even a cursory examination of the rules
of civil procedure, however, should have informed him that they do
not apply to bankruptcy proceedings. See FED. R. CIV. P. 81(a)(1)
(“[t]he[se rules] do not apply to proceedings in bankruptcy”).
Gibson also claims that he did not receive adequate notice
pursuant to BANKR. R. 9014. That rule, however, applies only “[i]n
a contested matter under the Code not otherwise governed by these
2
Initially, Gibson appears to argue that he did not receive an opportunity
to present evidence in his defense. It is evident from the context of his
argument, however, that he is actually asserting that he was unable to prepare
an adequate defense because he lacked notice of the sanctions.
If Gibson is attempting to argue that the bankruptcy court did not hear
from him, he is in error. The record reveals that the court heard from Gibson
at the hearing on the sanctions motion before imposing sanctions. Finally,
Gibson’s failure to cite any legal authority in support of his position waives
his argument. See FED. R. APP. P. 28(a)(6) (requiring that appellant's brief
"contain the contentions of the appellant on the issues presented, and the
reasons therefor, with citations to the authorities, statutes, and parts of the
record relied on"); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260
n.9 (5th Cir. 1995) (holding that "failure to provide any legal or factual
analysis of an issue results in waiver"); United States v. Maldonado, 42 F.3d
906, 910 n.7 (5th Cir. 1995) (reasoning that failure to do more than vaguely
refer to issue constitutes waiver); Zuccarello v. Exxon Corp., 756 F.2d 402, 407
(5th Cir. 1985) (noting that court will not consider issue that was not briefed
under standards of rule 28).
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rules.” The bankruptcy court imposed sanctions under rule 9011.3
The sanctions were therefore “otherwise governed by these
rules”SSspecifically rule 9011SSand rule 9014 is inapplicable.
Finally, Gibson asserts that Colonial’s motion did not comply
with BANRK. R. N.D. TEX. 9014(c), which requires that “[i]n any
evidentiary hearing conducted on a ‘contested matter,’ all counsel
shall certify before the presentation of evidence: (1) that good
faith settlement have been held or why they were not held.” Gibson
appears to argue that because Scherr failed to conduct settlement
negotiations regarding the sanctions motion, he received inadequate
notice of the motion.
Rule 9014(c) applies only where there has been an “evidentiary
hearing on a contested matter,” however, and Gibson has not pointed
to any such hearing. The only relevant hearing of which we are
aware was the hearing on the motion to reconsider. But that
hearing was not an evidentiary hearing, as neither side presented
evidence or testimony under oath. We therefore find local rule
9014(c) inapplicable.
AFFIRMED.
3
Colonial originally moved for sanctions pursuant to bankruptcy rule 9011
and 28 U.S.C. § 1927 (1994). At the hearing on Colonial’s motion, the court
simply imposed the sanction “for failure to communicate effectively with respect
to [Colonial’s] counsel,” but it twice invoked both rule 9011 and § 1927 in its
written order denying Gibson’s motion to reconsider the sanction. In light of
this, we conclude that the district court relied on rule 9011 and § 1927 as
alternative bases for the sanction. Because we determine that the sanctions were
permissible under rule 9011, we need not consider whether the court’s alternative
basis requires a remand.
5