UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50335
Summary Calendar
In the Matter of: ELWOOD CLUCK,
Debtor.
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ELWOOD CLUCK; KRISTINE A. CLUCK,
Appellants,
VERSUS
RANDOLPH N. OSHEROW, Trustee;
THOMAS WILLIAM MCKENZIE,
Appellees
Appeal from the United States District Court
for the Western District of Texas
September 20, 1996
Before HIGGINBOTHAM, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
On April 26, 1996, Elwood Cluck, pro se as appellant 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,
*
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this opinion should not be published and is not precedent except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.
filed April 16, 1996. The district court judgment affirmed the
order of the Bankruptcy Court for the Western District of Texas
dated September 12, 1995, which awarded attorney’s fees and costs
to Thomas McKenzie as attorney for Randolph N. Osherow, Trustee.
The notice of appeal also named Kristine A. Cluck as a pro se
appellant but was not signed by her. We treat her notice of appeal
as sufficient under FRAP 3(c). However, the appellants’ brief
filed in this appeal was signed only by Elwood Cluck; neither
Kristine A. Cluck nor any attorney purporting to act for her 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, we deem the appeal of Kristine A. Cluck to
be abandoned for failure to file a brief and we, therefore, dismiss
the appeal of Kristine A. Cluck.
We have carefully reviewed the brief of appellant Elwood
Cluck, the brief of appellee, the reply brief, 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
awarding attorney’s fees and costs per its order of September 12,
1995. Awards of attorney’s fees and costs are reviewable under an
abuse of discretion standard. In Re Evangeline Refining Co., 890
F.2d 1312, 1322 (5th Cir. 1989); 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
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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 April 16, 1996, we affirm the
judgment of the district court which affirms the order of the
bankruptcy court awarding attorney’s fees and costs.
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.
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
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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,
any attempted submission inconsistent with this bar.
The judgment of the district court is AFFIRMED. SANCTIONS
IMPOSED.
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