IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-40620
Summary Calendar
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In The Matter Of: MORNINGSIDE MOBILE HOME RV PARK
Debtor
BILL FRISBIE; BRIAN ALAN FRISBIE
Appellants
V.
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION; BANK OF
AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, as Trustee for
Certificateholders Under that Certain Pooling and Servicing Agreement Dated and Effective as of
September 1, 1992 Relating to the Commercial Mortgage Pass-Through Certificates, Series 1992-
C-2; EQ SERVICES INCORPORATED; BANK ONE MANAGEMENT & CONSULTING
CORPORATION; BANKERS TRUST COMPANY OF CALIFORNIA, NA, as Successor
Trustee to Bank of America National Trust and Savings Association as Trustee for Certificate
holders Under that Certain Pooling and Servicing Agreement Dated and Effective as of
September 1, 1992, Relating to the Commercial Mortgage Pass-Through Certificates, Series
1992-C-2; WILLIAM G WEST, JR
Appellees
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Appeal from the United States District Court
for the Southern District of Texas
U.S.D.C. No. M-00-CV-102
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February 21, 2002
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:1
Appellants Bill Frisbie and Brian Alan Frisbie (the “Frisbies”) appeal from the district
court’s order, dismissing their appeal as moot. In the underlying appeal, the Frisbies sought
review of one of the bankruptcy court’s settlement orders (the “Settlement Order”) in the action,
a bankruptcy proceeding under Chapter 11 of Title 11 of the United States Code.
Pursuant to a settlement agreement between the parties (the “Settlement Agreement”), the
bankruptcy judge provided for the following relief in the Settlement Order: (1) the automatic stay
was modified to allow foreclosure on certain real and personal property (the “Property”); (2) the
trustee was ordered to distribute all of the cash in the estate except for $175,000; (3) mutual
releases were to be executed between the parties; and (4) the Frisbies were enjoined from bringing
certain legal action.
In the underlying appeal, the Frisbies contended, in part, that the injunctive relief ordered
by the bankruptcy court was broader than that sought in the parties’ Motion to Approve
Compromise and Settlement Agreement, i.e., they attacked the fourth prong of the Settlement
Order. The Frisbies did not seek a stay of the Settlement Order, however, and subsequent to their
filing a notice of appeal, the Property was foreclosed upon, the cash was distributed to the
Trustee and disbursed and the parties executed mutual releases, i.e., the first three prongs of the
Settlement Order were implemented.
In light of these events, the appellees filed the instant Motion to Dismiss Appeal,
contending that the appeal had been rendered moot. The District Court agreed, concluding (via
1
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.
adoption of United States Magistrate Judge Dorina Ramos’ Report and Recommendation) that
the appeal should be dismissed pursuant to the equitable mootness doctrine because the Frisbies
failed to obtain a stay, the plan had been substantially consummated, and the relief requested by
the Frisbies, a modification of the Settlement Order, would affect the success of the plan. See In
re Manges, 29 F.3d 1034, 1039-43 (5th Cir.1994) (providing and applying the three equitable
mootness elements applied here by the district court).
Although the fact findings by the district court should be accepted unless clearly
erroneous, the ultimate decision that an appeal is equitably moot remains a legal determination to
be reviewed de novo. In re GWI PCS 1 Inc., 230 F.3d 788, 799 (5th Cir. 2000). “The test for
mootness reflects a court’s concern for striking the proper balance between the equitable
considerations of finality and good faith reliance on a judgment and the competing interests that
underlie the right of a party to seek review of a bankruptcy order adversely affecting him.” In re
Manges, 29 F.3d at 1039 (citation omitted).
The Frisbies concede that they failed to seek a stay and that the plan was substantially
consummated, but they contend that the district court erred in concluding that the modification
they seek would affect the success of the plan. We disagree. The Frisbies do not contend that the
Settlement Agreement is an unessential element of the plan nor do they contend that the injunctive
relief aspect of the Settlement Agreement is an unessential element of the agreement. In effect,
they contend that an essential term of a settlement agreement can be unilaterally modified without
affecting the agreement. This counterintuitive argument is unsupported by authority and contrary
to the position of the some of the appellees, settling parties who assert that they would not have
entered into the settlement agreement absent the broad injunctive relief ordered. Here, the
appellees took various irreversible actions in reliance on the Settlement Order; it would be
inequitable to allow the Frisbies, who never sought a stay of that order, to attack its essential
terms. In summary, we conclude that because the relief sought would upset the settlement
agreement and because the settlement agreement is essential to the plan, the relief sought will
affect the success of the plan. Accordingly, we AFFIRM.