*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opinion should not be published and is not precedent except under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.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50846

Summary Calendar

In the Matter of: ELWOOD CLUCK,

Debtor.

-------------------------

ELWOOD CLUCK; KRISTINE A. CLUCK;

FIRST CAPITAL MORTGAGE COMPANY, INCORPORATED,

Appellants,

VERSUS

RANDOLPH N. OSHEROW,

Appellee.

Appeal from the United States District Court

For the Western District of Texas

(SA-94-CV-1064)

August 30, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*
2

On November 16, 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

October 26, 1995. The district court judgment affirmed the order

of the Bankruptcy Court for the Western District of Texas dated

October 21, 1994, which denied appellants’ motion to remove

Randolph N. Osherow as Trustee. 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

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

denying the motion to remove the individual appointed as trustee.
3

A motion for removal of trustee 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 October 26, 1995, we affirm the judgment of the

district court which affirms the order of the bankruptcy court

denying the motion to remove Randolph N. Osherow as trustee. 

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.
4

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,

any attempted submission inconsistent with this bar.

The judgment of the district court is AFFIRMED. SANCTIONS

IMPOSED.