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The Honorable Barry S. Schermer, United States Bankruptcy Judge for the

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2233

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In re: James McGregory *

*

Ross H. Briggs, *

*

Appellant, *

* Appeal from the United States

v. * Bankruptcy Appellate Panel.

*

John V. LaBarge, Jr., * [UNPUBLISHED]

*

Appellee. *

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Submitted: March 12, 2007

Filed: March 27, 2007

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Before MELLOY, SMITH, and BENTON, Circuit Judges.

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PER CURIAM.

Attorney Ross H. Briggs appeals a Bankruptcy Appellate Panel (“BAP”)

decision affirming an order from the United States Bankruptcy Court for the Eastern

District of Missouri.1

 In the order, the court sanctioned Briggs by ordering him to

disgorge fees he received for services as bankruptcy counsel for Chapter 13 debtor

James McGregory. The court found Briggs had labored under a conflict of interest
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when he served as counsel to McGregory while also serving as a mortgage consultant

for a lender and earning compensation from the lender by assisting in the refinancing

of a mortgage on McGregory’s home. United States Bankruptcy Trustee John V.

LaBarge, Jr., moves for dismissal of Briggs’s appeal as moot. We grant the motion

to dismiss.

Briggs did not move for a stay of any proceedings in the bankruptcy court

during his BAP appeal or the present appeal. As a result, after the court entered the

sanction order, McGregory proceeded to complete performance under his Chapter 13

plan, and the trustee paid all allowed claims and refunded excess funds to McGregory.

Briggs had received a $1700 fee for his legal services earlier in McGregory’s Chapter

13 proceedings. Apparently, Briggs returned this fee to the trustee, as ordered, before

the trustee disbursed the estate. In the motion to dismiss Briggs’s appeal as moot, the

trustee argues, “This Court could not fashion effective relief in favor of Appellant

Briggs because there are no funds available with which to pay back his attorney fees

and no funds will become available because the chapter 13 plan has completed and the

Debtor has received a discharge.” Briggs does not contest the trustee’s

characterization of facts or events that occurred subsequent to the time the bankruptcy

court issued the sanction order.

In a recent case involving Briggs, the same trustee, and another of Briggs’s

bankruptcy clients, the same factual scenario arose. The bankruptcy court had

sanctioned Briggs, Briggs failed to seek a stay, and the underlying bankruptcy ended.

In that case, the trustee filed a motion to dismiss due to mootness while an appeal was

pending before the BAP. The BAP granted the motion to dismiss, and a panel of our

court affirmed the BAP’s dismissal order. In re Smith, No. 05-4467, 2006 WL

3627147 at *1 (8th Cir. Dec. 14, 2006) (“Smith”). There, Briggs argued that the

motion to dismiss should be denied because his case was capable of repetition yet

evading review and because it was conceivable that the BAP could order the debtor

to pay Briggs’s fee. Our court stated, “We conclude that, because reversal of the
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bankruptcy court’s denial of attorney’s fees would have been inequitable and

impracticable at that time, the BAP did not err in dismissing Briggs’s appeal as moot.”

Id. We noted that mootness in the bankruptcy setting “‘involves equitable

considerations’” and a case may be deemed moot if relief is conceivable but would be

inequitable to the debtor. Id. (quoting In re Little, 253 B.R. 427, 430 (B.A.P. 8th Cir.

2000)). We also noted that a case is not considered to be capable of repetition yet

evading review where a timely motion for a stay could have preserved the appeal. Id.;

Iowa Prot. & Advocacy Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005).

In resistance to the present motion, Briggs repeats his argument that his case

presents issues that are capable of repetition yet evade review. We reject this

argument because a timely motion for a stay could have preserved his appeal. Iowa

Prot. & Advocacy Servs., 427 F.3d at 544. He also argues that he will suffer collateral

consequences if the bankruptcy court’s sanction order is not reversed, and he urges

us to view these collateral consequences as sufficient to avoid a dismissal for

mootness. He describes the collateral consequences the sanction will have as a

detrimental effect on his bankruptcy practice and discipline regarding his Missouri law

license. He notes that the underlying issues concerning sanctions against him were not

addressed in Smith. He also notes that in a prior referral to the Missouri Office of

Chief Disciplinary Counsel, that body took the position that he is bound by the final

ruling of the bankruptcy court. As such, that body will not allow him to relitigate the

merits of the ethical controversies that underlie the bankruptcy court’s sanctions order.

In support of his collateral consequences argument, Briggs cites Sibron v. New

York, 392 U.S. 40, 57 (1968). In Sibron, the Court held that a criminal case did not

become moot after a convicted defendant served his entire sentence. Id. The Court

proceeded to address the merits of the defendant’s appeal because a criminal

conviction carries consequences in addition to the time served in prison. The present

case bears no relationship to Sibron. Even if we were to find that the collateral
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consequences theory addressed in Sibron could apply in the context of a sanction

order against an attorney in a civil proceeding, Briggs would not be entitled to relief.

He alone was responsible for failing to preserve his appeal by seeking a stay. Just as

we do not consider his case to be capable of repetition yet evading review, we do not

consider the possible collateral consequences he faces to be recognizable exceptions

to rule of equitable mootness applied in Smith.

The appeal is dismissed.

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