UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-50004

Summary Calendar

In the Matter of: ELWOOD CLUCK,

Debtor.

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KRISTINE A. CLUCK; FIRST CAPITAL 

MORTGAGE COMPANY, INCORPORATED;

ELWOOD CLUCK,

Appellants,

VERSUS

RONALD URBANCZYK; OSHEROW & O’CONNOR;

RANDOLPH N. OSHEROW, Trustee; THOMAS WILLIAM

McKENZIE; RANDOLPH N. OSHEROW, Trustee, P.C.;

MICHAEL J. O’CONNOR; CECELIA S. OSHEROW; JAY B.

STEWART, Auctioneer; GEORGE WILLIAMS; LISA

STEWART; JAY B. STEWART,

Appellees.

Appeal from the United States District Court

For the Western District of Texas

(SA-95-CV-428)

September 5, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.
*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opinion should not be published and is not precedent except under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.

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PER CURIAM:*

On December 26, 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

November 29, 1995. The district court judgment affirmed the order

of the Bankruptcy Court for the Western District of Texas dated

March 29, 1995, which dismissed appellants’ original Petition No.

95-03-0078-CVW, Adversary No. 95-5043-REK. 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
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Cluck, the brief of appellee, 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 dismissing

the petition and adversary action of appellant. A dismissal of an

adversary action 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 November

29, 1995, we affirm the judgment of the district court which

affirms the order of the bankruptcy court dismissing the adversary

proceeding. 

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.
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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

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,
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any attempted submission inconsistent with this bar.

The judgment of the district court is AFFIRMED. SANCTIONS

IMPOSED.