* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 97-31234

________________________

IN THE MATTER OF: SHELTON’S TRUCK STOP, INC.,

Debtor.

________________________________________

GLADYS SHELTON,

Appellant,

v.

HAROLD L. ROSBOTTOM, JR., LESLIE FOX ROSBOTTOM, and MARTIN A.

SCHOTT, Chapter 11 Trustee,

Appellees.

_________________________________________________________________

Appeal from the United States District Court 

for the Middle District of Louisiana

(97-CV-95-A)

_________________________________________________________________

March 3, 1999

Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gladys Shelton, the sole shareholder of the debtor, Shelton

Truck Stop, Inc., appeals the confirmation order entered by the

bankruptcy court on October 10, 1996. That order approved a

reorganization plan (“Plan”) that had been proposed by the

debtor’s largest creditor, Harold Rosbottom, who is an appellee

here. Shelton filed a motion for reconsideration, which the
2

bankruptcy court denied on October 25. On November 4, Shelton

filed a notice of appeal of the confirmation order but did not

seek a stay of that order from the bankruptcy court or the

district court.

In the meantime, Rosbottom and the Chapter 11 trustee, who

is also an appellee here, began to implement the confirmed Plan: 

On the same day that Shelton appealed to the district court, the

trustee transferred the debtor’s assets to St. Francisville

Investments, LLC (“SFI”), an entity formed and capitalized by

Rosbottom. With the trustee’s agreement, the bankruptcy court on

November 8 dismissed with prejudice the adversary proceedings

that the debtor or its trustee had instituted against Rosbottom. 

SFI assumed and paid interest due on Shelton Truck Stop’s secured

debts to the Small Business Administration and to a local bank,

tendered $10,000 for a secured debt owed by the debtor to

Shelton’s sister, paid the administrative expenses of the trustee

and his counsel, and began monthly payments to cover priority tax

claims. In addition, small unsecured creditors received

remuneration representing 50% of their claims, and large

unsecured creditors began in April 1997 to receive regular

disbursements derived from revenues generated by the property

transferred to SFI. Under the terms of the Plan, the latter

class of creditors are recouping 100% of their claims.

In the district court, appellee Rosbottom moved to dismiss

Shelton’s appeal, arguing that substantial consummation of the

Plan had rendered the appeal moot and that Shelton lacked 
3

standing. Shelton did not oppose the motion. The district court

accepted the appellee’s arguments and granted the motion to

dismiss. Shelton then moved for reconsideration, requesting

additional time to secure the Chapter 7 trustee’s abandonment of

the claims at issue so that Shelton could pursue them. In her

motion, Shelton did not contest the court’s conclusion that her

appeal was moot. The district court denied the motion for

reconsideration, finding that Shelton had failed to show good

cause or substantial reason to set aside the dismissal. In its

order, the district court noted that it had previously granted

Shelton an extension and that she had allowed that time to lapse

without moving for a continuance or taking other steps to

preserve her claims. Shelton filed a notice of appeal from the

district court’s dismissal of her appeal and its denial of her

motion for reconsideration.

We agree with the district court’s finding that the instant

appeal is moot and need not address the appellees’ alternative

argument in support of dismissal. Shelton did not obtain a stay,

and as a consequence, implementation of the Plan proceeded

unhindered. At this juncture, the Plan has been substantially

consummated such that this court could not fashion effective and

equitable relief. See Manges v. Seattle-First National Bank, 29

F.3d 1034, 1039 (5th Cir. 1994) (explaining that, in assessing

whether a bankruptcy appeal is moot, the court examines whether a

stay has been obtained, whether there has been substantial

consummation of the plan, and whether the relief requested would
4

affect either the plan’s success or the rights of third parties

not before the court). We therefore decline to consider the

merits of the confirmation order and DISMISS the appeal as moot.

The appellee has moved for damages and costs under Rule 38

of the Federal Rules of Appellate Procedure, claiming that

Shelton’s appeal is frivolous. Although we find that Shelton’s

appeal lacks merit, we decline to deem it frivolous. We therefore

DENY the appellee’s request for damages.

APPEAL DISMISSED.