Central WV Dev Corp v. Fry

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 26, 1999
• Docket: 98-1443
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-1443

In Re: CENTRAL WEST VIRGINIA DEVELOPMENT CORPORATION,

Petitioner. _________________________

CENTRAL WEST VIRGINIA DEVELOPMENT CORPORATION,

Plaintiff - Appellant,

versus

LLOYD B. FRY,

Defendant - Appellee,

and

UNITED STATES TRUSTEE; ERROL R. KOHOUN; PAMELA L. KOHOUN,

Parties in Interest.

Appeal from the United States District Court for the Northern Dis- trict of West Virginia, at Clarksburg. Robert Earl Maxwell, Senior District Judge. (CA-97-181-1, BK-97-11776)

Submitted: October 21, 1999 Decided: October 26, 1999 Before WIDENER and TRAXLER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

David Anthony Glance, Fairmont, West Virginia, for Appellant. Jeffrey Alan Kimble, ROBINSON & MCELWEE, Clarksburg, West Virginia; Michael Anthony Staudt, Sidney, Ohio, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

2 PER CURIAM:

Central West Virginia Development Corporation (CWVDC) appeals

from the district court’s order dismissing as moot its appeal from

the bankruptcy court’s order dismissing its petition under Chapter

11 of the bankruptcy code. Because the sole asset owned by CWVDC

has been transferred to Fry and CWVDC has failed to obtain a stay

pending appeal, we grant Fry’s motion to dismiss the appeal as

moot. See 11 U.S.C. § 363(m) (1994); Willemain v. Kivitz, 764 F.2d

1019, 1021-24 (4th Cir. 1985) (holding that sale of property to

secured creditor while appeal was pending rendered appeal moot);

see also In re Stadium Management Corp., 895 F.2d 845, 847 (1st

Cir. 1990) (“absent a stay, the court must dismiss a pending appeal

as moot because the court has no remedy that it can fashion even if

it would have determined the issues differently.”). We deny

CWVDC’s motion to strike Fry’s motion to dismiss the appeal and

grant Fry’s motion to dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid in the decisional

process.

DISMISSED