In Re Cheryl Estelle Graham, Also Known As Cheryl Maclin,also Known As Cheryl Miller, Debtor.linda L. Petrino, Appellant, v. Cheryl Estelle Graham, Also Known As Cheryl Maclin, Alsoknown As Cheryl Miller, Appellee, 946 F.2d 901 (10th Cir. 1991)

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US Court of Appeals for the Tenth Circuit - 946 F.2d 901 (10th Cir. 1991) Oct. 11, 1991

Before STEPHEN H. ANDERSON, BARRETT and TACHA, Circuit Judges.

ORDER AND JUDGMENT* 

TACHA, Circuit Judge.


After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Appellant appeals from the district court's affirmance of a bankruptcy court order granting Debtor's Motion to Remove Trustee for cause, pursuant to 11 U.S.C. § 324. On appeal, Appellant argues, inter alia, that because the issues forming the basis for the Debtor's motion were moot, the bankruptcy court should have dismissed the motion as moot, rather than grant the motion. We agree, and reverse the district court's affirmance.

Appellant served as trustee in the Chapter 7 bankruptcy of Debtor. Appellant sent a letter to Debtor's counsel agreeing to withdraw her Motion to Dismiss in this case and a similar motion in another case in exchange for Debtor's counsel's withdrawal of his objection to her attorney's fees application in yet another bankruptcy case. Based on the letter, Debtor filed the motion to remove Appellant as trustee. After the motion was filed and a hearing on the motion was set, Appellant resigned from her duties as trustee in this and other bankruptcy cases. The United States Trustee accepted her resignation.

Thereafter, the district court held a hearing in which the parties and the United States Trustee presented argument. After the hearing, the bankruptcy court entered an order holding that Appellant's offer constituted improper conduct and cause for removal pursuant to § 324. Concluding it was in the best interests of the Debtor, all parties in interest and the bankruptcy process, the bankruptcy court removed Appellant from this case and all pending cases, except those in which a no asset report or final report had been filed. In addition, the bankruptcy court ordered the United States Trustee's office to remove Appellant from the list of approved trustees in Chapter 7 matters.

The district court affirmed the removal, after recognizing that the action of the bankruptcy judge was moot and the appeal was moot. The district court's affirmance was based on a finding of no clear abuse of discretion by the bankruptcy court.

On appeal, Appellant argues that Debtor's motion was rendered moot by her resignation before the bankruptcy hearing on the Motion to Remove Trustee, the United States Trustee's acceptance of the resignation, and the appointment of a successor trustee. Appellant also argues that there is no reasonable expectation that she will serve as trustee in this case or any other cases previously assigned to her.

The exercise of judicial power depends on the existence of a case or controversy. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). " [I]t is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give advisory opinions on moot questions or abstract propositions." In re King Resources Co., 651 F.2d 1326, 1331 (10th Cir. 1980).

Claims, however, are not moot where they are capable of repetition, yet evade review. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The capable of repetition yet evading review doctrine is limited to situations where the challenged action is too short in duration to be fully litigated and there is a reasonable expectation that the same action will occur again. Id.

Because there is no demonstrated probability or reasonable expectation that Appellant will engage in similar conduct in the future, see Society of Professional Journalists v. Secretary of Labor, 832 F.2d 1180, 1185 (10th Cir. 1987), there is no showing that Appellant's conduct is capable of repetition. Appellant's resignation as trustee in this case and all other cases in which she was acting as trustee caused the motion for removal to become moot. Cf. In re Jim's Garage, 118 B.R. 949, 949-50 (Bankr.E.D. Mich. 1989) (bankruptcy court denied motion to remove as moot due to contemporaneous resignation of trustee).

Accordingly, we conclude the district court erred in affirming the bankruptcy court's order granting Debtor's motion for removal. The judgment of the United States District Court for the District of Colorado is REVERSED. The action is REMANDED to the district court for vacatur of the bankruptcy court's order and for remand to the bankruptcy court for dismissal of the motion for removal as moot.

The mandate shall issue forthwith.

 *

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

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