Unpublished Dispositionin Re Robert A. Shaw, Debtor.shaw Investment Company, Petitioner-appellant, v. E. David Rollert, Richard I. Templeton, Respondents-appellees,david Kipley, Trustee, Trustee-appellee, 865 F.2d 260 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 865 F.2d 260 (6th Cir. 1988) Dec. 19, 1988

Before MILBURN and ALAN E. NORRIS, Circuit Judges, RICHARD F. SUHRHEINRICH, District Judge.* 

ORDER

Appellant Shaw Investment Company (SIC) moves for a stay pending appeal from the district court's order of November 10, 1988 which denied SIC's motion to stay the Bankruptcy Court's order of confirmation of sale of 30,000 shares of SIC stock and granted SIC's motion for entry of final judgment dismissing its appeal in district court (from the bankruptcy confirmation of sale). The respondents, purchasers of the aforementioned stock, have responded in opposition to the motion for a stay.

At the outset, the question arises as to whether SIC is an aggrieved person so as to have standing to appeal. A litigant is an aggrieved person if the order from which he appeals diminishes his property, increases his burdens or impairs his rights. In re El San Juan Hotel, 809 F.2d 151 (1st Cir. 1987); Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir. 1988); In re Fondiller, 707 F.2d 441 (9th Cir. 1983). The question of standing is a question of fact for the district court. El San Juan Hotel, supra.

The district court determined that SIC was not an aggrieved person. The district court found that SIC would not experience a diminishment in property, an increase in burden or an impairment of rights. SIC presents nothing to convince this court that the district court's factual finding that SIC is not an aggrieved party is erroneous. Accordingly, it is concluded that SIC does not have standing to appeal.

Furthermore, it appears that the motion for a stay is now moot. According to 11 U.S.C. § 363(m):

The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to a entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal.

Because appellant did not obtain a stay of the sale in Bankruptcy or district court, reversal by this court of the authorization granted by the Bankruptcy Court (authorization for the trustee to proceed with the sale is evidenced by the order of confirmation) would not affect the validity of the sale of stock. In re The Charter Co., 829 F.2d 1054 (11th Cir. 1987); In re Sax, 796 F.2d 994 (7th Cir. 1986); Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421 (9th Cir. 1985).

Accordingly, the motion for a stay is denied and this appeal is dismissed.

 *

The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation

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