ANR v. C.O.P. Coal Development et al

Filing 30

MEMORANDUM DECISION and ORDER granting 21 Motion to Dismiss Appeal as Moot. Signed by Judge Ted Stewart on 05/02/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ANR COMPANY, INC.
Appellant,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
DISMISS APPEAL AS MOOT

v.
KENNETH A. RUSHTON, Trustee, et al.,

Case No. 2:10-CV-79 TS

Appellees.

This matter is before the Court on appellee Kenneth A. Rushton, Chapter 7 Trustee of the
Estate of C.W. Mining Company (“Trustee”) and Interested Parties Rhino Energy LLC (“Rhino”)
and Castle Valley Mining LLC’s (“Castle Valley”) Joint Motion for Dismissal of Appeal as
Moot.1 For the reasons discussed more fully below, the Court will grant the Motion.
I. BACKGROUND
This dispute arises out of the involuntary Chapter 7 bankruptcy proceedings of C.W.
Mining Company (“CWM”). Before entering bankruptcy, CWM was in the business of mining
coal. In September of 1999, ANR Company, Inc. (“ANR”) entered into a Coal Operating
Agreement (the “ANR Agreement”) with CWM. Pursuant to the ANR Agreement, ANR gave
1

Docket No. 21.
1

CWM the right to mine coal on ANR’s property located in Carbon County. This property was
located adjacent to an underground mine CWM was then mining known as the Bear Canyon
Mine.
During September of 1999, CWM also entered into a Logical Mining Unit Agreement
(“LMU Agreement”) with ANR, C.O.P. Coal Development Company, and Hiawatha Coal
Company, Inc. (“Hiawatha”). Pertinent to this appeal, the LMU Agreement contained the
following clause: “This agreement may be terminated by any party upon sixty (60) days written
notice to the other parties and will automatically terminate upon the expiration of the Coal
Mining Lease between ANR and Hiawatha. . . . Termination of this agreement shall also
terminate the Coal Operating Agreement between ANR and CWM.”2 The LMU Agreement
further provided that termination of the LMU Agreement would automatically terminate the
ANR Agreement. Both parties agree that the LMU Agreement terminated no later than April 10,
2001.3
The bankruptcy court found that the ANR Agreement was “re-executed by the relevant
parties after April 10, 2001 but before April 20, 2001.”4 Based on this determination, the
bankruptcy court further found that (1) the ANR Agreement was not in default; (2) the ANR
Agreement remained in full force and effect as of the petition date; and (3) the ANR Agreement
is a separate agreement from the LMU Agreement. The bankruptcy court specifically found that

2

Docket No. 26 Ex. A, at 2.

3

See Docket No. 23 Ex. 1, at 6.

4

Id. at 7.
2

the LMU Agreement was not re-executed and held that “the LMU Agreement is ineffective and
nonbinding on this estate or any assignee of the Trustee.”5
Pursuant to the above, the bankruptcy court entered a sale order (the “Sale Order”) on
August 4, 2010, which specifically incorporated the ANR Agreement as one of CWM’s assets.6
The Sale Order provided for the purchase by Rhino of virtually all of CWM’s assets for a total
purchase price of $15 million. No party to the underlying bankruptcy proceedings sought a stay
of the Sale Order and, thus, the assets were conveyed on August 25, 2010.7 Since that time,
Rhino and Castle Valley have expended substantial money and time in seeking to make the assets
of the CWM estate productive.
The parties dispute the following issues ANR raises in this appeal:
1.

2.

...
4.

5.

6.

Whether the [bankruptcy court] erred in granting the Trustee’s specific
prayer for relief that the LMU [A]greement is ineffective and nonbinding
on this estate or any assignee of the Trustee under §§ 365 or 363.
Whether the [bankruptcy court] erred in finding that the ANR . . .
Agreement was re-executed by the relevant parties after April 10, 2001 but
before April 20, 2001.
Whether the [bankruptcy court] erred in concluding that the ANR . . .
Agreement is a separate agreement that remained in full force and effect as
of the petition date.
Whether the [bankruptcy court] erred in concluding that re-executing of
the ANR . . . Agreement renewed and ratified it independently of the LMU
Agreement.
Whether the [bankruptcy court] erred in concluding that no basis exists for
resurrecting the terminated LMU Agreement.

...
5

Id. at 11.

6

In re C.W. Mining Company, No. 08-20105 at Docket No. 1558.

7

The assets were actually conveyed to Castle Valley, a wholly-owned subsidiary of Rhino.
3

8.

9.
10.

11.

12.
...
14.

Whether the [bankruptcy court] erred in concluding that the ANR . . .
Agreement was not void upon its inception and did not otherwise
terminate between the time of its re-execution and the petition date.
Whether the [bankruptcy court] erred in concluding that the parties did not
mutually abandon the ANR . . . Agreement.
Whether the [bankruptcy court] erred in concluding that [CWM] did not
breach the ANR . . . Agreement when it did not perform any of its duties
under the agreement.
Whether the [bankruptcy court] erred in concluding that the execution of a
duplicate original of the ANR Lease, as an exhibit to the LMU Agreement,
created a new agreement independent of the LMU Agreement.
Whether the [bankruptcy court] erred in denying ANR’s Motion for Partial
Summary Judgment on [the] ANR Lease.
Whether the [bankruptcy court] erred in finding the ANR [] Agreement
enforceable against ANR when . . . [CWM] had no mining permit to mine
the ANR property and could not possibly comply with the terms of the
agreement.8
II. DISCUSSION

The Trustee and Interested Parties assert that the Court is without jurisdiction to
determine this appeal (1) because the relief sought by ANR seeks to upset the sale of the ANR
Agreement to Rhino in contravention of the mootness doctrine found in 11 U.S.C. § 363(m) and
(2) because, even if the Court finds § 363(m) inapplicable, the Court should apply the doctrine of
equitable mootness and dismiss ANR’s appeal.
A.

11 U.S.C. § 363(m)
The Trustee and Interested Parties assert that this appeal is moot under § 363(m) because

(1) the ANR Agreement was included in the sale to a good faith purchaser, (2) ANR did not seek
a stay of the Sale Order, and (3) a ruling for ANR in this appeal would affect the validity of the

8

Docket No. 2, at 3-4.
4

Sale Order. ANR contends that § 363(m) does not apply to this appeal because ANR is not
seeking to invalidate or overturn the sale of the mining assets to Rhino; rather, it seeks “only the
relief the Court has power to award.”9
Subsection 363(m) provides:
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 an 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.
Here, ANR does not dispute that Rhino is a good faith purchaser. It is also undisputed
that ANR did not seek to stay the Sale Order. Thus, “[t]he mootness question turns on what
relief is available to [ANR] if it were to prevail in this appeal.”10 “[Section] 363(m) forecloses
any remedy . . . that would affect the validity of the trustee’s sale. But it does not preclude a
remedy that would not affect the validity of the sale.”11 Furthermore, “[t]he burden of showing
mootness is on the trustee, which here means showing that [ANR] would not have such a
remedy.”12

9

Docket No. 25, at 2.

10

C.O.P. Coal Dev. Co. v. C.W. Mining Co. (In re C.W. Mining Co.), 641 F.3d 1235, 1239
(10th Cir. 2011) (citing Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (noting
that appeal should be dismissed as moot if it is “impossible for the court to grant any effectual
relief whatever”) and Osborn v. Durant Bank & Trust Co. (In re Osborn), 24 F.3d 1199, 1203
(10th Cir. 1994) (holding “that because it is not impossible for the court to grant some measure
of effective relief, the Osborns’ appeal is not moot”)).
11

Id.

12

Id.
5

Through this appeal, ANR seeks to overturn the bankruptcy court’s findings: (1) that the
ANR Agreement was a separate agreement from the LMU Agreement; (2) that the ANR
Agreement remained in full force and effect; and (3) that CWM was not in default of the ANR
Agreement. The Trustee and Interested Parties properly assert that the Sale Order was premised
on each of the above listed findings. Thus, the Court could not grant the requested relief and
overturn said findings without affecting the validity of the Sale Order.
ANR contends that “[t]he appropriate remedy for several of the other issues in this appeal
may also be in the form of equitable relief.”13 However, the only equitable relief ANR seeks is
declaratory relief relating to the terms of the LMU Agreement that were not included in the
bankruptcy court’s interpretation of the ANR Agreement. Any such declaratory relief would
necessarily call into question the bankruptcy court’s interpretation of the ANR Agreement and,
therefore, would affect the validity of the Sale Order.
In sum, because the relief ANR seeks in this appeal would necessarily affect the validity
of the Sale Order, the Court finds that the Trustee has met his burden to establish mootness under
§ 363(m). For this reason, the Court is without jurisdiction to hear ANR’s appeal.
B.

EQUITABLE MOOTNESS
As an alternative ground for granting the instant Motion, the Court will consider whether

this appeal is moot under the doctrine of equitable mootness. “The equitable mootness doctrine

13

Docket No. 25, at 7.
6

allows a court to decline to hear a bankruptcy appeal, even when relief could be granted, if
implementing the relief would be inequitable.”14
As a threshold issue, it must be determined whether the doctrine of equitable mootness is
applicable in the context of a Chapter 7 bankruptcy proceeding.
The Tenth Circuit formally adopted the doctrine of equitable mootness in the case of In re
Paige.15 “Paige, like almost all cases in which the doctrine of equitable mootness has been
invoked, involved a confirmed Chapter 11 reorganization plan that had been substantially
consummated.”16 In C.O.P. Coal Dev. Co. v. C.W. Mining Co. (In re C.W. Mining Co.),17 the
Tenth Circuit declined to reach the issue of whether the equitable mootness doctrine applies to
Chapter 7 proceedings.
The equitable mootness doctrine allows a court to decline to hear a bankruptcy
appeal, even when relief could be granted, if implementing the relief would be
inequitable. We have adopted this doctrine in the context of Chapter 11
reorganization plans, but we have not applied it in the Chapter 7 setting. Even if
it does apply, we are not required to do so as it is discretionary with the court.
Rather than decide whether the doctrine can be applied, and, if so, weigh the
doctrine’s six factors in this case in the face of an underdeveloped record on this
issue, we think the better and more appropriate course is to resolve this appeal on
the merits. 18

14

C.O.P. Coal, 641 F.3d at 1239-40 (internal citation omitted).

15

584 F.3d 1327 (10th Cir. 2009).

16

C.W. Mining Co. v. Aquila, Inc. (In re C.W. Mining Co.), 431 B.R. 307, 2009 WL
4798264, at *4 (10th Cir. BAP 2009), rev’d on other grounds, 636 F.3d 1257 (10th Cir. 2011).
17

C.O.P. Coal, 641 F.3d 1235.

18

Id. at 1239-40 (citing Paige, 548 F.3d at 1335-38 n.7).
7

In both Paige and C.O.P. Coal, the Bankruptcy Appellate Panel for the Tenth Circuit
(“BAP”) and the Tenth Circuit Court of Appeals declined to apply the doctrine of equitable
mootness in favor of reaching the merits of the subject appeals. However, the holdings and
rationale of those cases do not appear to stand for the proposition—as ANR would have this
Court believe—that equitable mootness definitively does not apply to Chapter 7 bankruptcy
appeals.
While the Tenth Circuit has yet to apply the equitable mootness doctrine to a Chapter 7
bankruptcy, other courts have applied equitable mootness in the liquidation context. For
example, the Ninth Circuit has applied the equitable mootness doctrine in both Chapter 719 and
Chapter 13 liquidation proceedings.20 The Ninth Circuit is not alone, as other circuits have
applied the equitable mootness doctrine in the context of Chapter 7 bankruptcies in the same
manner and based on the same policy considerations as Chapter 11 proceedings.21 Indeed, when
confronted with this issue, no circuit has affirmatively held equitable mootness inapplicable.22
19

Fitzgerald v. Ninn Worx Sr, Inc. (In re Fitzgerald), 428 B.R. 872 (9th Cir. BAP 2010).

20

Id. at 881 (citing Suter v. Goedert, 504 F.3d 982, 987 (9th Cir. 2007)).

21

See Hicks, Muse & Co., Inc. v. Brandt (In re Healthco Int’l, Inc.), 136 F.3d 45 (1st Cir.
1998); Drawbridge Special Opportunities Fund v. Shawnee Hills, Inc. (In re Shawnee Hills,
Inc.), 125 F. App’x 466 (4th Cir. 2005) (unpublished) (holding that bank’s appeal of district
court’s ruling that bank had to honor Chapter 7 debtor-employer’s prepetition payroll checks was
equitably moot, where hundreds of employees had already cashed their checks, bank had failed to
seek stay of bankruptcy court’s order requiring bank to honor checks, and a reversal of that order
would substantially affect the equitable relief granted and could significantly impact the
third-party employees, who were not parties to the appeal and had received no notice that bank
might seek to compel them to disgorge their wages).
22

See In re San Patricio Cnty. Cmty. Action Agency, 575 F.3d 553, 558 (5th Cir. 2009)
(holding that “[i]t is certainly arguable that equitable mootness has no application to an appeal in
8

After thorough review of the relevant case law, the Court is persuaded that equitable
mootness should apply.23 In keeping with those circuits that have applied equitable mootness to
Chapter 7 proceedings, the Court will adopt the same approach taken when applying equitable
mootness to Chapter 11 proceedings.
The Tenth Circuit has set out the following six-part test for determining whether an
appeal is equitably moot:
(1) Has the appellant sought and/or obtained a stay pending appeal? (2) Has the
appealed plan been substantially consummated? (3) Will the rights of innocent
third parties be adversely affected by reversal of the confirmed plan? (4) Will the
public-policy need for reliance on the confirmed bankruptcy plan—and the need
for creditors generally to be able to rely on bankruptcy court decisions—be
undermined by reversal of the plan? (5) If appellant’s challenge were upheld, what
would be the likely impact upon a successful reorganization of the debtor? And
(6) based upon a quick look at the merits of appellant’s challenge to the plan, is
appellant’s challenge legally meritorious or equitably compelling? These six
factors are not necessarily conclusive, nor will each factor always merit equal
weight.24
The Court will address each of the six factors in turn.

a Chapter 7 liquidation,” but indicating that there was no need to make such a comprehensive
statement about equitable mootness in that case because “under traditional equitable mootness
analysis, [the] case [was] not moot”); see also In re Anthanassious, 418 F. App’x 91, 94 n.3 (3d
Cir. 2011) (unpublished).
23

The Court would further note that this approach is supported by the facts of Paige. As
the Tenth Circuit noted, the trustee in that case “was initially appointed as the Chapter 7 Trustee.
However, after filing under Chapter 7, the debtor requested that the court convert his Chapter 7
filing into a Chapter 11 filing, and the bankruptcy court granted that motion. [The Trustee]
subsequently moved to convert the case back to Chapter 7, but the bankruptcy court denied that
motion. However, the court subsequently granted [the Trustee]’s motion to become the Chapter
11 trustee.” Paige, 584 F.3d at 1331 n.2. Thus, Paige involved a proceeding that in many ways
resembled a Chapter 7, rather than a Chapter 11 bankruptcy.
24

Id. at 1337-39.
9

1.

STAY

“The first question in an equitable mootness inquiry is whether the appellant
secured a stay to prevent execution of the reorganization plan.” This inquiry
really involves two questions: (1) Did the party seeking reversal try to obtain a
stay? (2) Assuming the party seeking reversal sought a stay, was that party
successful in obtaining a stay pending appeal?25
The Tenth Circuit has instructed that “both of these questions are significant.”26 “On the one
hand, an appellant’s complete and unjustified failure to seek a stay will often make it unfair for
the court to grant relief—especially if that relief may affect third parties.”27 “On the other hand,
[the Court] will be more inclined to accommodate an appellant who has diligently but
unsuccessfully pursued a stay pending appeal, even if awarding him relief may adversely affect
third parties.”28 “Thus, [the Court] will not only look to whether a stay has been obtained; [but]
will also inquire into whether the appellant has sought a stay pending appeal.”29

25

Id. at 1341 (quoting United States ex rel. FCC v. GWI PCS 1 Inc. (In re GWI PCS 1
Inc.), 230 F.3d 788 (5th Cir. 2000)).
26

Id.

27

Id. (citing Trone v. Roberts Farm, Inc. (In re Roberts Farms, Inc.), 652 F.2d 793, 798
(9th Cir. 1981) (“An entirely separate and independent ground for dismissal has also been
established because Appellants have failed and neglected diligently to pursue their available
remedies to obtain a stay of the objectionable orders of the Bankruptcy Court and have permitted
such a comprehensive change of circumstances to occur as to render it inequitable for this court
to consider the merits of the appeal.”)).
28

Id. (citing Deutsche Bank AG v. Metromedia Fiber Network, Inc. (In re Metromedia
Fiber Network, Inc.), 416 F.3d 136, 144 (2d Cir. 2005) (stating that “[w]e insist that a party seek
a stay even if it may seem highly unlikely that the bankruptcy court will issue one”)).
29

Id.
10

Here, it is undisputed that ANR did not seek a stay of either the Sale Order or, indeed, of
any order of the bankruptcy court giving rise to this appeal. Because ANR failed to take any
action in this regard, this factor weighs in favor of finding this appeal equitably moot.
2.

SUBSTANTIAL CONSUMMATION

“The second consideration in the mootness inquiry is whether the reorganization plan has
been substantially consummated.”30 “In determining whether a plan has been substantially
consummated, [the Court will] apply the Bankruptcy Code’s three-part definition.”31
The Bankruptcy Code defines “substantial consummation” of a reorganization
plan as:
“(A) transfer of all or substantially all of the property proposed by the plan to be
transferred;
(B) assumption by the debtor or by the successor to the debtor under the plan of
the business or of the management of all or substantially all of the property dealt
with by the plan; and
(C) commencement of distribution under the plan.”32
The very nature of a sale order in a liquidation proceeding contemplates such actions
provided in the Bankruptcy Code’s definition of “substantial consummation.” Once a sale order
becomes effective, it is contemplated that there will be a transfer of all or substantially all of the
property and a commencement of distribution. Unlike the majority of reorganization plans, the
assets are not restructured; rather, they are liquidated. In this case, CWM’s assets were sold to
Rhino for $15,000,000.

30

Id.

31

Sutton v. Weinman (In re Centrix Fin. LLC), 394 F. App’x 485, 487 (10th Cir. 2010)
(unpublished).
32

Paige, 584 F.3d at 1341-42 (quoting 11 U.S.C. § 1101(2)).
11

In this action, the Trustee and Interested Parties assert that this transaction has been
substantially consummated because: “Payments have been made, possession and control of
highly regulated properties have been assumed, millions of dollars of equipment and repairs have
been ordered, people have been hired, and extensive work has already gone into preparing to
mine coal.”33 ANR contends that it is of no consequence that the Sale Order is substantially
consummated because it is not seeking to unravel the sale; rather, it is seeking intermediate relief
that only represents a small percentage of the CWM estate.34
The intermediate relief that ANR seeks is the interpretation of the ANR Agreement.
Rhino indicates that it relied upon the bankruptcy court’s interpretation of the ANR Agreement
in agreeing to purchase the CWM estate. Thus, were ANR granted the relief it seeks—a differing
interpretation of the ANR Agreement—it could affect the validity of the Sale Order. The
intermediate relief, if granted, would at the very least call into question the validity of a portion
of the Sale Order and possibly require the unwinding of that portion of the Sale Order.
Therefore, ANR’s assertion that it is not seeking any relief in this appeal that would affect the
Sale Order is disingenuous. For this reason, the Court finds ANR’s defense on this factor
unpersuasive and this factor weighs in favor of the Court finding this appeal equitably moot.

33

Docket No. 22, at 21 (citing Docket No. 23 Exs. 5, 6).

34

See Docket No. 25, at 15.
12

3.

EFFECT ON THIRD-PARTIES

“The effects that reversal will have on non-party creditors is probably the foremost
concern in [the Court’s] analysis of equitable mootness.”35
It is because of this factor that Rhino and Castle Valley have intervened in this Motion.
As interested parties—the purchasers of the CWM mining estate—both Rhino and Castle Valley
are concerned with how this Court’s ruling may impact property they have rightfully purchased
and invested substantial sums in maintaining and developing. After expending said considerable
sums of money and time in reliance on the Sale Order, Rhino and Castle Valley are compelled to
defend the assets they purchased. It is the rights of Rhino and Castle Valley, along with those
creditors who stand to receive payout from the amounts paid by Rhino and Castle Valley, with
which this Court is most concerned.
Because Rhino, Castle Valley, and other creditors stand to lose the value of their
exchange through this appeal, this factor weighs in favor of finding this appeal equitably moot.
4.

PUBLIC POLICY

“This factor ‘reflects a court’s concern for striking the proper balance between the
equitable considerations of finality and good faith reliance on a judgment and the competing

35

Paige, 584 F.3d at 1343 (quoting Wooley v. Faulkner (In re SI Restructuring, Inc.), 542
F.3d 131, 136 (5th Cir. 2008) (“The ultimate question to be decided is whether the Court can
grant relief without undermining the plan and, thereby, affecting third parties.”)).
13

interests that underlie the right of a party to seek review of a bankruptcy court order adversely
affecting him.’”36
In [Paige], [the Tenth Circuit] acknowledged that “completed acts in accordance
with an unstayed order of the bankruptcy court must not thereafter be routinely
vulnerable to nullification if a plan of reorganization is to succeed.” And [further]
found it “equally important that a court not reverse a bankruptcy plan if an
appellate reversal . . . would create a nightmarish situation for the bankruptcy
court on remand and make reconstructive relief extremely improbable.” But [the
Tenth Circuit] also considered the seriousness of the appeal allegations as a
“countervailing concern” that could weigh against a determination of equitable
mootness.37
As has been discussed previously, Rhino, Castle Valley, and CWM’s creditors have an
interest in the finality of the unstayed Sale Order. They have exercised good faith reliance on the
Sale Order being a valid judgment of the bankruptcy court entitling them to the proceeds for
which they have provided value or, in the case of the creditors, for which they are owed for past
value provided. While cognizant of ANR’s right to seek review of the bankruptcy court’s
orders—which, undoubtedly, have an effect on ANR—here, the Court is persuaded that ANR, in
a delinquent fashion, is seeking a second day in Court.
Furthermore, the issues raised in this appeal are not “troubling allegations” of bad faith
dealings or a lack of disinterestedness on the part fo the Trustee.38 The majority of issues raised

36

Id. at 1347 (quoting First Union Real Estate Equity & Mortg. Inv. v. Club Assocs. (In re
Club Assocs.), 956 F.2d 1065, 1069 (11th Cir. 1992)).
37

In re Centrix, 394 F. App’x at 492 (quoting Paige, 584 F.3d at 1347).

38

Paige, 584 F.3d at 1347 (“[T]here are countervailing concerns that outweigh the public
policy interest in finality of bankruptcy court decisions in this case. [Appellant] raises troubling
allegations of bad-faith dealings between the debtor . . . and the trustee, and of a lack of
disinterestedness on the part of the trustee.”).
14

by ANR relate to the bankruptcy court’s interpretation of the ANR and LMU Agreements.
Allegations of faulty contract interpretation are not of themselves troubling allegations that
“bring to light some issue that [speaks] to the integrity of the bankruptcy process.”39 For these
reasons, the Court find this factor weighs heavily in favor of finding this appeal equitably moot.
5.

IMPACT ON NEW REORGANIZATION

“The fifth factor a court should consider in determining whether an appeal is equitably
moot is the impact of reversal upon the likelihood of a new, successful reorganization.”40
Here, the Trustee and Interested Parties have presented evidence that if the Sale Order
were reversed it is unlikely the same value could once more be recuperated from the CWM
assets. The coal operating agreements, which constitute the majority of the CWM estate
purchased by Rhino, require that the property be continuously mined. The Trustee has attested
that if the sale were reversed he would be unable to comply with this requirement. Though not
necessarily relevant on this factor, Rhino has expended significant sums of money bringing the
estate in compliance with the continuous operations clause and making the CWM mines once
more operational and productive.
Here, ANR would have the Court believe that the removal of its coal operating agreement
would not reduce the value of the CWM estate or otherwise affect the sale. ANR does not
dispute that, were the sale to be unwound, it would be highly unlikely that a comparable sale

39

Id.

40

In re Centrix, 394 F. App’x at 493.
15

could be made. Therefore, the Court finds that this factor weighs in favor of finding this appeal
equitably moot.
6.

MERITS

“The final factor in evaluating whether an appeal is equitably moot involves a ‘quick look
at the merits of appellant’s challenge to the plan’ to determine if it is ‘legally meritorious or
equitably compelling.’”41
Here, the Trustee and Interested Parties assert that “ANR’s appeal of the ANR Order is
close to frivolous.”42 ANR does not rally any defense to counter this characterization. Though
without sufficient information to make a definite determination whether this appeal is
meritorious, the Court would note that ANR’s claims do not appear to be substantively
compelling. Therefore, this factor weighs in favor of finding the appeal equitably moot.
7.

CONCLUSION

In sum, the Court finds that review of the above factors supports a finding that this appeal
is equitably moot.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Trustee, Rhino, and Castle Valley’s Joint Motion for Dismissal of
Appeal as Moot (Docket No. 21) is GRANTED. The Clerk of Court is directed to close this case
forthwith.

41

Id. at 493-94 (quoting Paige, 584 F.3d at 1339).

42

Docket No. 22, at 23.
16

DATED May 2, 2012.
BY THE COURT:

______________________________
TED STEWART
United States District Judge

17