(caption unavailable)

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 92-9034
_____________________________________
THE ESTATE OF BAYLESS MILTON HESTER, III,
and EVALYNN JORDAN HESTER,
Plaintiffs-Appellants,
VERSUS
FEDERAL DEPOSIT INSURANCE CORPORATION, ET AL.,
Defendants-Appellees.
******
____________________________________
No. 92-9052
_____________________________________
IN THE MATTER OF: BAYLESS MILTON HESTER, III,
a/k/a B.M. HESTER,
Debtor,
ESTATE OF BAYLESS MILTON HESTER, III,
a/k/a B.M. Hester, and
EVALYNN JORDAN HESTER,
Appellants,
VERSUS
NCNB TEXAS NATIONAL BANK/Nations Bank/
FDIC, ET AL.,
Appellees.

-- 1 of 17 --

___________________________
No. 92-9053
___________________________
IN THE MATTER OF: BAYLESS MILTON HESTER, III,
a/k/a B. M. Hester, and
EVALYNN JORDAN HESTER,
Debtors,
BAYLESS MILTON HESTER, III,
a/k/a B. M. Hester, and
EVALYNN JORDAN HESTER,
Appellants,
VERSUS
FEDERAL DEPOSIT INSURANCE CORP.,
Appellee.
*****
___________________________
No. 92-9054
Summary Calendar
___________________________
IN THE MATTER OF: BAYLESS MILTON HESTER and
EVALYNN JORDAN HESTER,
Debtors,
BAYLESS MILTON HESTER and
EVALYNN JORDAN HESTER,
Appellants,
VERSUS
JOHN A. LEONARD, ET AL.,
Appellees.

-- 2 of 17 --

_____________________________________
No. 92-9055
_____________________________________
IN THE MATTER OF: ESTATE OF BAYLESS MILTON HESTER, III
and EVALYNN JORDAN HESTER,
Debtors,
ESTATE OF BAYLESS MILTON HESTER, III,
and EVALYNN JORDAN HESTER,
Appellants,
VERSUS
JOHN LEONARD, ET AL.,
Appellees,
*****
______________________________________
No. 92-9088
_____________________________________
THE ESTATE OF BAYLESS MILTON HESTER, III,
and EVALYNN JORDAN HESTER,
Plaintiffs-Appellants,
VERSUS
FEDERAL DEPOSIT INSURANCE CORPORATION, ET AL.,
Defendants-Appellees.

-- 3 of 17 --

___________________________
No. 93-1020
___________________________
IN THE MATTER OF: ESTATE OF BAYLESS MILTON HESTER, III
a/k/a B.M. Hester and EVALYNN JORDAN HESTER,
Debtors,
ESTATE OF BAYLESS MILTON HESTER, III
a/k/a B.M. Hester and EVALYNN JORDAN HESTER,
Appellants,
VERSUS
NCNB TEXAS NATIONAL BANK,
Bank/Nations Bank/FDIC, ET AL.,
Appellees.
*****
___________________________
No. 93-1042
___________________________
IN THE MATTER OF: BAYLESS MILTON HESTER, III and
EVALYNN HESTER,
Debtors,
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its corporate capacity,
Appellee,
VERSUS
BAYLESS MILTON HESTER, III and
EVALYNN HESTER, Appellants.

-- 4 of 17 --

_____________________________________
No. 93-1043
_____________________________________
IN THE MATTER OF: BAYLESS MILTON HESTER, III
and EVALYNN JORDAN HESTER,
Debtors,
BAYLESS MILTON HESTER, III,
a/k/a B.M. Hester, and
EVALYNN JORDAN HESTER, Appellants,
VERSUS
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its Corporate Capacity,
Appellee.
*****
_____________________________________
No. 93-1044
_____________________________________
IN THE MATTER OF: ESTATE OF BAYLESS MILTON HESTER, III
a/k/a B.M. HESTER, and
EVALYNN JORDAN HESTER,
Debtors,
ESTATE OF BAYLESS MILTON HESTER, III,
a/k/a B.M. Hester, and
EVALYNN JORDAN HESTER, Appellants,
VERSUS
JOHN LEONARD, ET AL.,
Appellants,

-- 5 of 17 --

_____________________________________
No. 93-1068
_____________________________________
EVALYNN JORDAN HESTER and
B.M. HESTER, III, Plaintiffs-Appellants,
VERSUS
FEDERAL DEPOSIT INSURANCE
CORPORATION, ET AL., Defendants-Appellees.
*****
_____________________________________
No. 93-1135
_____________________________________
IN THE MATTER OF: ESTATE OF BAYLESS MILTON HESTER, III
and EVALYNN JORDAN HESTER,
Debtors,
ESTATE OF BAYLESS MILTON HESTER, III,
and EVALYNN JORDAN HESTER, Appellants,
VERSUS
FEDERAL DEPOSIT INSURANCE CORPORATION,
Appellee.

-- 6 of 17 --

_____________________________________
No. 93-1136
_____________________________________
IN THE MATTER OF: ESTATE OF BAYLESS MILTON HESTER, III
and EVALYNN JORDAN HESTER,
Debtors,
ESTATE OF BAYLESS MILTON HESTER, III,
and EVALYNN JORDAN HESTER, Appellants,
VERSUS
FLOYD STYLES,
Appellee.
*****
_____________________________________
No. 93-1137
_____________________________________
IN THE MATTER OF: ESTATE OF BAYLESS MILTON HESTER, III
and EVALYNN JORDAN HESTER,
Debtors,
ESTATE OF BAYLESS MILTON HESTER, III,
and EVALYNN JORDAN HESTER, Appellants,
VERSUS
ST. CLAIR NEWBERN, III, JOHN A. LEONARD
and FLOYD STYLES,
Appellee.
_____________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(7:88 CV 0076 K, et al.)
_______________________________________________
August 31, 1993

-- 7 of 17 --

1 Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
2
Before DAVIS, JONES, and DUHE, Circuit Judges.
PER CURIAM:1
I.
In 1987, Bayless Milton Hester, III (now deceased) and his
wife, Evalynn Jordan Hester (jointly, "Hester"), filed a lender
liability lawsuit against First RepublicBank Wichita Falls, N.A.
and its president. Shortly thereafter, Hester filed a voluntary
Chapter 11 bankruptcy petition. The FDIC, as receiver for the
insolvent First RepublicBank, intervened in the lender liability
suit and removed the case to federal district court.
In April 1991, over Hester's objections, the bankruptcy court
confirmed a reorganization plan (the "Plan"). Among other
provisions, the Plan called for the dismissal with prejudice of
Hester's lender liability suit. Hester appealed the Plan
confirmation. The district court dismissed Hester's appeal for
want of prosecution, and this court affirmed the dismissal.
While Hester's appeal of the plan was pending, the district
court in January 1992 closed the lender liability suit, but gave
Hester the right to reopen the case if the claims were not resolved
in the underlying bankruptcy proceeding. Hester appealed the
dismissal to this court. Hester's appeal of the plan was still
pending before us and we dismissed Hester's appeal from the order
closing her lender liability suit for lack of jurisdiction.

-- 8 of 17 --

3
In March 1992, Hester filed an adversary complaint (styled as
a "Combined Motion to Revoke" the Plan) alleging unspecified frauds
on the part of attorneys and others involved in the bankruptcy case
(the "fraud complaint"). The bankruptcy court, after granting a
motion for more definite statement, eventually dismissed the fraud
complaint with prejudice. The district court affirmed the
dismissal.
The bankruptcy court also sanctioned Hester for violations of
Bankruptcy Rule 9011. The district court affirmed the sanctions
order. In addition, the district court issued several
interlocutory orders aimed at restricting the volume of Hester's
frivolous pleadings. Hester appeals the judgment of dismissal, the
sanctions order and many of the interlocutory orders entered, both
before and after the judgment of dismissal.
II.
Appellees have moved for dismissal of several of Hester's
appeals on the ground that this court lacks jurisdiction. In three
of Hester's appeals, nos. 93-1042, 93-9053, and 93-9054, Hester
seeks to appeal several interlocutory docket control orders, none
of which has been certified for appeal under 28 U.S.C. § 158(d).
Because we lack jurisdiction to review these interlocutory orders,
we grant appellees' motion to dismiss Hester's appeals in these
three cases.

-- 9 of 17 --

4
III.
Several of Hester's appeals involve issues resolved by the
confirmed Plan. A confirmed chapter 11 plan is a final judgment
for purposes of res judicata. Eubanks v. FDIC, 977 F.2d 166 (5th
Cir. 1992). "Any attempt by the parties to relitigate any of the
matters that were raised or could have been raised [in the
bankruptcy court] is barred under the doctrine of res judicata."
In re Baudoin, 981 F.2d 736, 739 (5th Cir. 1993) (italics omitted).
Res judicata applies if: (1) both cases involve the same parties;
(2) the prior judgment was rendered by a court of competent
jurisdiction; (3) the prior decision was a final judgment on the
merits; and (4) the same cause of action is at issue in both cases.
Id. at 740.
Appeals 92-9034, 92-9088, and 93-1068 are barred by res
judicata. These appeals all seek review of the district court's
January 3, 1992 order (and subsidiary orders) closing Hester's
lender liability lawsuit. The Plan resolved the issues underlying
the lender liability suit; the lawsuit was an asset of the estate.
Hester's appeal from Plan confirmation has since been dismissed.
Thus, the final judgment confirming the Plan resolved the issues
Hester brings to us in this appeal. Hester's lender liability
action is therefore clearly barred by res judicata. The appeal is
dismissed as frivolous. We therefore do not reach Hester's other
arguments in these three appeals.
The appeal in 93-1043 is dismissed for the same reason. The
dispute underlying the district court's order closing the case
which is the subject of this appeal was resolved by the order

-- 10 of 17 --

5
confirming the Plan. The claim underlying that order is barred by
res judicata.
IV.
We now address the merits of Hester's remaining claims.
A.
Case 93-1044 is an appeal from an order of the district court
affirming the dismissal of Hester's fraud action against the
attorneys, the trustee and others who participated in perfecting
the Plan. Hester's "Combined Motion" to revoke the Plan alleged
criminal wrongdoing as well as fraud on the part of various
individuals involved in the bankruptcy case. The bankruptcy court
held a hearing, at which Hester appeared to oppose appellees'
motion to dismiss. The court dismissed Hester's criminal
allegations as beyond the scope of bankruptcy jurisdiction,
dismissed Hester's motion to revoke the Plan as untimely under 11
U.S.C. § 1144, and granted appellees' motion for more definite
statement on the fraud claims. Hester refused to amend her
complaint on grounds that to do so would subject her to the
jurisdiction of the court. After nearly sixty days, the court
dismissed the fraud action with prejudice. The district court then
affirmed the dismissal of Hester's fraud action.
Given the history of this litigation, the bankruptcy court and
the district court were justified in dismissing the fraud lawsuit
for Hester's failure to follow court orders. Bankruptcy rule 7009
required Hester to plead her fraud counts with particularity. The
bankruptcy court therefore correctly ordered her to amend her
complaint and comply with this rule. When Hester adamantly

-- 11 of 17 --

6
refused, for a frivolous reason, to follow the court's order, the
bankruptcy court did not err in dismissing her complaint.
B.
Appeal 92-9055 challenges the district court's order affirming
Bankruptcy Rule 9011 sanctions assessed against Hester. In
addition, Hester challenges six orders of the district court in
this appeal: (1) a November 20, 1992 order overruling Plan
Administrator Floyd Styles's motion to combine appeals; (2) a
November 13, 1992 order denying Hester's motion to file a reply;
(3) a November 19, 1992 order mooting Hester's motion to object to
the FDIC's appearance in appeals of the fraud action; (4) a
November 19, 1992 order mooting Hester's motion to reply to the
FDIC's response to a motion to postpone rulings; (5) a November 19,
1992 order mooting Hester's motion to reply to the FDIC's response
to a motion to transfer the case; and (6) a November 3, 1992 order
requiring Hester to obtain leave of the court before filing
pleadings in the district court.
Following the dismissal of Hester's fraud action, the
bankruptcy court held a hearing on appellees' request for
sanctions. Hester did not appear at the hearing to contest the
sanctions request. The bankruptcy court ordered Hester to
reimburse appellees $17,150.50 for their costs of contesting the
fraud suit and further enjoined Hester from filing additional pro
se claims in the bankruptcy court without prior leave of the court.
The district court affirmed, noting that Hester's failure to
contest sanctions below was a procedural default. In addition, the
court found no abuse of discretion in the sanctions order, given

-- 12 of 17 --

2 Some idea of the volume of the paper Hester filed in the
district court is captured by the following statement in the
district court's order:
Litigant Hester has made 32 submissions to this court
this past week seeking appellate relief which add to the
16 appeals presently pending and do not include those
appeals which have already been disposed. This multitude
of appeals, written by a prolific pro se litigant Hester,
are an unwarranted drain on the court's resources. No
litigant has the right to monopolize judicial resources
7
Hester's admission that some of the allegations in her Combined
Motion were well beyond the bankruptcy court's jurisdiction.
We agree with the district court that the bankruptcy court did
not abuse its discretion in sanctioning Hester. Hester's complaint
raised several issues that had been fully adjudicated in prior
proceedings and other issues that were clearly beyond the
bankruptcy court's jurisdiction. Those allegations were clearly
frivolous, even for a pro se litigant. The sanctions order, which
Hester did not contest in the bankruptcy court, was reasonably
calculated to deter Hester's abuses of the judicial process. See
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); Doering v.
Union Cty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.
1988).
The November 3, 1992 order required Hester to obtain prior
leave of the court before she could file pleadings in the district
court. The order, in the form of an injunction issued pursuant to
the All Writs Act (28 U.S.C. § 1651), is within the district
court's power "to enjoin litigants who are abusing the court system
by harassing their opponents." Harrelson v. United States, 613
F.2d 114, 116 (5th Cir. 1980). Given the volume of Hester's
frivolous pleadings,2 the district court did not abuse its

-- 13 of 17 --

and thus indirectly obstruct other litigants asserting
good faith claims and no other litigant in this court
requires such special consideration.
3 These appeals also complain of a number of subsidiary
orders: (1) an October 23, 1992 order dismissing Hester's
interlocutory appeal from a show cause order entered after Hester
refused to turn over the tax records; (2) a November 3, 1992 order
restricting Hester's future filings in the district court; (3) a
November 16, 1992 order denying Hester's motion for leave to file
a brief in her appeal of the contempt order; (4) a November 20,
1992 order granting appellee's motion to combine appeals; (5) a
December 3, 1992 order denying Hester's motion to transfer
proceedings to Judge Robinson; (6) a December 8, 1992 order
clarifying the district court's November 3 order; (7) a December
17, 1992 order prescribing filing instructions; and (8) a December
3, 1992 order denying Hester's motion to postpone rulings in the
case.
8
discretion in enjoining Hester from future filings without leave of
the court. See Winslow v. Romer, 759 F. Supp. 670 (D. Colo. 1991).
The remaining orders Hester complains of in this appeal are
discretionary orders of the district court. We have reviewed those
orders and find no error.
C.
Appeals 92-9052 and 93-1020 (consolidated) focus on a final
order of the bankruptcy court holding Hester in contempt for
failing to turn over tax records to the Plan Administrator. Hester
complains primarily of the following orders: (1) a December 21,
1992 order dismissing for want of prosecution Hester's appeal from
the bankruptcy court's contempt order; and (2) a January 21, 1993
memorandum opinion and order affirming the bankruptcy court's order
to turn over tax records.3
Hester's lack of diligence in filing a proper brief justified
the district court's dismissal of her appeal from the contempt

-- 14 of 17 --

9
order. Bankruptcy Rule 8009 grants an appellant 15 days to file a
brief after the appeal is docketed. Hester filed her motion for
leave to file an appellate brief on November 10, 1992, after the
deadline for filing a brief had passed. The district court denied
Hester's motion on November 16, not because the motion was
untimely, but because Hester's brief, which contained rambling,
irrelevant assertions, rehashed arguments on issues previously
decided and did not adequately address the narrow issue on appeal.
Hester did not seek leave of the court to file another brief. On
December 21, the district court dismissed Hester's appeal for want
of prosecution. The district court did not abuse its discretion in
either refusing to accept Hester's noncomplying brief or in
dismissing her appeal.
The January 21, 1993 memorandum opinion and order affirmed the
bankruptcy court's order directing Hester to turn over the 1989
estate tax return to Floyd Styles, the Plan Administrator.
Although Hester objected in writing to the motion to turn over
property, she failed to appear in court to prosecute her objection.
The district court concluded that Hester failed to meet her burden
on appeal to show that the bankruptcy court committed prejudicial
error in ordering the tax return turned over to Styles.
We find no abuse of discretion on the part of the district
court in affirming the order to turn over tax records. Hester's
chief argument against the order is that the bankruptcy court had
no jurisdiction to enter the turnover order, because a stay of the
reorganization plan was in effect on the date of the hearing, June
9, 1992. However, as the district court pointed out, the temporary

-- 15 of 17 --

10
ex parte stay granted on July 24, 1991 was in the nature of a
temporary restraining order. A TRO granted without a hearing
expires in ten days. Fed. R. Civ. P. 65. Thus, no stay was in
effect at the time of the turnover hearing, and the turnover order
was valid.
The remaining orders complained of in this appeal are attempts
by the district court to maintain control over its docket in the
face of voluminous rambling, incoherent pleadings from Hester. So
far, Hester has filed some thirty-five appeals in the district
court and twenty-one appeals in this court. Contrary to Hester's
assertions, the orders do not bar Hester's access to the federal
courts. Rather, the orders are an appropriate exercise of the
district court's discretion to manage its caseload and to prevent
repetitious pleadings. See Harrelson v. United States, 613 F.2d
114 (5th Cir. 1980); Ketchum v. Cruz, 961 F.2d 916, 921 (10th Cir.
1992); Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512 (11th
Cir. 1991); and In re Martin-Trigona, 763 F.2d 140 (2d Cir. 1985),
cert. denied, 474 U.S. 1061 (1986). The district court did not err
in issuing the orders.
D.
In appeals 93-1135, 93-1136 and 93-1137, Hester complains of
discretionary rulings by the bankruptcy court which were affirmed
by the district court. All of these rulings were well within the
broad discretion granted the bankruptcy court, and the district
court did not err in affirming those orders. Therefore, the orders
appealed from in all of these cases are affirmed.

-- 16 of 17 --

11
V.
For the reasons stated above, we dismiss appeals 93-1042, 92-
9053, and 92-9054 for lack of appellate jurisdiction; we dismiss
appeals 93-1043, 92-9034, 92-9088, and 93-1068 as frivolous; and we
affirm the orders of the district court in appeals 93-1044, 92-
9055, 92-9052, 93-1020, 93-1135, 93-1136, and 93-1137.
Most of these appeals are completely lacking in merit and/or
are from orders that are non-appealable. But in light of Hester's
pro se status we decline to impose monetary sanctions. We do,
however, cast Hester for double costs under Federal Rule of
Appellate Procedure 38. See Garza v. Westergren, 908 F.2d 27 (5th
Cir. 1990); George v. State of Texas, 788 F.2d 1099 (5th Cir.),
cert. denied, 479 U.S. 866 (1986). This court will not tolerate
further frivolous appeals from Hester that unreasonably and
vexatiously multiply this proceeding. We caution Hester that any
further frivolous appeals will draw substantial sanctions.
In light of our disposition of these appeals, all outstanding
motions filed by Hester are denied.

-- 17 of 17 --