                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                                                            FILED
                    ________________________
                                                   U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                           No. 07-15326                  JULY 1, 2008
                       Non-Argument Calendar          THOMAS K. KAHN
                     ________________________              CLERK

         D. C. Docket No. 07-00236-CV-J-33 & 05-BK-03817-JAF
In Re:
                    WINN-DIXIE STORE, INC., Debtor,
_________________________________________________________________

LIQUIDITY SOLUTIONS, INC.,
E&A FINANCING II, L.P.,
E&A SOUTHEAST, L.P.,
SHIELDS PLAZA, INC.,
WOODBERRY PLAZA (E&A), L.L.C.,
VILLA RICA RETAIL PROPERTIES, LLC,
HALPERN ENTERPRISES, INC.,
BANK OF AMERICA, as Trustee,

                                           Plaintiffs-Appellants,
ORIX CAPITAL MARKETS, LLC,
CWCAPITAL ASSET MANAGEMENT, LLC,

                                           Plaintiffs,
                               versus
WINN-DIXIE STORES, INC.,
ASTOR PRODUCTS, INC.,
CRACKIN’ GOOD, INC.,
DEEP SOUTH DISTRIBUTORS, INC.,
DEEP SOUTH PRODUCTS, INC., et al.,

                                           Defendants-Appellees.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (July 1, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

      Appellants are landlords of several of the Appellees Winn-Dixie Stores, Inc.

(“Winn-Dixie”) and its affiliated companies. Appellants held guaranteed,

prepetition claims against debtor Winn-Dixie. These claims were extinguished as

part of a settlement among Winn-Dixie’s creditors that was memorialized in Winn-

Dixie’s Chapter 11 reorganization plan in its bankruptcy proceedings. In this

appeal, Appellants challenge the district court’s dismissal of their consolidated

appeal of the bankruptcy court’s Confirmation Order of Winn-Dixie’s

reorganization plan and the court’s order related to the guaranteed claims. The

appeal was dismissed on grounds of equitable mootness because the district court

determined that it was unable to afford the Appellants relief, in part, because the

plan had already been substantially consummated and the Appellants had failed to

seek a stay of the Confirmation Order. Appellants now seek to reverse the district

court’s finding of mootness and to reinstate their appeal so that it may be heard on

                                          2
the merits by the district court. Finding that the district court appropriately

determined that the consolidated appeal had been equitably mooted, we affirm.

                                     I. FACTS

      Winn-Dixie filed a petition for reorganization under Chapter 11 of the

Bankruptcy Code on February 21, 2005. At the time of filing, the company had

more than one billion dollars worth of prepetition obligations to various

creditors—including, among these, the Appellant landlords. The Appellants are

those who, among the larger pool of Winn-Dixie’s landlords, had prepetition

“guaranteed” claims, whereas other landlords did not. To resolve a complex

dispute among Winn-Dixie’s creditors, which is beyond the scope of this appeal,

the creditors arrived at a compromise as to Winn-Dixie’s affiliated debtors’

substantive consolidation. This compromise ultimately divided the company’s

debtors into five different classes and distributed new common stock in differing

proportions among the classes. Importantly, the compromise did not provide for

any special allotment of shares to those among the landlord class who were

holders of guaranteed claims.

      This consolidation compromise was memorialized in Winn-Dixie’s

reorganization plan under Section 1121 of the Bankruptcy Code (“the Plan”). The

Plan required Winn-Dixie to (1) cancel all of its old common stock; (2) issue new

                                           3
common stock to be listed on NASDAQ; (3) pay its administrative, priority, and

secured creditors in cash and in full; (4) distribute its new stock to unsecured

creditors who had allowed claims; (5) retire its debtor-in-possession financing;

and, (6) enter into a $725 million exit financing facility with Wachovia Bank. The

Plan received the support of an overwhelming majority of Winn-Dixie’s more than

5,000 creditors, but roughly 23% of the landlords—principally those with

guaranteed claims—rejected the Plan.

      Under the Plan and pursuant to the compromise among the creditors, Winn-

Dixie distributed its new stock to unsecured creditors at set distribution

percentages for allowed claims by class: noteholders obtained 96.5% satisfaction

of their claims (62.69 shares per $1000 of allowed claims); landlords obtained

70.6% satisfaction of their claims (46.26 shares per $1000 of allowed claims);

vendors also obtained 70.6% satisfaction of their claims (46.26 shares per $1000

of allowed claims); retirees obtained 59.1% satisfaction of their claims (38.75

shares per $1000 of allowed claims); and all other unsecured creditors obtained

53.2% satisfaction of their claims (34.89 shares per $1000 of allowed claims).

The Plan specifically did away with any prepetition guaranteed claims: “[A]ll

claims based on prepetition unsecured guarantees by one Debtor in favor of any of

the Debtors . . . shall be eliminated, and no separate distributions under the Plan

                                          4
shall be made on account of claims based upon such guarantees.” (District Court

Order at 5.) The Plan eliminated Appellant landlords’ guaranteed claims—and

thus rendered the entire class of landlords equal under the Plan — while

preserving, in effect, the guaranteed claims of noteholders who received a more

favorable stock distribution under the Plan on their claims. Appellants argued

before the courts below that the disparate treatment of their guaranteed claims was

unfair under the terms of the Plan.

       The bankruptcy court held a confirmation hearing, received evidence and

briefs, and issued findings of fact and law and a confirmation order, upon finding

the Plan “fair and equitable and in the best interests of” the Appellees. On appeal

of the confirmation order to the district court,1 the Appellants renewed their

equitable arguments and sought additional stock distributions from a pool of stock

held in reserve under the Plan for paying disputed claims, despite the Plan’s

elimination of pre-petition guaranteed claims. Winn-Dixie argued that the district

court should not hear the Appellants claims on the merits because, since the

Appellants failed to seek a stay of the Confirmation Order, the company had

already substantially consummated the Plan and relief was no longer available to



       1
          Numerous landlords separately appealed the bankruptcy court’s Confirmation Order and
the related Guaranteed Claim Order, which the district court consolidated into a single appeal.

                                               5
the Appellants. Agreeing with Winn-Dixie, the district court dismissed the

consolidated appeal on the basis of equitable mootness, as described by our

decisions in In re Holywell Corporation, 911 F.2d 1539 (11th Cir. 1990), rev’d on

other grounds by Holywell Corp. v. Smith, 503 U.S. 47, 112 S. Ct. 1021 (1992),

and In re Club Associates, 956 F.2d 1065 (11th Cir. 1992). Appellants now seek

to reverse the dismissal of their consolidated appeal to the district court.

                              II. STANDARD OF REVIEW

       We review de novo determinations of law made by either the district court

or the bankruptcy court.2 In re Club Assoc., 956 F.2d at 1069. The bankruptcy

court’s factual findings are reviewed under the clearly erroneous standard and the

district court is not authorized to make independent factual findings when it

undertakes review of the bankruptcy court’s decision. Id.

                                      III. DISCUSSION

       Appellants raise several arguments: (1) the district court ignored the

separate order disallowing the guaranteed claims in its analysis of the equitable


       2
          The Appellees’ brief recommends this Court review the district court’s dismissal of an
appeal on equitable mootness grounds for abuse of discretion under In re Continental Airlines,
Inc., 91 F.3d 553, 560 (3d Cir. 1996). We are bound by our decision in In re Club Associates,
however, wherein we reviewed the district court’s determination that an appeal was moot under
the standard articulated here. See United States v. Woodard, 938 F.2d 1255, 1258 (11th Cir.
1991) (articulating rule that decision of prior panel can only be overruled by the en banc court or
the Supreme Court).

                                                 6
mootness doctrine; (2) the district court erred in dismissing the consolidated

appeal on equitable mootness grounds; and, (3) the Appellees’ grounds for moving

for dismissal of the appeal to the district court were flawed. For the reasons

discussed below, we do not find Appellants’ arguments persuasive.

      A.     Appeal of the Separate Order Related to Guaranteed Claims

      As an initial matter, we are unpersuaded by Appellants’ argument that

because the district court failed to specifically address the bankruptcy order related

to dismissal of the guaranteed claims, it “completely disregarded” those issues

when finding the appeal moot. It is abundantly clear that the disallowance of the

landlords’ guaranteed claims was inextricably wrapped up with the settlement

among the creditors with respect to consolidation and was memorialized in the

reorganization plan that the bankruptcy court approved in its Confirmation Order.

Indeed, the only real substantive issue asserted by the parties on appeal to the

district court appears to have been whether the Confirmation Order was fair to the

landlords because the settlement did away with their guaranteed claims. Although

the bankruptcy court did enter a separate order disallowing the specific guaranteed

claims at issue here, it is incorrect to say that the district court disregarded this

order and the substantive issues it raised when the court addressed the

Confirmation Order and dismissed the consolidated appeal on mootness grounds.

                                            7
Whether the district court could afford relief to Appellants on their guaranteed

claims—and thus, in effect, overturning the order related to the guaranteed claims

in addition to modifying the confirmation order—was the primary substantive

issue addressed by the district court in its thorough mootness analysis.

      B.     Equitable Mootness Issues

      Appellants assert that their appeal of the Confirmation Order was not moot

because the district court could have afforded them relief without rescinding

transactions already undertaken pursuant to the reorganization plan. “The

mootness doctrine, as applied in a bankruptcy proceeding, permits the courts to

dismiss an appeal based on its lack of power to rescind certain transactions.” In re

Holywell Corp., 911 F.2d at 1543. “Central to a finding of mootness is a

determination by an appellate court that it cannot grant effective judicial relief.

Put another way, the court must determine whether the reorganization plan has

been so substantially consummated that effective relief is no longer available.” In

re Club Associates, 956 F.2d at 1069. In determining whether an appeal of a

reorganization plan is moot, courts will necessarily consider what relief a court

can provide, given the status of the reorganization plan and its consummation in

the interim time. Id.; see also In re Holywell Corp. 911 F.2d at 1543; Miami Ctr.

Ltd. P’ship v. Bank of N.Y., 820 F.2d 376, 379 (11th Cir. 1987).

                                           8
      Importantly, although not dispositive to the availability of judicial relief, see

In re Club Assoc., 956 F.2d at 1070 n.13, when a party has failed to seek a stay of

the confirmation order pending appeal to the district court, for practical reasons it

is often difficult for courts to afford relief to the appealing party because the court

is unable to rescind transactions taken in consummation of the reorganization plan

and confirmation order enforcing said plan. See Miami Ctr. Ltd. P’ship, 838 F.2d

at 1555 (noting that dismissal of an appeal on grounds of mootness is often

granted when an appeal that ultimately reversed the confirmation order would

“knock the props out from under the authorization for every transaction that has

taken place and create an unmanageable, uncontrollable situation for the

Bankruptcy Court”) (internal quotations and citations omitted). We will,

therefore, “not entertain any challenge to the Plan which seeks to modify or amend

its provisions,” when, in absence of a stay, substantial consummation of the plan

has been achieved. In re Holywell Corp., 911 F.2d at 1543; see also 11 U.S.C. §

1127(b) (2006) (“The proponent of a plan or the reorganized debtor may modify

such plan at any time after confirmation of such plan and before substantial

consummation of such plan . . . .”). This is precisely such a case.

      Appellants assert that their appeal of the confirmation order was not moot

because the court could have afforded them relief without dismantling the

                                           9
confirmation plan or affecting the rights of third parties because the court could

have awarded Appellants common stock from the nine million shares held in

reserve under the Plan for disputed claims. But this argument overlooks the fact

that to have afforded Appellants any relief on their guaranteed claims, the district

court—as it correctly observed—would have had to alter or amend the

reorganization plan itself which expressly extinguished the very claims upon

which the Appellants now seek to obtain relief. In other words, central to the

reorganization plan itself was the consolidation settlement, of which an integral

component was disallowance of additional distributions to the Appellants solely

because the amounts owed by one debtor entity was guaranteed by another debtor.

We also thus agree with the district court that the requested modification of the

Plan would be material. To provide the relief sought by Appellants—additional

distributions because of such guarantee—would require the court to modify the

terms and conditions of the reorganization plan, which at this point—in part

because of Appellants’ failure to seek a stay—has been substantially consummated

by Winn-Dixie.3 Therefore, even were the relief Appellants’ sought before the

       3
          Importantly, on appeal, Appellants do not challenge the district court’s finding that the
Plan has been substantially consummated. The district court made a factual finding with regard
to substantial consummation based on an affidavit proffered by Winn-Dixie after execution of
the Confirmation Order. See In re Manges, 29 F.3d 1034, 1041 (5th Cir. 1994) (permitting
reviewing court to receive facts related to mootness). We see no reason to disturb the district
court’s finding on this issue, considering especially that the appellants have not challenged the

                                                 10
district court available to them by way of the reserve stock, an order granting

Appellants relief would necessarily alter or amend the terms of the Plan and the

Confirmation Order. We decline, as the district court did, to permit an appeal that

would lead to an alteration or amendment of a substantially consummated

reorganization plan.4

       C.      Winn-Dixie’s Grounds for Seeking Dismissal

       Appellants argue that Winn-Dixie’s grounds for seeking dismissal of their

appeal to the district court were flawed for two reasons: first, the absence of a stay

does not, in and of itself, command a finding of mootness; and, second, similarly,

substantial consummation of a reorganization plan will not singularly render an

appeal moot. Appellants are of course correct that neither factor—failure to seek a

stay or substantial consummation—in and of itself renders an appeal moot. See In

re Club Assoc., 956 F.2d at 1069 (“As the district court properly noted, substantial

consummation by itself does not resolve the issue. Even if substantial

consummation has occurred, a court must still consider all the circumstances of the



district court’s finding of substantial compliance.
       4
         Appellants assert that the considerations of equity that underlie this mootness doctrine
are on their side. However, it is anything but clear that the equities are in their favor in this case,
considering especially their own failure to seek a stay in the execution of the Confirmation Order
and also their representation in the settlement which led to the reorganization plan that
extinguished their guaranteed claims in the first instance.

                                                  11
case to decide whether it can grant effective relief.”). But of the factors we

identified in Club Associates,5 none here favor permitting Appellants to proceed

with their appeal. The district court thoroughly discussed these factors. No

argument in the Appellants’ brief on appeal leads us to question the district court’s

well-reasoned discussion.

       Moreover, we cannot fairly say, as the Appellants assert, that the fact of

substantial consummation itself is irrelevant to the relief sought by the Appellants

here. Even though the relief Appellants seek—issuance of additional stock from

the reserve pool—would not undo many of the transactions that have already taken

place pursuant to the Plan, it would, necessarily, “modify or amend” the Plan itself

and its provisions with regard to the landlords’ guaranteed claims. Furthermore,

and significantly, it would also diminish the stock available to those creditors,

unlike the Appellants, whose disputed claims were not resolved by the terms of the

Plan. The type of relief sought here is, again, precisely the type of relief that our



       5
         In a footnote, the Court suggested the relevant analysis for mootness should include an
evaluation of several questions:
        Has a stay pending appeal been obtained? If not, then why not? Has the plan
        been substantially consummated? If so, what kind of transactions have been
        consummated? What type of relief does the appellant seek on appeal? What
        effect would granting relief have on the interests of third parties not before the
        court? And, would relief affect the re-emergence of the debtor as a revitalized
        entity?
In re Club Assoc., 956 F.2d at 1069 n.11.

                                               12
decisions in Holywell and Club Associates make clear we will not afford once a

plan has been substantially consummated and relied upon by debtors, creditors,

and third-parties alike.

                                    IV. CONCLUSION

      For the foregoing reasons, the district court’s decision finding the

Appellants’ consolidated appeal moot is

      AFFIRMED.6




      6
          Both the Appellants’ and Appellees’ requests for oral argument are denied.

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