Nahmias v. General Homes Corp

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 95-20433
IN RE: GENERAL HOMES CORP.,
Debtor;
NATHAN NAHMIAS,
Appellant,
versus
GENERAL HOMES CORP. and
FGMC, INC.,
Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:94-CV-16)
April 1, 1996
Before WIENER, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Nathan Nahmias, a holder of unsecured bonds issued by the
debtor, General Homes Corp., appeals the district court's dismissal
of the appeal of the bankruptcy court's order confirming a plan of
reorganization under Chapter 11 of the Bankruptcy Code.
This bankruptcy case began by involuntary petition on July 10,
1990. Following appropriate proceedings, the bankruptcy court
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
confirmed a reorganization plan in October of 1991. The Official
Committee of Unsecured Creditors appealed this order to the
district court. The bankruptcy court denied a motion to stay
execution of the plan pending appeal, and no such request was made
in the district court.
Debtor GHC filed a motion to dismiss the bankruptcy appeal.
The district court did not rule on the motion to dismiss and took
the appeal under advisement. On March 6, 1995, GHC filed a renewed
motion to dismiss the appeal, contending that the appeal should be
dismissed as moot because of substantial completion of the
reorganization approved by the bankruptcy court. The unsecured
creditors' committee did not oppose this motion. However,
following this renewed motion, appellant Nahmias filed a response
and two amended responses objecting to dismissal of the appeal,
making his first appearance in the proceedings. On April 11, 1995,
the district court denied GHC's motion to dismiss.
On April 24, 1995, GHC filed a motion asking the district
court to reconsider its order denying the motion to dismiss.
Nahmias did not object to the motion to reconsider. On May 5,
1995, the district court granted GHC's motion and dismissed the
appeal as moot. Nahmias timely filed this appeal. GHC filed a
motion to dismiss for lack of jurisdiction, contending that Nahmias
did not have standing to appeal. GHC also filed a request for
damages under Rule 38 of the Federal Rules of Appellate Procedure,
contending that Nahmias's appeal was frivolous. GHC's motions were
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carried with the case.
The substance of this appeal by Nahmias is that the district
court's order dismissing the bankruptcy appeal as moot was error.
On appeal, Nahmias offers numerous reasons why this appeal should
not have been dismissed as moot. However, Nahmias did not present
these arguments to the district court. In his responses filed in
the district court, Nahmias objected to dismissal of the appeal
on the grounds that the plans of reorganization in the
above-referenced cases were confirmed contrary to the
provisions of the United States Bankruptcy Code and
dismissal of the appeal will result in rendering [his]
debentures valueless, in violation of the applicable
provisions of the United States Bankruptcy Code.
Nahmias offered no more specific objection.
"``[T]o be preserved, an argument must be pressed, and not
merely intimated.' In short, the argument must be raised to such
a degree that the trial court may rule on it . . . ." In re
Fairchild Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir. 1993)
(citations omitted). Nahmias's general objections to the
reorganization plan clearly failed to address whether the
bankruptcy appeal had become moot. Therefore, his arguments to
this court that the appeal should not have been considered moot
were not properly preserved for review.
As a general rule, this court will not address arguments
presented for the first time on appeal, and Nahmias has offered no
reason to make exception in the present case. Because Nahmias did
not properly preserve his arguments on the substance of this
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appeal, he has presented to this court no "legal points arguable on
their merits." Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983) (quoting Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967)).
ACCORDINGLY, this appeal is DISMISSED AS FRIVOLOUS. See Local
Rule 42.2. We caution Nahmias that any additional frivolous
appeals filed by him will invite the imposition of sanctions.
IT IS FURTHER ORDERED that appellees' motion to dismiss this
appeal for lack of jurisdiction is DENIED AS MOOT.
IT IS FURTHER ORDERED that appellees' request for damages and
single or double costs under Fed. R. App. P. 38 is DENIED.
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