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Nahmias v. General Homes Corp, 95-20433 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-20433 Visitors: 19
Filed: Apr. 23, 1996
Latest Update: Mar. 02, 2020
Summary: 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 bankrup
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                     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this opinion should not be published and is not precedent except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

                                         2
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

                                       3
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.




                                4

Source:  CourtListener

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