IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20593
(Summary Calendar)
In the Matter of: THE GINTHER TRUSTS, A Texas Joint Venture,
Debtor,
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FERGUS M. GINTHER; ADRIANA N. GINTHER,
Appellants,
versus
THE GINTHER TRUSTS, A Texas Joint Venture; REDSTONE EL DORADO
ACQUISITION, L.P.,
Appellees,
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Appeal from the United States District
Court for the Southern District of Texas
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January 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Appellants Fergus and Adriana Ginther contend that the District
Court erred in dismissing as moot their appeal of the bankruptcy court’s
authorization of the sale of the undivided interest of the Ginther
Trusts, a Texas joint venture (“the Venture”), in the El Dorado Ranch
(“the Ranch”) to Redstone El Dorado Acquisition, L.P. (“Redstone”). The
Venture owned, in the aggregate, approximately 51% of the undivided
interest in the Ranch, a real estate development in Texas, and joined
all other owners of fractional interests in selling the Ranch to
Redstone. As the Venture was then a debtor in bankruptcy, it did not
sell its fractional interest in the Ranch until after it obtained
authorization from the bankruptcy court pursuant to 11 U.S.C. § 363(b).
Appellants contended in bankruptcy court that the sale should not have
been authorized because, inter alia, the Venture lacked standing to
become a debtor in bankruptcy. Appellants also asserted —— for the
first time on appeal to the district court —— that Redstone was not a
good faith purchaser. Because, however, (1) the sale was authorized by
the bankruptcy court, and (2) Appellants were unable to obtain a stay
of the sale, we affirm the district court’s dismissal of this appeal as
moot.
I. Facts and Proceedings
In the 1950s, Noble C. and Minnie Lee Ginther, husband and wife,
acquired the Ranch, a 2033 acre tract of Texas real property.
Thereafter, it was developed into the El Dorado Ranch and El Dorado
Country Club. They sold fractional interests in the Ranch, retaining
approximately 51 percent in undivided ownership.
In the mid-1980s, the Ginthers (“grantors”) created the Ginther
Revocable Trust, a revocable inter vivos trust, to which they
transferred their interest in the Ranch. The trust agreement provided
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that, on the death of the first grantor to die, the trustee would divide
the assets of the trust into two separate shares, not necessarily equal
in value, one share to hold the property of the surviving grantor, the
other share to hold the property of the deceased grantor.
In accordance with that provision of the trust agreement, on the
death of Noble C. Ginther in 1989, the trust’s 51 percent interest in
the Ranch was divided into two separate shares: The decedent’s
undivided 24.7 percent interest went into the Noble C. Ginther Grantor
Trust and the survivor’s undivided 26.7 percent interest went to the
Minnie Lee Ginther Grantor Trust. These trust shares —— actually sub
trusts —— were then placed under the fiduciary control of the Advent
Trust Company, as successor trustee of the two grantor trusts that
resulted (collectively the “Ginther Trusts”).
In 1998, the Venture, referring to itself as a Texas joint venture,
voluntarily filed for relief under Chapter 11 of the bankruptcy code.
In response to a challenge mounted by a number of creditors to the
Venture’s standing to file for bankruptcy, the bankruptcy court found
that the Venture constituted a de facto joint venture under Texas law,
that it owned a fractional interest of some 51% to 53% in the Ranch, and
that it did have standing as a debtor in bankruptcy court.
The Venture and the other owners of the Ranch entered into an
agreement to sell the Ranch to Redstone, subject to the Venture’s
obtaining the bankruptcy court’s approval of the sale of its interest.
Appellants challenged the Venture’s record title to the Ranch and
attempted to block the sale. They did not, however, challenge
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Redstone’s status as a good faith purchaser until they appealed to the
district court.
The bankruptcy court proceeded to approve the Venture’s sale of its
interest in the Ranch to Redstone as good faith purchaser. Appellants
appealed that decision to the district court and then to us, and they
sought a stay of the sale pending each appeal. Like the bankruptcy
court, however, the district court —— and ultimately this court ——
refused to grant a stay, and the sale of the Ranch to Redstone was
consummated.
Despite their failure to obtain a stay of the sale, Appellants
prosecuted their appeal of the bankruptcy court’s authorization of the
sale to the district court, which dismissed their appeal as moot because
the sale had already been closed. That dismissal is now before us on
appeal.
II. Analysis
A. Standard of Review
We review de novo the district court’s dismissal of an appeal from
the bankruptcy court as moot.1
B. Failure to Obtain a Stay
After the bankruptcy court authorized the sale of the Venture’s
interest in the Ranch to Redstone pursuant to 11 U.S.C. § 363(b),
Appellants were unsuccessful in their attempts to obtain a stay of the
sale, and it closed. 11 U.S.C. § 363(m) provides that a bankruptcy
1
In re GWI PCS 1 Inc., 230 F.3d 788, 800 (5th Cir. 2000).
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court’s authorization of the sale of property under 11 U.S.C. § 363(b)
“to an entity that purchased. . .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” cannot
be reversed or modified.2
Appellants contended, for the first time on appeal to the district
court, that Redstone was not a good faith purchaser of the Ranch, making
§ 363(m) inapplicable. As Redstone’s status as a good faith purchaser
was not challenged in the bankruptcy court, however, we need not address
this issue. “It is well established that we do not consider arguments
or claims not presented to the bankruptcy court.”3 We nevertheless note
in passing that our thorough review of the record, Appellants’
arguments, and the bankruptcy court’s well-reasoned opinion, convinces
us that if we were to address the good faith purchaser issue we would
likely agree with the bankruptcy court’s determination that Redstone was
a good faith purchaser as a matter of law.
C. Subject Matter Jurisdiction
Appellants also challenge the subject matter jurisdiction of the
bankruptcy court by urging that the Venture was not a debtor with
standing in bankruptcy court. This contention is irrelevant to the
2
11 U.S.C. § 363(m) (West 2000).
3
Gilchrist v. Westcott, (In Matter of Gilchrist), 891 F.2d
559, 561 (5th Cir. 1990) (citing Moody v. Empire Life Ins. Co. (In
re Moody), 849 F.2d 902, 905 (5th Cir.), cert. denied, 488 U.S. 967
(1988)).
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instant inquiry, however. In In re Gilchrist,4 we adopted the Seventh
Circuit’s interpretation of § 363(m) that a failure to obtain a stay is
fatal to a challenge of a bankruptcy court’s authorization of the sale
of property, notwithstanding any questions as to that court’s
jurisdiction. As the Seventh Circuit had earlier held in In re Sax,5
[t]he appellants raise the jurisdictional argument as if it
somehow negates or excuses their failure to obtain a stay.
It does not. This appeal is moot because [the appellants]
failed to obtain a stay, so we cannot reach the question of
whether the bankruptcy court had jurisdiction to order and
approve the sale. . . .The bankruptcy court made the
determination that it had jurisdiction; an issue which it had
jurisdiction to decide. . . .That decision stands unless it
is appealed properly. . . .Despite the maxim that 'subject
matter jurisdiction can be raised at any time,' valid
procedural rules cannot be ignored just because the
jurisdictional decision is being challenged rather than the
decision on the merits.6
Moreover, we are persuaded, as was the bankruptcy court, that the
Venture’s resulting co-ownerships following the division of the original
trust on the death of the first settlor to die is a de facto joint
venture under Tex. Civ. Code Ann. § 6132b. Such joint ventures are
clearly “persons” entitled to be debtors in bankruptcy court.7
III. Conclusion
Because Appellants failed to obtain a stay of the sale of the
Venture’s interest in the Ranch to Redstone, the district court
4
891 F.2d 559 (5th Cir. 1990).
5
796 F.2d 994 (7th Cir. 1986).
6
Id. at 561 (quoting In re Sax, 796 F.2d at 998).
7
11 U.S.C. § 109(b) (West 2000).
6
correctly dismissed Appellants’ appeal as moot. The decision of the
district court is therefore
AFFIRMED.
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