FILED

United States Court of Appeals

Tenth Circuit

January 22, 2014

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: C.W. MINING COMPANY,

doing business as Co-Op Mining

Company,

Debtor.

____________________

KENNETH A. RUSHTON, Trustee,

Plaintiff-Appellee,

v.

ANR COMPANY, INC.; HIAWATHA

COAL COMPANY, INC.; CHARLES

REYNOLDS; C.O.P. COAL

DEVELOPMENT COMPANY;

STANDARD INDUSTRIES, INC.;

ABM, INC.; WORLD ENTERPRISES;

SECURITY FUNDING, INC.;

FIDELITY FUNDING, INC.; and

P.P.M.C., INC.,

Defendants-Appellants,

and

RHINO ENERGY LLC; CASTLE

VALLEY MINING LLC,

Interested PartiesAppellees.

Nos. 12-4091, 12-4102, 12-4106, 

12-4112, 12-4132, 12-4144
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. Nos. 2:10-CV-00079-TS, 2:10-CV-00267-TS, 2:10-CV-00969-TS, 

2:10-CV-00269-TS, 2:10-CV-00920-TS, 2:10-CV-00921-TS, 

2:10-CV-00922-TS, 2:10-CV-00924-TS) 

Laura J. Fuller, Law Offices of Laura J. Fuller, Salt Lake City, Utah, for

Appellant ANR Company, Inc. in Case No. 12-4091.

Peter W. Guyon, Salt Lake City, Utah, for Appellant Hiawatha Coal Company,

Inc. in Case Nos. 12-4102 and 12-4144.

Russell S. Walker (David R. Williams and Anthony M. Grover with him on the

briefs), Woodbury & Kesler, P.C., Salt Lake City, Utah, for Appellant Charles

Reynolds in Case No. 12-4106.

David L. Pinkston (Kim R. Wilson and P. Matthew Cox with him on the briefs),

Snow Christensen & Martineau, Salt Lake City, Utah for Appellant C.O.P. Coal

Development Company in Case Nos. 12-4112 and 12-4132.

George B. Hofmann, Parsons Kinghorn Harris, A Professional Corporation, Salt

Lake City, Utah (William F. Dobbs, Jr., and William C. Ballard, Jackson Kelly

PLLC, Charleston, West Virginia, with him on the briefs for Appellees Castle

Valley Mining, LLC and Rhino Energy, LLC), and James C. Swindler (Michael

N. Zundel with him on the briefs), Prince, Yeates & Geldzahler, Salt Lake City,

Utah, for Appellee Kenneth A. Rushton, Trustee in Case Nos. 12-4091, 12-4102,

12-4106, 12-4112, 12-4132, and 12-4144.

Before TYMKOVICH, BRORBY, and MURPHY, Circuit Judges.

TYMKOVICH, Circuit Judge.

These appeals arise from a Chapter 7 asset sale for the liquidating

bankruptcy estate of C.W. Mining Co., a former coal mining operation in Emery

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County, Utah. The four appellants did business with C.W. Mining before its

involuntary bankruptcy. They now claim various assets that the bankruptcy

trustee, Kenneth A. Rushton, sold to an unrelated entity, Rhino Energy LLC.

Standing in the way of the appellants’ claims is one of the Bankruptcy

Code’s mooting provisions, 11 U.S.C. § 363(m).1

 Under this statute, we can grant

the appellants no relief that would affect the validity of Rushton’s sale to Rhino. 

The question then for each appellant is whether any relief can be granted that

would not affect the sale’s validity. The district court, which first addressed these

appeals from the bankruptcy court, answered that question in the negative and

thus dismissed the appeals as moot.

As we further explain below, we DISMISS Rhino and its wholly owned

subsidiary, Castle Valley Mining LLC, from these appeals, and exercising

jurisdiction under 28 U.S.C. § 158(d)(1), we AFFIRM Nos. 12-4091, 12-4102, 12-

4112, 12-4132, and 12-4144, and we REVERSE No. 12-4106.

In summary, we dismiss Rhino and Castle Valley from all appeals because

no appeal seeks any relief affecting either entity.

As against the remaining appellee, Rushton, we agree with the district court

that ANR Co.’s appeal (No. 12-4091), COP Coal Development Co.’s first appeal

(No. 12-4112), and Hiawatha Coal Co.’s first appeal (No. 12-4102) are moot. By

1

 All citations hereafter come from title 11 of the U.S. Code unless

otherwise noted.

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raising only those claims that affect the sale order, ANR and COP waived any

relief besides that which would violate § 363(m). And Hiawatha failed to contest

Rushton’s arguments showing that no theories of relief are available except those

that affect the sale order. Accordingly, we affirm those appeals.

We also affirm the district court’s judgment in COP’s second appeal (No.

12-4132) and Hiawatha’s second appeal (No. 12-4144) because both appeals seek

only to protect COP and Hiawatha’s first appeals from waiver for failing to

appeal the sale order itself. But because we do not find any waiver for that

reason, we cannot offer relief in either appeal and thus find both moot as well.

That said, in Charles Reynolds’s appeal (No. 12-4106), Reynolds has

consistently raised a statutory claim for relief that does not affect the validity of

the sale, and the district court mistakenly relied on an unpublished opinion to

decide otherwise. Accordingly, we reverse his appeal and remand it to the district

court for proceedings consistent with this opinion.

I. Background

Before it was forced into bankruptcy, C.W. Mining mined coal on land

belonging to two related entities, COP and ANR. C.W. Mining had the exclusive

right to mine coal on COP and ANR’s property per leases C.W. Mining had with

both.2

2

 Although COP and ANR are distinct entities, Joseph O. Kingston is the

(continued...)

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Hiawatha also mined coal, but on a much smaller scale than C.W. Mining. 

Originally, Hiawatha had been in charge of operations at ANR’s mine, but after

2

(...continued)

president of both. COP and ANR are also closely related to C.W. Mining and to

the other appellants, Hiawatha and Charles Reynolds. In a prior proceeding, the

Bankruptcy Appellate Panel outlined some of these entities’ relationships with

each other:

The relationship between [C.W. Mining] and COP is

more than mere lessor-lessee. Although COP maintains

there is no legal relationship between itself and [C.W.

Mining], both entities are owned and operated, at least

in part, by various members of the Kingston family and

members of the Davis County Cooperative, a non-profit

entity. The Davis County Cooperative, [C.W. Mining]

and COP share various common directors, officers,

shareholders and registered agents. Carl Kingston is the

registered agent for [C.W. Mining] and COP, is a

member of the Davis County Cooperative, and has acted

as attorney for [C.W. Mining]. Carl Kingston’s cousin,

Joe Kingston, is the president and a shareholder of COP. 

Joe Kingston’s brother, Paul Kingston, is a shareholder

of [C.W. Mining] and COP, as well as the trustee (akin

to the CEO) of the Davis County Cooperative. Charles

Reynolds, the president of [C.W. Mining] since 2004, is

a member of the Davis County Cooperative. John

Gustafson, the vice president of [C.W. Mining] and one

of its shareholders, sits on the board of directors of the

Davis County Cooperative. Rachel Young, sister of Paul

Kingston and Joe Kingston, is a shareholder of [C.W.

Mining] and formerly a shareholder of COP. COP

disputes that any of these connections gave it the ability

to control [C.W. Mining].

C.O.P. Coal Dev. Co. v. C.W. Mining Co. (In re C.W. Mining Co.), 422 B.R. 746,

749 (B.A.P. 10th Cir. 2010) (footnotes omitted).

-5-
Hiawatha ran into trouble with mining regulatory agencies, Hiawatha and ANR

jointly agreed to pass control of the operations to C.W. Mining.

Of the two mines, only COP’s mine, the Bear Canyon mine in Emery

County, Utah, was active. Charles Reynolds ran C.W. Mining’s coal mining

operations there. He and his family, including ten children, lived in a house

connected to the mine’s major operations center (the “scale house”). COP owned

the scale house, but because the scale house was under C.W. Mining’s exclusive

control per its mining contract with COP, Reynolds lived at the home with C.W.

Mining’s permission.

A. The Bankruptcy

C.W. Mining’s bankruptcy arose from a breach of contract action brought

by Aquila, Inc., which claimed that C.W. Mining failed to deliver coal as

contracted. In 2007, Aquila obtained a favorable judgment for $24.8 million. See

C.O.P. Coal Dev. Co. v. C.W. Mining Co. (In re C.W. Mining Co.), 641 F.3d

1235, 1236 (10th Cir. 2011). After the judgment, C.W. Mining and COP

attempted to terminate their mining contract. But before they could do so, Aquila

(along with two other C.W. Mining creditors) filed an involuntary Chapter 11

bankruptcy petition against C.W. Mining in January 2008.

After the petition was filed, C.W. Mining tried to transfer all of its

operations to Hiawatha in June 2008. COP and ANR then entered into

postpetition agreements with Hiawatha to mine coal in C.W. Mining’s stead. 

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Hiawatha, in turn, used only C.W. Mining’s existing mining operations and even,

at times, C.W. Mining’s name.

In September 2008, the bankruptcy court granted Aquila’s petition to keep

C.W. Mining in involuntary bankruptcy. Two months later, in November 2008,

the bankruptcy court converted the case into a Chapter 7 bankruptcy. This

changed the bankruptcy from one of reorganization (where C.W. Mining would

continue to exist after the bankruptcy) to one of liquidation (where all of C.W.

Mining’s assets would be sold to provide its creditors with as much relief as

possible). In that same month, Rushton was appointed the C.W. Mining

bankruptcy estate’s trustee.

B. The Adversary Proceedings

Rushton filed several adversary proceedings in bankruptcy court to recover

C.W. Mining’s assets, including its coal mining operation at the Bear Canyon

mine, its scale house at the mine (which Reynolds was occupying at the time),

and its contracts with ANR and COP (which both had attempted to transfer to

Hiawatha). After several evidentiary hearings, the bankruptcy court ordered all

assets to be returned to the estate. ANR, Hiawatha, Reynolds, and COP each

appealed to the district court.

While their appeals were pending in the district court, Rushton sold the

Bear Canyon mining operations, scale house, and mining contracts to another

mining company, Rhino, for $15 million. Rushton and Rhino relied on the

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bankruptcy court’s prior rulings that established the estate’s ownership of the

mining operations, scale house, and mining contracts. After reviewing the sale,

the bankruptcy court issued an order finding that Rhino was a good faith

purchaser and entitled to the protection of § 363(m). None of the appellants

moved to stay the sale order, and the sale closed in August 2010—months after

the district court appeals were filed. On August 25, 2010, Rhino took possession

and transferred the mining operation to its wholly owned subsidiary, Castle

Valley, which promptly began mining.

After the sale closed, Rushton and Rhino moved to dismiss as moot the

various appeals still pending in district court, citing § 363(m) mootness and, in

the alternative, equitable mootness. The district court agreed with both mootness

rationales and dismissed the underlying appeals. ANR, Hiawatha, Reynolds, and

COP now appeal the district court’s mootness decisions to this court.

We provide additional background information as relevant to each claim.

II. Analysis

The appellants challenge the district court’s determination that their

bankruptcy appeals are both statutorily and equitably moot. We review de novo

the district court’s decision that a bankruptcy appeal is statutorily moot. Search

Market Direct, Inc. v. Jubber (In re Paige), 584 F.3d 1327, 1334 (10th Cir. 2009). 

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Thus, we review de novo whether the appellants have no possibility of relief

under § 363(m)3

 (“§ 363(m) mootness” for short). See id. at 1336–37. The

district court’s determination that these appeals are equitably moot is normally

reviewed for abuse of discretion. In re Paige, 584 F.3d at 1335.

We begin our analysis with § 363(m) mootness. We first dismiss the

appeals against Rhino and Castle Valley, as no appellant is seeking any relief that

would affect those appellees. Then we address the remaining appeals against

Rushton. We ultimately affirm the district court’s dismissal on § 363(m)

mootness for every appellant except Reynolds. Thus, we need not address

equitable mootness for those appeals. And because Rushton conceded that

equitable mootness did not apply to Reynolds’s live claim, as we discuss below,

we need not address equitable mootness for Reynolds’s appeal either. Finally, we

address the extra appeals filed by two appellants, COP and Hiawatha. We affirm

those appeals because they are mooted by both parties’ first appeals, respectively.

3

 Section 363(m) states:

The reversal or modification on appeal of an

authorization under subsection (b) or (c) of this section

of a sale or lease of property does not affect the validity

of a sale or lease under such authorization to an entity

that purchased or leased 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.

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A. Appellees Rhino and Castle Valley

All appellants expressly disclaim any relief that would affect Rhino or

Castle Valley or Rhino’s purchase from the bankruptcy estate.4

 Since no

appellant seeks relief affecting Rhino or Castle Valley, these appeals are moot as

to both.

We now consider what effect § 363(m) has on the remaining appeals.

B. Nos. 12-4091, 12-4102, 12-4106, & 12-4112 Against Rushton

The appellants do not dispute that § 363(m) applies to the asset sale in

question, that Rhino was a good-faith purchaser, and that no party requested a

stay of the sale order. The only remaining question is whether § 363(m) permits

the relief available to the appellants if they prevailed in these appeals.

The appellants first contend that § 363(m) applies only to appeals of the

sale order itself, and since these four appeals are not of that order in particular,

§ 363(m) does not apply. But § 363(m)’s effect is not limited to appeals of the

sale order itself where, as here, the sale order depends on the other orders on

4

 At oral argument, however, ANR seemed to suggest that if we found no

monetary relief was available, as we do here, ANR might seek to unwind its

portion of the asset sale. This request in the alternative would in fact affect

Rhino and Castle Valley, because the request, if granted, would unwind part of

their asset purchase. But for that very reason, this request is plainly barred by

§ 363(m) because it affects the validity of an unstayed asset sale to a good faith

purchaser. Thus, to the extent ANR also seeks this alternative relief, its appeal is

still moot as to Rhino and Castle Valley and is accordingly dismissed.

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appeal. If these other orders are reversed or modified, the sale order would be

effectively “modifi[ed]” as well, which is contrary to § 363(m)’s text. 

Further, allowing such modifications would frustrate § 363(m)’s purpose of

“protect[ing] the public’s interest in finalizing bankruptcy sales.” See Osborn v.

Durant Bank & Trust Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir. 1994),

abrogated in part on other grounds by Eastman v. Union Pac. R.R., 493 F.3d

1151, 1156 (10th Cir. 2007). Section 363(m)’s protection is vital to

“encourag[ing] buyers to purchase the debtor’s property” and thus “insur[ing] that

adequate sources of financing remain available. ” Id. In this way, § 363(m)

ultimately “prevent[s] injury to creditors.” Id. But, as a result, “§ 363(m) [will]

moot[] some appeals, namely, those in cases where the only remedies available

are those that affect the validity of the sale.” Id. at 1203–04.

The appellants are correct, however, that the trustee bears the burden of

proving that a bankruptcy appeal is moot under § 363(m). In re C.W. Mining Co.,

641 F.3d at 1239. Even so, Rushton can carry his burden if the appellants fail to

offer a permissible theory for relief. See In re W. Pac. Airlines, Inc., 181 F.3d at

1197 (finding an appeal moot under the Bankruptcy Code’s other mooting

provision, 11 U.S.C. § 364(e),5

 because the appellant “fail[ed] to point us to any

5

 Section 364(e) is identical with § 363(m) in all relevant respects here:

The reversal or modification on appeal of an

authorization under this section to obtain credit or incur

(continued...)

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other provision of the Bankruptcy Code or state law that would permit us to

fashion a remedy that would not disturb the validity of the financing and terms of

its collateralization”); see also Clarke v. United States, 915 F.2d 699, 703 (D.C.

Cir. 1990) (en banc); Ctr. for Biological Diversity v. Kempthorne, 498 F. Supp.

2d 293, 296–97 (D.D.C. 2007). In other words, although the appellants bear no

burden to produce evidence or argument, the appellants will not overcome a

motion to dismiss for § 363(m) mootness simply because the trustee fails to

disprove every possible legal remedy imaginable. Instead, the appellants must at

least identify an available remedy that will not affect the sale’s validity.

And before us, the appellants point to various remedies that do not affect

the sale’s validity. The crux of these remedies is whether the appellants can

obtain part of the sale proceeds from the estate. The appellants contend that

merely asserting that they may be entitled to some of the sale proceeds is enough

to reverse the district court here. They point to a prior appeal arising out of this

same bankruptcy where we found that § 363(m) did not moot the appeal because

5

(...continued)

debt, or of a grant under this section of a priority or a

lien, does not affect the validity of any debt so incurred,

or any priority or lien so granted, to an entity that

extended such credit in good faith, whether or not such

entity knew of the pendency of the appeal, unless such

authorization and the incurring of such debt, or the

granting of such priority or lien, were stayed pending

appeal.

11 U.S.C. § 364(e).

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the appellant there, COP, claimed “it may be able to recover monetary relief,” and

the appellee, Rushton, had not “affirmatively foreclosed” that possibility. In re

C.W. Mining Co., 641 F.3d at 1239. They contend the same holds true here.

We disagree. In In re C.W. Mining Co., we were not reviewing a lower

court’s decision on the merits of a motion to dismiss for mootness, as here;

instead, we were reviewing a motion to dismiss the appeal in the first instance. 

While the In re C.W. Mining Co. appeal was pending, the asset sale to Rhino

closed. Rushton and Rhino then moved to dismiss the appeal as moot, a motion

we denied. But because of the posture of that case, the appellants could raise

whatever arguments they thought helpful to avoid mootness. In this appeal,

however, we are limited by the arguments made below, and not those minted on

appeal. See, e.g., Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144,

1148 (10th Cir. 2012) (“[W]hen an argument was not raised before the district

court but is instead advanced for the first time on appeal, the court will only

reverse if the appellant shows the district court’s decision amounted to plain

error.”); Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009)

(“Absent extraordinary circumstances, we will not consider arguments raised for

the first time on appeal.”).

More importantly, in In re C.W. Mining Co., we did not discuss what relief

COP had sought below or whether COP had presented arguments to support

finding a monetary remedy in that case. We also did not discuss what arguments

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Rushton made, if any, to affirmatively show that COP’s proffered remedy was not

available. “Questions which merely lurk in the record [of earlier cases], neither

brought to the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.” Cooper Indus., Inc. v. Aviall

Svcs., Inc., 543 U.S. 157, 170 (2004) (internal quotation marks omitted). Thus,

our opinion in In re C.W. Mining Co. does not control.

And in this appeal, the limits of appellants’ requests for relief are front and

center. Rushton argues that, in the district court, each waived or abandoned any

relief not barred by § 363(m). He also argues that, even if we reach their various

claims for monetary relief here, the relief they request is not available under the

facts of this case.

We decide whether Rushton is correct as to each appeal in turn.

1. Appeal No. 12-4091 – ANR’s Appeal

In the bankruptcy court, ANR sought only a determination that its

agreement with C.W. Mining had in fact been terminated. See ANR App. 337. 

The bankruptcy court denied this request for relief because “ANR never provided

[C.W. Mining] with any notice of default as required before termination of the

ANR Operating Agreement,” thus ANR’s agreement with C.W. Mining had not

been terminated. Id. at 13. In the alternative, ANR requested that Rushton “pay

all unpaid royalties due to ANR” and others “as provided in” a set of documents

ANR submitted to the bankruptcy court. Id. at 337–38. The bankruptcy court

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denied this request because the documents contained no evidence that C.W.

Mining’s bankruptcy estate owed ANR any royalties. See id. at 14.

ANR appealed to the district court. In the meantime, the asset sale to

Rhino was completed and the bankruptcy court issued the sale order. ANR’s

mining agreement was included in the assets sold. Accordingly, Rushton and

Rhino moved to dismiss ANR’s appeal. In response, ANR argued that its

requested relief did not affect the validity of the sale order. Rather, ANR said,

the “proper remedy” for its appeal was “declaratory relief through contract

interpretation.” Id. at 326. In other words, ANR wanted the district court to find

that its mining agreement with C.W. Mining was no longer in effect. The district

court found that “[a]ny such declaratory relief would necessarily call into

question the bankruptcy court’s interpretation of the ANR Agreement and,

therefore, would affect the validity of the Sale Order.” Id. at 445. Thus, the

district court granted the motion to dismiss. ANR again appealed.

Before this court, ANR does not contest that the declaratory relief it sought

would affect the sale order. Rather, it argues, first, that reversing the bankruptcy

court’s contract interpretation would not substantially affect the sale order and,

second, that it is entitled to monetary relief from the bankruptcy estate in the form

of a constructive trust.

Both arguments fail. First, § 363(m) does not speak in gradations; it

“forecloses any remedy . . . that would affect the validity of the . . . sale,” even if

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the remedy would not bring about a significant change to the sale. See In re C.W.

Mining Co., 641 F.3d at 1239 (emphasis added).

Second, ANR has waived any right to a constructive trust in this case. 

Neither before the bankruptcy court nor before the district court did ANR seek a

constructive trust. And “we generally will not consider issues on appeal that were

not presented” below. Golfland Entm’t Ctrs., Inc. v. Peak Inv., Inc. (In re BCD

Corp.), 119 F.3d 852, 857 (10th Cir. 1997) (internal quotation marks omitted).

Granted, we do have the discretion to consider such issues. See id. For

instance, in In re BCD Corp., we exercised our discretion to hear an appeal where

§ 363(m) disallowed the relief requested below because “the evidence and legal

arguments relating to the claim for proceeds are the exact same as” those made

for the relief requested below. Id.

But those circumstances are not present here. Instead, after three stages of

litigation, ANR still has yet to set forth the evidence and legal arguments showing

it is entitled to an equitable remedy like a constructive trust. Before the

bankruptcy court, ANR’s alternative claim for monetary relief lacked any

evidence showing that ANR was due financial compensation. See, e.g., ANR

App. 357 (listing ANR’s purported evidence of royalties owed, none of which

showed royalties owed to ANR). And both before the bankruptcy court and

district court, ANR has failed to demonstrate any financial losses to itself or any

-16-
unjust enrichment to the bankruptcy estate resulting from the estate’s retention

and subsequent sale of C.W. Mining’s ANR mining agreement. 

In short, the only remedy ANR has preserved on appeal would unwind the

sale order, and that is something ANR cannot do under § 363(m).

2. Appeal No. 12-4102 – Hiawatha’s Appeal

Unlike ANR, Hiawatha did request relief below that would not affect the

validity of the sale order. But before this court, Hiawatha does not rebut

Rushton’s arguments showing that such relief is not available to Hiawatha. 

Therefore, although we disagree with the district court’s reasons for finding

Hiawatha’s appeal moot, we agree that the appeal is in fact moot under § 363(m).

We briefly describe the background unique to Hiawatha’s appeal before

explaining our decision.

a. Procedural History

Bankruptcy Court Action. In June 2008, during the “gap period” between

when C.W. Mining’s creditors filed an involuntary bankruptcy petition and when

the bankruptcy court granted that petition, C.W. Mining attempted to transfer

essentially all of its assets to Hiawatha. Once Rushton became trustee of C.W.

Mining’s bankruptcy estate, he filed an adversary action against Hiawatha to

recover the transferred property under §§ 549(a) (avoiding the transfer) and

550(a) (recovering the transferred property).

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Hiawatha opposed the action. It argued that Rushton could not avoid the

transfer because Hiawatha was entitled to the protection of § 549(b), which

disallows avoiding transfers in an involuntary bankruptcy where the transferee

gave “value” (other than by assuming prepetition debts) in exchange for the

assets. Hiawatha claimed it gave value to C.W. Mining by agreeing to hire C.W.

Mining’s former employees and by agreeing to pay C.W. Mining’s trade creditors,

royalties owed, property taxes, and any interest that accrued on C.W. Mining’s

prepetition debt.

The bankruptcy court rejected this argument because Hiawatha’s only

evidence of giving value—a declaration by Hiawatha’s president—did not show

that Hiawatha (as opposed to C.W. Mining itself) actually made those various

payments, let alone that Hiawatha did so “in exchange for” C.W. Mining’s assets. 

The district court also noted that to the extent Hiawatha actually made these

payments as part of its own “ongoing business operations,” the payments did not

count as “value” anyway. Hiaw. App. 336.

In response, Hiawatha filed a counterclaim for an improver’s lien under

§ 550(e), arguing that as a good faith transferee, it was entitled to a lien on the

property based on its alleged expenditures to improve the property.

The bankruptcy court rejected Hiawatha’s counterclaim, too, because

Hiawatha still had not produced any “credible evidence” showing that it had

expended its own money to satisfy C.W. Mining’s postpetition debts. Rushton’s

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Supp. Hiaw. App. 680. More to the point, the court concluded that Hiawatha was

not a good faith transferee. First, the court found that Hiawatha was

“undercapitalized” at the time it took possession of C.W. Mining’s property

because, up until then, Hiawatha’s “total annual receipts . . . from its [prior] coal

salvaging operations” were “only a few thousand dollars.” Id. at 682. Plus,

Hiawatha “had no full-time employees, and its president . . . was and remains

employed as a full-time computer technician at another company.” Id. Thus, if

Hiawatha actually had paid any of C.W. Mining’s debts, the court determined it

had done so from the mine’s proceeds or by borrowing from C.W. Mining’s

existing lenders. And second, the court found that, when Hiawatha received C.W.

Mining’s assets, Hiawatha already knew that C.W. Mining was in involuntary

bankruptcy and that Aquila had a $24 million judgment against C.W. Mining. Id.

The court thus concluded Hiawatha was not acting in good faith.

Consequently, the bankruptcy court denied Hiawatha a lien on C.W.

Mining’s assets and ordered that Hiawatha turn them over to Rushton. Hiawatha

complied and then appealed the bankruptcy court’s decisions to the district court.

District Court Appeal. While Hiawatha’s appeal was pending, Rushton

sold the estate’s assets to Rhino, including the mining assets that Hiawatha had

claimed as its own. Rushton and Rhino, along with Rhino’s subsidiary Castle

Valley, then moved to dismiss Hiawatha’s appeal as moot under § 363(m) because

Hiawatha sought to recover assets that were included in the sale to Rhino.

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In response, Hiawatha made various arguments about why its appeal was

not moot under § 363(m), only two of which are relevant here. First, Hiawatha

claimed “entitlement to the proceeds of the [asset] sale” based on its improver’s

lien theory in the bankruptcy court. Hiaw. App. 493 (citing § 550(e)) (emphasis

in original). And second, in lieu of recovering the assets themselves, Hiawatha

suggested the court “could order that Hiawatha be paid [their value] from the

estate.” Id. at 505.

In Rushton’s reply, he rebutted all of Hiawatha’s claims for relief from the

sale proceeds by citing “a bright-line rule” from Freightliner, LLC v. Central

Refrigerated Svc., Inc. (In re Simon Transp. Svcs., Inc.), 138 F. App’x 52 (10th

Cir. 2005), which states, in effect, that “if the proceeds of a § 363 asset sale have

not been segregated, then the claimant cannot recover those proceeds.” Hiaw.

App. 519. Because the sale proceeds had not been segregated from the estate’s

other funds, Rushton reasoned that § 363(m) mooted Hiawatha’s monetary claims

as well.

The district court granted the motion to dismiss. Adopting In re Simon’s

bright-line rule, the court concluded that “because the relief Hiawatha seeks in

this appeal would necessarily affect the validity of the Sale Order or would

improperly seek recovery from commingled sale proceeds, . . . [Rushton] ha[s]

met [his] burden to establish mootness under § 363(m).” Id. at 535.

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b. Discussion

Before us, Hiawatha concedes that recovering the assets Rhino purchased

or imposing an improver’s lien on those assets would affect the validity of the

asset sale. Hiawatha now claims its appeal is not moot because the court can still

grant relief by imposing a constructive trust on the sale’s proceeds.

As an initial matter, Hiawatha did not present this constructive trust theory

to the district court below. Hence, as with ANR, we could consider the theory

waived and decline to address it. But, unlike ANR, Hiawatha did inform the

district court that the estate’s sale proceeds could be used in lieu of the assets

themselves. And, in the context of supporting its improver’s lien theory,

Hiawatha quoted language from In re Osborn explaining how the availability of a

constructive trust can defeat § 363(m) mootness. Nonetheless, we can still affirm

the district court on § 363(m) mootness grounds without finding that Hiawatha’s

constructive trust theory has been waived, so we proceed to the constructive trust

arguments on appeal.

Hiawatha first argues that In re Simon’s bright-line rule against granting

relief from commingled funds should not apply. In In re Simon, an unpublished

order and judgment from this court, a divided panel of judges held that “the only

course consistent with the purpose of § 363(m)” is limiting the recovery of asset

sale proceeds to only those funds that “have been segregated” from the estate’s

other funds. In re Simon, 138 F. App’x at 56.

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We agree with Hiawatha and reject this bright-line rule. First, the rule

conflicts with published precedent in this circuit. In In re Osborn, a creditor

asked this court to find a bankruptcy appeal moot under § 363(m) because

“distributions have been made without objection, and the proceeds of the sale . . .

have been commingled with the other funds, [so] there is no res that could be

recovered.” In re Osborn, 24 F.3d at 1209 (emphasis added). We rejected that

argument, saying, “The Bank cites no [state], federal or other authority in support

of its dogmatic position.” Id. We concluded, “[Here, t]here is a possibility of

equitable relief. It is only if there is no such possibility that the appeal should be

dismissed as moot.” Id. at 1209–10. And, in fact, on remand, some relief was

granted despite the funds’ commingling. See In re BCD Corp., 119 F.3d at 856. 

Thus, contrary to In re Simon’s rule, relief can be granted even if the sale

proceeds are commingled with other funds—In re Osborn shows as much.

Second, In re Simon’s reliance on In re BCD Corp. is also unavailing. 

Although In re BCD Corp. correctly notes that equitable relief was possible in

that case because proceeds were segregated pending the appeal, relief was also

possible because state law “provide[d] for equitable remedies” and “the sale

proceeds ha[d] not been disbursed.” Id. at 856–57. Thus, far from identifying

segregation as the necessary factor for possible relief, In re BCD Corp. named a

number of factors suggesting relief was possible in that case—all, some, or none

of which may have been necessary.

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Third, In re Simon’s factors do not support its no-commingled-funds rule. 

The first factor cited—preventing “uncertainty as to the sale”—is irrelevant. See

In re Simon, 138 F. App’x at 56. When an estate sells assets, the purchaser

receives the assets and the estate receives proceeds. If, sometime thereafter, a

court reallocates some of the estate’s proceeds to a third party, the validity of the

original sale agreement remains unaffected. The sale is already complete;

whatever happens to the proceeds thereafter is of no concern to the purchaser. 

Congress’s purpose behind § 363(m)—assuring that asset sales are final—is

undisturbed.

In re Simon’s second factor—preventing “uncertainty as to paid-out

creditors”—is likewise inapplicable. Id. As long as the funds are not fully

disbursed, the trustee can satisfy an equitable award of money against the estate;

paid-out creditors need not be concerned. See id. at 58 (Murphy, J., dissenting). 

And the third factor—“segregation is not overly burdensome”—also is of

no help to the rule. See id. at 57. The implication of In re Simon’s rule is that an

appellant can obtain either a stay or a segregation of sale proceeds in order to

later seek relief from the sale order, but the appellant must obtain one or the

other. Yet § 363(m) only requires a stay—it says nothing about whether funds

must be segregated. See Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of

Okla., 693 F.3d 1303, 1312 (10th Cir. 2012) (“Common sense, reflected in the

canon expressio unius est exclusio alterius, suggests that the specification of [one

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provision] implies the exclusion of others.” (internal quotation marks and

alteration omitted)). Easy or not, segregating funds is simply not required.

Accordingly, we disapprove of In re Simon’s bright-line rule. But rejecting

the district court’s rationale for § 363(m) mootness in this case does not end our

inquiry, as we may affirm on different grounds. Thus, we proceed to Hiawatha’s

second argument—that Rushton failed to meet his burden of proving that no

remedy is available in this appeal.

Rushton argues that a constructive trust—the only proposed remedy before

this court that does not affect the sale order’s validity—is not available to

Hiawatha here. He explains that, under Utah law, Hiawatha must identify

“specific property that can be traced to [Rushton’s allegedly] wrongful behavior”

in order to receive a constructive trust. Rushton’s Hiaw. Br. at 13 (quoting

Wilcox v. Anchor Wate Co., 164 P.3d 353, 362 (Utah 2007)). And that tracing

requirement is impossible to meet here, Rushton says, because “[t]here is no

evidence that any part of [Rhino’s] $15 million purchase price . . . was allocated

or attributable to the [assets] recovered from Hiawatha.” Id. at 14.

In addition, Rushton notes that Utah’s constructive trust law requires

proving “unjust enrichment,” which in turn requires showing that Rushton

“accepted or retained the benefit [conferred by Hiawatha] under circumstances

making it inequitable to retain the benefit without making payment of its value.” 

Id. at 16 (quoting Thorpe v. Washington City, 243 P.3d 500, 507 (Utah 2010)). 

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And this is impossible for Hiawatha to show, according to Rushton, because

Hiawatha’s “conduct in this matter has been consistently devoid of equity.” Id. at

19. Rushton explains, “[H]aving mined a million tons of coal to which it had no

lawful right in willful violation of the automatic stay, [Hiawatha asks] this Court

[to] rule that the Trustee must compensate Hiawatha for the cost of its illegal

behavior.” Id.

In the face of these arguments, Hiawatha replies only that “it was the

Trustee’s burden . . . to show impossibility of relief to Hiawatha; not Hiawatha’s

burden to show entitlement [to a constructive trust].” Hiaw. Reply Br. at 11

(emphasis in original). But Hiawatha never actually contests Rushton’s

arguments. 

We are thus persuaded that Rushton has met his burden on the record here. 

Hiawatha does not contest that it cannot trace its claimed assets to a certain

portion of the sale proceeds, as is required by Utah law for a constructive trust. 

And Hiawatha does not contest that it mined a million tons of coal in willful

violation of the automatic stay, making an equitable remedy impossible in light of

such inequitable behavior. See Mfrs. Fin. Co. v. McKey, 294 U.S. 442, 449

(1935) (“he who seeks equity must do equity” (internal quotation marks omitted)). 

Nor does it point to wrongful conduct by Rushton. In sum, it is clear from the

undisputed facts in this particular record that Hiawatha cannot prevail on its

constructive trust theory even if its appeal were permitted to proceed below.

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With this analysis, we do not mean to suggest that, at the mootness stage,

we decide a claim’s merits. Rather, pursuant to § 363(m), we decide only

whether the claim is available. Here, Rushton has shown that Hiawatha cannot

prevail under a constructive trust theory, thereby making that remedy unavailable

and Hiawatha has given us no reason to believe otherwise.

On these grounds, we affirm the district court’s dismissal of Hiawatha’s

appeal for § 363(m) mootness.

3. Appeal No. 12-4106 – Reynolds’s Appeal

Reynolds and his family lived at the Bear Canyon mine’s scale house while

Reynolds ran the mine for C.W. Mining. After C.W. Mining was forced into

bankruptcy, Rushton filed an adversary proceeding in bankruptcy court to

establish ownership of the scale house and to evict the Reynolds family. 

Reynolds opposed Rushton’s action, arguing that he was the rightful owner of the

scale house, not C.W. Mining’s bankruptcy estate. Reynolds also filed a

counterclaim under the Utah Occupying Claimant Statute (UOCS), Utah Stat.

Ann. § 57-6-1 et seq., seeking $175,000 for purported improvements to the scale

house. This counterclaim served as an alternate remedy in the event that the

bankruptcy court determined the estate owned the house. See Reynolds App.

176–77. Ultimately, the bankruptcy court did in fact find that the estate owned

the scale house, and the court also rejected Reynolds’s counterclaim. Reynolds

then appealed both decisions to the district court.

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In the meantime, Rushton sold the mining assets, including the scale house,

to Rhino, and the sale closed without a stay. Then, Rushton, Rhino, and Castle

Valley moved to dismiss Reynolds’s appeal as moot under § 363(m) and equitable

mootness, both of which the district court adopted as independent reasons to

dismiss Reynolds’s appeal. Reynolds then appealed to this court.

As an initial matter, Rushton contends that Reynolds waived any available

relief in the district court by arguing only that the scale house should be returned

to him. But in fact, Reynolds also mentioned that relief was available through his

UOCS counterclaim. Id. at 81. Granted, he did so in only one sentence, but the

counterclaim was also included in his notice of appeal, id. at 11, and the district

court discussed the counterclaim at several points in its opinion, see id. at 140,

144–45. Thus, whether Reynolds could obtain monetary relief under the UOCS

was squarely before the district court.

Before this court, Reynolds now disclaims any relief that would affect the

validity of the sale to Rhino. See, e.g., Reynolds Br. at 4–5 (“The purpose of . . .

the present appeal . . . is not to undo the sale of the Reynolds Home or to

invalidate the Sale Order, but rather to preserve [Reynolds’s] right to damages

from the loss of his home . . . .”); id. at 19 (“To be clear, such a remedy would

come from the estate and not Rhino.”). He seeks only the value of his home or,

alternatively, the value of the improvements to his home from the estate’s sale

proceeds. And under the UOCS, just such relief is available to Reynolds, at least

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as to the value of any improvements he made to the scale house. See Hidden

Meadows Dev. Co. v. Mills, 590 P.2d 1244, 1249 (Utah 1979) (concluding that the

UOCS “ameliorate[s] the strict common law rule that the owner is entitled to the

improvements placed by another upon his property” by allowing a good faith

improver to receive monetary compensation for the value of improvements he

made to property he possessed under color of title).

For his part, Rushton does not dispute the availability of relief for Reynolds

under the UOCS. Instead, Rushton argues that Reynolds cannot obtain relief from

a constructive trust, with which we agree.6

 And Rushton argues that Reynolds

“cannot assert a damage claim for the loss of use of the [house] . . . [because] he

consented . . . [to] vacate[] the premises,” Rushton’s Reynolds Br. at 21, but that

has nothing to do with whether Reynolds can assert a claim for the value of

improvements he made to the scale house. Hence Rushton has failed to meet his

burden of proving § 363(m) mootness because relief is still available under the

UOCS. On § 363(m) mootness, the district court’s opinion cannot stand.

As for equitable mootness, at oral argument, Rushton conceded that

equitable mootness would not apply to a purely statutory claim for money—e.g.,

Reynolds’s UOCS counterclaim here. And while “[a] party’s concession of legal

error . . . cannot, standing alone, justify reversing a district court,” United States

6

 Like ANR, Reynolds did not raise the issue of a constructive trust in the

district court. Thus, like ANR, Reynolds has waived any such relief. Only a

remedy under the UOCS has been preserved.

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v. Avery, 295 F.3d 1158, 1169 (10th Cir. 2002) (emphasis added), Rushton’s

concession is not the only basis for reversal. In addition to Rushton’s concession,

the district court’s equitable mootness finding is undermined by a false premise. 

The district court concluded the appeal was equitably moot in part by assuming

that Reynolds’s only relief was recovery of the scale house. See, e.g., Reynolds

App. 152 (“The Court is also persuaded that a return of the Reynolds family to

the scale house would result in a devaluation of the C.W. Mining estate . . . .”). 

In fact, the monetary relief Reynolds seeks under the UOCS does no such thing.

Therefore, we reverse the district court’s dismissal of Reynolds’s appeal.

4. Appeal No. 12-4112 – COP’s Appeal

COP owns the Bear Canyon mine at which C.W. Mining mined coal before

its bankruptcy and asset sale. In a prior appeal, COP sought to establish that its

mining agreement with C.W. Mining “automatically terminated shortly after the

bankruptcy petition was filed,” so the bankruptcy court had erred in determining

that the agreement was still property of the estate. In re C.W. Mining Co., 641

F.3d at 1236. We disagreed with COP’s contract interpretation and affirmed the

bankruptcy court’s order. See id. at 1241–42. Consequently, the COP mining

contract remained C.W. Mining’s asset and, after the asset sale, became Rhino’s

asset.

With this appeal, COP seeks to reverse the bankruptcy court’s

interpretation of another clause from that mining contract, the continuing

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operations clause. This clause requires the mine’s operator to “diligently and

continuously operate” the mine. COP App. 443. COP has alleged that, during

C.W. Mining’s bankruptcy, C.W. Mining was in default of this provision. For

this claim, COP sought alleged damages of over $10 million in the bankruptcy

court. But the bankruptcy court disagreed with COP’s more expansive definition

of the clause and, as a result, concluded that the estate owed COP only

$1,320,930.89 for C.W. Mining’s defaults. Id. at 434. COP then appealed to the

district court. But while the appeal was pending, COP’s contract with C.W.

Mining was sold to Rhino as part of the bankruptcy estate’s asset sale, and

Rushton, Rhino, and Castle Valley moved to dismiss COP’s appeal under

§ 363(m) mootness.

In opposition to their motion to dismiss, COP argued that § 363(m) did not

moot the appeal because its appeal “merely seek[s] a determination or explanation

of contractual rights, without seeking reversal of the sale.” Id. at 327. More

specifically, COP was seeking “a different interpretation of [the continuing

operations clause] going forward.” Id. at 331.

The district court rejected this remedy as impermissible under § 363(m),

and the district court was correct to do so. By changing the interpretation of

COP’s mining contract, which Rhino purchased in good faith from the estate,

COP would be altering the definition and value of the assets Rhino purchased,

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which would violate § 363(m)’s bar on any “modification . . . [that] affect[s] the

validity of [the] sale.”

In this appeal, COP effectively concedes that the remedy it sought in the

district court cannot be granted in light of § 363(m). See, e.g., COP Br. at 17

(“COP is entitled to monetary remedies against the [e]state . . . . To be clear,

such a remedy would come from the estate and not Rhino.”). Now, COP seeks

compensation only from the sale proceeds in the estate’s possession.

Yet as with ANR’s appeal, we will not reverse the district court based on a

theory not presented to it. And monetary relief was not adequately presented to

the district court. Granted, in a footnote, COP told the district court, “[M]onetary

relief is another available remedy that will not disturb the Sale Order. The sale

proceeds from the sale of the mine assets have not been completely disbursed and

may be used to provide an effective or ‘meaningful’ remedy to COP.” COP App.

331 n.21. But “[a]rguments raised in a perfunctory manner, such as in a footnote,

are waived.” United States v. Berry, 717 F.3d 823, 834 n.7 (10th Cir. 2013)

(emphasis added; internal quotation marks omitted).

And even if we find that COP actually preserved monetary relief as a

possible remedy,7

 we still conclude that Rushton satisfied his burden of proving

7

 We recognize COP may have preserved the issue of monetary relief,

despite the issue being raised only in a footnote, because the district court still

considered it. True, the district court then rejected the remedy by relying on In re

Simon, an unpublished decision we reject. But we may affirm the district court on

(continued...)

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that COP cannot obtain any relief. In his brief, Rushton explains how COP’s

contract claim cannot succeed because COP cannot show damages, and he

explains how COP’s constructive trust theory cannot succeed because COP cannot

trace the value of its mining agreement to specific assets in the estate’s

possession and because COP cannot show that the estate was unjustly enriched. 

COP’s only counter is that the “mere existence” of these theories of relief

preclude § 363(m) mootness. But COP is mistaken: The mootness question does

not turn on what relief “merely exists.” Rather, “[t]he mootness question turns on

what relief is available to COP if it were to prevail in this appeal.” In re C.W.

Mining Co., 641 F.3d at 1239 (emphasis added); cf. Arbaugh v. Y&H Corp., 546

U.S. 500, 513 n.10 (2006) (“A claim . . . may be dismissed for want of subjectmatter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely

for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and

frivolous.’”). And COP has not rebutted Rushton’s arguments that COP’s

proposed theories are not available here, thus making it clear that, under the

7

(...continued)

alternate grounds, as we do here, and the district court’s subsequent conclusion

about COP’s monetary relief claim is correct: “It is unclear . . . how COP could

allege a claim against the proceeds of the sale to Rhino based upon the future

interpretation and application of the Continuous Operations Clause.” COP App.

613. COP did not begin to explain how that remedy might work until its reply

brief before this court, which is too late. See Hill v. Kemp, 478 F.3d 1236,

1250–51 (10th Cir. 2007); Headrick v. Rockwell Int’l Corp., 24 F.3d 1272,

1277–78 (10th Cir. 1994) (White, J., sitting by designation).

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undisputed facts in this record, COP cannot prevail on its alternate theories even

if its appeal were permitted to proceed below.

We therefore affirm the district court’s conclusion that COP’s appeal is

moot under § 363(m).

C. COP and Hiawatha Appeal the Sale Order – Nos. 12-4132 & 12-4144 

With these appeals, COP and Hiawatha challenge the bankruptcy court’s

order approving the sale of C.W. Mining’s assets to Rhino. But because neither

COP nor Hiawatha requested a stay of the sale order, § 363(m) “forecloses any

remedy . . . that would affect the validity of the trustee’s sale.” In re C.W.

Mining Co., 641 F.3d at 1239. 

Recognizing this impediment, COP and Hiawatha ask us to acknowledge

remedies they seek in other appeals. Specifically, both ask that we find

arguments made in their first appeals (No. 12-4102 for Hiawatha and No. 12-4112

for COP) not waived for failure to appeal the sale order. But as discussed above,

we do not find any arguments waived for that reason. Because COP and

Hiawatha seek no other relief in their second appeals, there is no relief we can

grant, and those appeals, Nos. 12-4132 and 12-4144, are accordingly moot.

III. Conclusion

For the foregoing reasons, we DISMISS Rhino and Castle Valley from

these appeals, we AFFIRM Nos. 12-4091, 12-4102, 12-4112, 12-4132, and 12-

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4144, and we REVERSE and REMAND No. 12-4106 to the district court for

further proceedings consistent with this opinion.

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