IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20655

In the matter of: RICHARD DAVIS,

 Debtor

PHILIPPE TANGUY; 13,500 AIR EXPRESS, L.L.C.; 13,500 AIR EXPRESS, 

L.P.; PTRE HOLDINGS, L.P., 

 Appellants

v.

WILLIAM G. WEST, 

 Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:17-CV-615

Before KING, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Philippe Tanguy, 13,500 Air Express, L.L.C., 13,500 Air Express, L.P., 

and PTRE Holdings, L.P. (collectively, “Appellants”) appeal the order of the 

United States Bankruptcy Court for the Southern District of Texas authorizing 

the trustee sale of real property, ultimately executed by Trustee-Appellee

 

* Pursuant to 5TH CIR. R. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 5, 2018

Lyle W. Cayce

Clerk

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William West. Because Appellants have abandoned their challenge to the 

district court’s opinion and, alternatively, Appellants’ claims are moot, we 

AFFIRM.

I. Background

On February 1, 2017, Trustee-Appellee William West filed a motion in 

federal bankruptcy court under 11 U.S.C. § 363(f) to sell the property at issue 

to Croix Custom Homes (“Croix”), which he had recovered in collecting a 

judgment against Appellants. Appellants objected, and West responded with 

an emergency motion to strike the objection because, he argued, Appellants’ 

attorney had stated that Appellants would not object to the sale of the property 

at the status conference.

The bankruptcy judge held a combined hearing on the emergency motion 

to strike and the underlying motion to sell. First, the bankruptcy judge struck 

Appellants’ objection and estopped them from opposing the sale “based on the 

representation made on the record at the 1-24-2017 hearing by counsel for 

[Appellants] . . . that his clients ‘don’t object to them filing a Motion to sell and 

we will not object to the sale.’” Second, the bankruptcy judge granted West’s 

motion to sell, effective immediately, which allowed West to immediately sell 

the property. Appellants did not seek a stay of the sale pending appeal. 

Although bids were permitted for the property other than Croix’s original bid, 

none were received. West subsequently sold the property to Croix on February 

17, 2017. Appellants filed their notice of appeal of the order of sale to the 

district court on February 23, 2017.

West filed a motion to dismiss in the district court, arguing that 11 

U.S.C. § 363(m) rendered Appellants’ appeal moot.1 He argued that, because 

 

1 Section 363(m) does not expressly cross-reference § 363(f), the subsection relevant

here. That being said, any question as to whether § 363(m) applies to a determination under 

§ 363(f) has not been briefed by the parties on appeal and is abandoned. See Gen. Elec. 

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Appellants had not requested a stay, § 363(m) removed jurisdiction from the 

district court on appeal by mooting any of Appellants’ requests that would 

negate the sale of the property. Appellants then filed both an initial brief and 

an objection to the motion to dismiss, primarily arguing that the federal 

bankruptcy court did not have jurisdiction to order the property’s sale. They 

argued that the State had receivership over the property, and therefore, that 

the state court had exclusive jurisdiction under the Rooker-Feldman doctrine.2 

They noted that a different federal bankruptcy judge in the same bankruptcy 

case had earlier abstained from ordering the sale of the property and argued 

that that bankruptcy judge’s decision was res judicata in the action here.3 The 

district court granted West’s motion to dismiss Appellants’ appeal as moot. 

Appellants timely appealed.

 

Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 374–75 (5th Cir. 2005) (noting that any 

argument not made in their initial briefing by the parties on appeal is abandoned), overruled 

on other grounds as recognized by Husky Int’l Elecs., Inc. v. Ritz (In re Ritz), 832 F.3d 560, 

565 n.3 (5th Cir. 2016). In any case, the general consensus is that § 363(m) applies to 

determinations under § 363(f). See James Lockhart, Construction and Application of 11 

U.S.C.A. § 363(m), Protecting Good Faith Purchaser Under Bankruptcy Code—Issues Other 

Than Status as “Good Faith Purchaser,” 48 A.L.R. Fed. 2d 83, § 4 (2010) (collecting cases). 

But see Clear Channel Outdoor, Inc. v. Knupfer (In re PW, LLC), 391 B.R. 25, 37 (B.A.P. 9th 

Cir. 2008) (declining to apply § 363(m) to a sale free and clear of a lien under § 363(f)). This 

makes sense, as, first, both § 363(m) and § 363(f) cross-reference the same other subsections,

11 U.S.C. § 363(b) and (c), and second, § 363(f) applies “when the challenged provision is 

‘integral to the sale’ of the debtor’s assets,” which is clearly the case here under § 363(f). See 

Newco Energy v. Energytec, Inc. (In re Energytec, Inc.), 739 F.3d 215, 220 (5th Cir. 2013)

(quoting Official Comm. of Unsecured Creditors v. Trism, Inc. (In re Trism, Inc.), 328 F.3d 

1003, 1007 (8th Cir. 2003)).

2 The doctrine is so named in reference to the Supreme Court cases D.C. Court of 

Appeals v. Feldman, 460 U.S. 462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 

(1923).

3 Judge Letitia Paul was the original bankruptcy judge on this case, and the minutes 

on July 21, 2016, reflect: “the Court permissively abstains from consideration of the instant 

motion.” Judge Jeff Bohm, to whom the case was transferred, entered the February 2017 

order in question on appeal.

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II. Discussion

The only determination made by the district court in this case was that 

this case was moot under § 363(m).4 West argues that Appellants have 

abandoned any argument contesting the district court’s finding of mootness 

because they did not address it in their initial briefing. “An assertion that a 

ruling is being appealed, in the absence of any argument in the body of the 

brief supporting the appeal, does not preserve the issue on appeal.” Gen. Elec. 

Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 374–75 (5th Cir. 2005), 

overruled on other grounds as recognized by Husky Int’l Elecs., Inc. v. Ritz (In 

re Ritz), 832 F.3d 560, 565 n.3 (5th Cir. 2016). This principle applies in full 

force to a district court’s determination that an appeal from a bankruptcy court 

decision is moot. See Black v. Shor (In re BNP Petroleum Corp.), 642 F. App’x 

429, 434 (5th Cir. 2016) (per curiam);5 accord Loral Stockholders Protective 

Comm. v. Loral Space & Commc’ns Ltd. (In re Loral Space & Commc’ns Ltd.),

266 F. App’x 52, 53 (2d Cir. 2008).

Here, Appellants do not cite to § 363(m) at all in their opening brief. 

However, they argue that their opening brief implicitly challenged the good 

faith of Croix in purchasing the property, which is a consideration in 

determining if § 363(m) applies, and therefore, did preserve the argument for 

appeal. See § 363(m) (“The reversal or modification on appeal of an 

authorization [of a trustee’s] 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 . . . .” (emphasis added)). We have 

 

4 The district court had jurisdiction over an appeal from the final decision of a 

bankruptcy judge under 28 U.S.C. § 158(a). We have jurisdiction under 28 U.S.C. § 1291 

from the final judgment of a United States district court.

5 Although an unpublished opinion issued by this court after January 1, 1996 is not 

“controlling precedent,” it “may be [cited as] persuasive authority.” Ballard v. Burton, 444 

F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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previously suggested that good faith is a separate argument from § 363(m), 

such that arguing good faith alone would not preserve an argument that a case 

was not moot under § 363(m). See In re BNP Petroleum, 642 F. App’x at 434 

(determining that the mootness argument under § 363(m) was abandoned, 

despite the fact that good faith was briefed, and separately analyzing the good 

faith argument). However, even if arguing good faith would preserve a 

§ 363(m) mootness determination for appeal, Appellants did not argue good 

faith in their opening brief. Their citation to the opening brief contains an 

argument that West and his counsel acted without good faith regarding 

disclosure to the bankruptcy court of the pending state court action. That 

inquiry is not relevant to the good faith of a purchaser under § 363(m). We 

cannot find anywhere in the record where Appellants specifically argued that 

Croix did not act in good faith prior to their reply brief on appeal.

Based upon this analysis, Appellants have abandoned their argument 

that the district court’s case is not moot. Furthermore, even if the argument 

had not been abandoned, we would still affirm the district court’s 

determination that Appellants’ claims are moot.6

 Section 363(m) states, as relevant here: 

The reversal or modification on appeal of an 

authorization [of a trustee’s] 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.

In other words, “[§] 363(m) patently protects, from later modification on appeal, 

 

6 “We review de novo the district court’s dismissal of an appeal from the bankruptcy 

court as moot.” Ginther v. Ginther Trs. (In re Ginther Trs.), 238 F.3d 686, 688 (5th Cir. 2001)

(per curiam).

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an authorized sale where the purchaser acted in good faith and the sale was 

not stayed pending appeal.” Gilchrist v. Westcott (In re Gilchrist), 891 F.2d 

559, 560 (5th Cir. 1990). This means, absent a lack of good faith, any appeal 

brought by a debtor is moot following sale of the property when there was no 

stay pending appeal. Id. This is true even if the debtor argues that the 

bankruptcy court did not have jurisdiction to authorize the sale. Id. at 560–

61; see also Ginther v. Ginther Trs. (In re Ginther Trs.), 238 F.3d 686, 689 (5th 

Cir. 2001) (per curiam).

Here, Appellants do not contest the fact that in the bankruptcy court,

they did not request, and were not granted, a stay pending appeal. They also 

do not contest that the property at issue was sold prior to their appeal of the 

bankruptcy court’s determination. Therefore, unless there is evidence that 

Croix bought the property without good faith, Appellants’ claims are moot.

“The proponent of ‘good faith’ bears the burden of proof” as to whether it 

acted in good faith. O’Dwyer v. O’Dwyer (In re O’Dwyer), 611 F. App’x 195, 200 

(5th Cir. 2015) (per curiam) (quoting TMT Procurement Corp. v. Vantage 

Drilling Co. (In re TMT Procurement Corp.), 764 F.3d 512, 520 (5th Cir. 2014) 

(per curiam)). However, naturally, good faith must be in question prior to a 

party being required to prove good faith. Importantly, “[a] party may not 

challenge a purchaser’s good faith status under § 363(m) for the first time on 

appeal.” Id.; see also Schum v. Zwirn Special Opportunities Fund LP (In re

The Watch Ltd.), 257 F. App’x 748, 750 (5th Cir. 2007) (per curiam) (citing In 

re Gilchrist, 891 F.3d at 561, and In re Ginther Trs., 238 F.3d at 688–89). In 

other words, we do not consider arguments related to the good faith of a 

purchaser that were not raised before the bankruptcy court. See Gilchrist, 891 

F.2d at 561 (“It is well established that we do not consider arguments or claims 

not presented to the bankruptcy court.”); accord In re Ginther Trs., 238 F.3d at 

689.

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Again, Appellants have the problem that there is no indication that they 

challenged Croix’s good faith status at any point prior to their reply brief on 

appeal. Appellants note only that they made arguments in their district court 

briefing and opening brief on appeal that West and his counsel did not make 

certain disclosures to the bankruptcy court. Although Appellants concede that 

they did not address good faith in the bankruptcy court, they argue that they 

could not do so because the bankruptcy court held that they were estopped 

from opposing the sale “based on the representation made on the record at the 

1-24-2017 hearing by counsel for [Appellants] . . . that his clients ‘don’t object 

to them filing a Motion to sell and we will not object to the sale.’”

That being said, Appellants were not barred from making the argument 

at all. Appellants filed a (later stricken) brief with the bankruptcy court on 

the question of the bankruptcy court’s jurisdiction, along with an objection to 

the West’s motion to strike, neither of which contested Croix’s good faith. The 

bankruptcy judge determined that Appellants were estopped from opposing 

the sale during an oral hearing, at which time Appellants did not make a 

motion to proffer additional evidence related to good faith. See Byrd v. 

Heinrich Schmidt Reederei, 688 F.2d 324, 325–27 (5th Cir. 1982) (en banc) 

(indicating that requesting to proffer evidence following a sustained objection 

preserves the issue for appeal), trial court judgment reversed on other grounds 

after reh’g sub nom., Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) (en 

banc). Appellants did not file any further motions or request leave to file 

subsequent briefing following the bankruptcy court’s decision to estop them 

from contesting the sale. The point is that Appellants had an opportunity to 

create a record on this issue, and they failed to do so. Thus, there is no reason 

in this situation to depart from our general principle that arguments need to 

be made before the bankruptcy court to be heard on appeal. Thus, Appellants’ 

claims are moot.

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AFFIRMED.

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