AAR, Inc. v. Century Invst Group, L.L.C. , 408 F. App'x 828 ( 2011 )

Case: 10-30179 Document: 00511352905 Page: 1 Date Filed: 01/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2011
No. 10-30179 Lyle W. Cayce
Clerk
AAR, INCORPORATED,
Plaintiff - Cross Claimant - Appellee
v.
RANDY NUNEZ,
Defendant - Cross Defendant - Appellant
ST. BERNARD PARISH GOVERNMENT,
Plaintiff
v.
AAR, INCORPORATED,
Defendant - Appellee
v.
RANDY NUNEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CV-7; 2:08-CV-4194
Case: 10-30179 Document: 00511352905 Page: 2 Date Filed: 01/14/2011
No. 10-30179
Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Raising issues for the first time on appeal, Randy Nunez challenges two
summary judgments awarding AAR, Incorporated, funds claimed by him.
AFFIRMED.
I.
In September 2005, following Hurricane Katrina, Century Investment
Group, LLC, contracted with St. Bernard Parish, Louisiana, to provide recovery
cleanup for the Parish. Century subcontracted with AAR to perform the work;
AAR was not fully paid for its services, however, and was owed $542,058.
Century acknowledged in writing that, as of 8 December 2006, it owed that
amount to AAR. For that work, Century invoiced the Parish, which in turn
invoiced the Federal Emergency Management Agency.
Nevertheless, on 19 June 2007, Century assigned to Nunez, a lawyer in
the Parish, Century’s right to receivables due it from the Parish. Century made
the assignment to avoid an action by Nunez for a defective modular home
Century delivered Nunez’ parents in 2006.
In January 2008, AAR filed an action in district court against Century for
payment due and was granted a default judgment for $542,058, plus interest.
That March, the Parish received $319,822.50 from FEMA, pursuant to the
Parish’s submitted claim for work done under the Century contract. (Nunez and
AAR claim entitlement to this sum.)
That May, from the FEMA payment, the Parish both paid Nunez
$159,972.50 and filed a concursus (interpleader) proceeding in state court for the
remaining $159,850, depositing that amount in the court’s registry. AAR
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
2
Case: 10-30179 Document: 00511352905 Page: 3 Date Filed: 01/14/2011
No. 10-30179
removed the concursus proceeding to district court and consolidated it with its
above-described action against Century, seeking the total amount owed for its
cleanup work.
AAR was granted summary judgment for the $159,850 held in concursus,
plus interest. In granting summary judgment, the court reasoned that Nunez
was not entitled to that amount because Century had acknowledged its debt to
AAR and, therefore, had no right to assign Nunez its rights to the FEMA
payment. AAR, Inc. v. Century Inv. Group, LLC et al., No. 08-0007 (E.D. La. 22
May 2009) (order granting AAR’s first summary-judgment motion).
As noted, AAR also claimed entitlement to the above-described
$159,972.50 paid by the Parish to Nunez; therefore, AAR filed a second
summary-judgment motion for that amount. That motion was granted for the
same reasons the first motion had been. AAR, Inc. v. Century Inv. Group, LLC
et al., No. 08-0007 (E.D. La. 5 Feb. 2010) (order granting AAR’s second
summary-judgment motion).
II.
Nunez challenges both summary judgments, pursuant to two issues he did
not raise in district court. For the following reasons, we decline to consider
either issue.
A.
Nunez claims: he is entitled to a return of both the funds he received from
the Parish and the interpleaded funds because, under Chapter 9 of the Louisiana
Uniform Commercial Code, he qualifies as a perfected secured creditor, making
his claim preferred over AAR’s unsecured claim. Because Nunez did not raise
this issue in district court, the normal de novo standard of review for summary
judgment is not applicable.
Instead, this issue will not be considered unless “extraordinary
circumstances” are present. E.g., AG Acceptance Corp. v. Veigel, 564 F.3d 695,
3
Case: 10-30179 Document: 00511352905 Page: 4 Date Filed: 01/14/2011
No. 10-30179
700 (5th Cir. 2009) (internal citations omitted); State Indus. Prods. Corp. v. Beta
Tech., Inc., 575 F.3d 450, 456 (5th Cir. 2009). Such circumstances exist when
the new issue: involves a pure question of law; and, our refusing to consider it
results in a miscarriage of justice. Veigel, 564 F.3d at 700 (citing N. Alamo
Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996)).
This exception does not apply here. Even assuming the issue raises a pure
question of law, refusing to consider it would not result in the requisite
miscarriage of justice. Nunez has failed to assert “any reason for his failure to
raise this issue below nor shown any unique harm such as to make the result
manifestly unfair if he were not allowed to present this issue to us”. Clark v.
Aetna Cas. & Sur. Co., 778 F.2d 242, 249 (5th Cir. 1985) (emphasis added).
Along that line, Nunez’ not receiving any of the funds paid to the Parish
by FEMA is not manifestly unfair: AAR was owed those funds by Century for
AAR’s cleanup of the Parish, which Century acknowledged in writing; and it is
not unjust for AAR to receive the funds paid to Nunez and the interpleaded
funds, in order to compensate AAR for its services. On the other hand, a
miscarriage of justice would result if Nunez were permitted to recover the funds
paid by FEMA to the Parish, even though AAR was entitled to this payment
under its contract with Century.
B.
Nunez also contends, for the first time in his reply brief, that, even if he
were not a secured creditor: he and AAR were both unsecured creditors; there
is no priority between them; and, therefore, he is entitled to retain the
$159.972.50 paid to him by the Parish and should share ratably in the
interpleaded funds. As stated supra, we decline to consider this even more
belated issue.
Generally, and for obvious reasons, a reply brief is limited to addressing
matters presented by appellant’s opening brief and by appellee’s response brief,
4
Case: 10-30179 Document: 00511352905 Page: 5 Date Filed: 01/14/2011
No. 10-30179
and “is not the appropriate vehicle for presenting new arguments or legal
theories to the court”. United States v. Feinberg, 89 F.3d 333, 340-41 (7th Cir.
1996). Therefore, “[a]n appellant abandons all issues not raised and argued in
its initial brief on appeal”. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994)
(emphasis in original); see also Proctor & Gamble Co. v. Amway Corp., 376 F.3d
496, 499 n.1 (5th Cir. 2004).
III.
For the foregoing reasons, the judgment is AFFIRMED.
5