     Case: 13-30013       Document: 00512332029         Page: 1     Date Filed: 08/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 5, 2013

                                     No. 13-30013                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LLOYD RAYMOND MARTIN, III; NICOLE EASTERWOOD MARTIN,

                                                  Plaintiffs-Appellants
v.

FIDELITY NATIONAL TITLE INSURANCE COMPANY,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-4195


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Lloyd and Nicole Martin filed suit against
Defendant-Appellant Fidelity National Title Insurance Co., asserting claims for
breach of title insurance policy and bad faith. The district court granted
Fidelity’s motion for summary judgment on the Martins’ claims, and the Martins
appealed. For the following reasons, we AFFIRM the district court’s judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-30013    Document: 00512332029     Page: 2   Date Filed: 08/05/2013



                                 No. 13-30013

             I. FACTUAL AND PROCEDURAL BACKGROUND
      Central to this case is the chain of title to property owned by Lloyd and
Nicole Martin (the “Martins”) in St. Tammany Parish, Louisiana. The property
originally appears to have been owned by Herbert Nill. It then was acquired by
Herbert Nill’s son, William C. Nill, in 1959, and redeemed by him from a tax sale
in 1988. On February 14, 2001, Hickory Glade, Inc. (“Hickory Glade”), despite
holding no recorded interest, conveyed its interest in the property by quitclaim
deed to William Magee, one of Hickory Glade’s directors and officers. Magee
proceeded to file a petition for declaratory judgment in Louisiana state court
against Herbert and William C. Nill, their spouses, heirs, and assigns (the
“Nills”) on April 9, 2002, seeking recognition of ownership of the property.
Because the attorney appointed by the state court to represent the Nills appears
never to have contacted them, the Nills did not respond to Magee’s suit. As a
result, the state court entered a default judgment declaring Magee the owner of
the property.
      Magee then donated part of the property to the Great Commission
Foundation of Campus Crusade for Christ, Inc. (“Great Commission
Foundation”). Shortly thereafter, Magee and the Great Commission Foundation
sold the property to Buddy Coate Homes, LLC (“Buddy Coate”). On August 16,
2005, Buddy Coate filed a petition for declaratory judgment in state court to
quiet title against the Nills. Perhaps not coincidentally, Magee represented
Buddy Coate in this action. As before, a default judgment was entered against
the Nills.
      Buddy Coate then sold the property to Mark and Kristen Graziani. The
Grazianis, in turn, sold the property to the Martins. However, when the Martins
tried to sell the property to Adam and India Sachitano, the Sachitanos’ closing
agent identified a problem with the Martins’ title. After the attempted sale to
the Sachitanos failed, the Martins filed a claim with their title insurance

                                       2
    Case: 13-30013     Document: 00512332029      Page: 3   Date Filed: 08/05/2013



                                  No. 13-30013

provider, Fidelity National Title Insurance Co. (“Fidelity”). The claim alleged
a defect in title created by Magee’s acquisition of the property from Hickory
Glade.   Fidelity proceeded to conduct an investigation and identified two
surviving descendants of William C. Nill—Pamela Cummings and Paula
Windham. A third descendant, William P. Nill, previously had died intestate
without a spouse or dependants. Cummings and Windham executed quitclaim
deeds in the Martins’ favor for the sum of $16,000. They also executed Affidavits
of Death, Domicile and Heirship as to their father, William C. Nill, and their
brother, William P. Nill.
      Fidelity presented the quitclaim deeds to the Martins, who refused to
accept them in satisfaction of Fidelity’s obligation under the title insurance
policy. Fidelity nevertheless recorded the deeds in St. Tammany Parish’s
conveyance records. Later, Fidelity also obtained quitclaim deeds and affidavits
from other heirs of Herbert Nill for $16,500.
      On June 29, 2009, the Martins filed suit against Fidelity in district court
for alleged breach of the title insurance policy and bad faith. Fidelity filed a
third-party complaint in subrogration against the Martins’ predecessors-in-title,
including, inter alia, Magee, Buddy Coate, and the Grazianis. Magee and Buddy
Coate moved for summary judgment on Fidelity’s claims, which the district court
denied on September 26, 2011. Then, on May 8, 2012, Fidelity filed motions for
summary judgment against the Martins, Magee, and Buddy Coate. The district
court granted Fidelity’s motions on September 11. The court found that Fidelity
had the right under the title insurance policy to attempt to cure the defect in the
Martins’ title, and did so by procuring quitclaim deeds from William C. Nill’s
only heirs.   Accordingly, the court concluded that the Martins now held
merchantable title. Finally, the district court rejected the Martins’ argument
that they were entitled to statutory penalties resulting from damages they



                                        3
    Case: 13-30013     Document: 00512332029      Page: 4   Date Filed: 08/05/2013



                                  No. 13-30013

suffered as a result of being unable to sell their home, refinance it, or use it as
collateral.
      The Martins, Magee, and Buddy Coate filed motions to alter or amend the
district court’s order. The district court denied the Martins’ motion. It granted
Magee and Buddy Coate’s motion to reduce the damages award against them to
$16,000—the amount Fidelity paid to William C. Nill’s daughters for the
quitclaim deeds. The Martins then timely appealed the district court’s dismissal
of their claims.
                        II. STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Lindquist v. City of Pasadena Tex., 669
F.3d 225, 232 (5th Cir. 2012). The district court’s judgment should be affirmed
“if, viewing the evidence in the light most favorable to the non-moving party,
there is no genuine dispute [as] to any material fact and the movant is entitled
to judgment as a matter of law.” United States ex rel. Jamison v. McKesson
Corp., 649 F.3d 322, 326 (5th Cir. 2011); see Fed. R. Civ. P. 56(a).
                              III. DISCUSSION
      At the outset we note that the majority of the Martins’ arguments are
raised for the first time on appeal. Although the Martins present several
reasons why these arguments were not raised below, none of them constitutes
the kind of “extraordinary circumstances” we have required to deviate from our
“general rule [that] arguments not raised before the district court are waived
and will not be considered on appeal.” AG Acceptance Corp. v. Veigel, 564 F.3d
695, 700 (5th Cir. 2009) (citation omitted); see also N. Alamo Water Supply Corp.
v. City of San Juan, Tex., 90 F.3d 910, 916 (5th Cir. 1996) (“Extraordinary
circumstances exist when the issue involved is a pure question of law and a
miscarriage of justice would result from our failure to consider it.”). Thus, the
Martins argue that their “trial counsel did a poor job of exposing the deficiencies

                                        4
     Case: 13-30013      Document: 00512332029         Page: 5    Date Filed: 08/05/2013



                                      No. 13-30013

of Fidelity’s arguments,” effectively leaving the Martins as pro se litigants. But
mere dissatisfaction with counsel’s representation does not entitle the Martins
to raise what they perceive as better arguments on appeal. See Pryor v. U.S.
Postal Serv., 769 F.2d 281, 288–89 (5th Cir. 1985) (remedy for counsel’s mistakes
or omissions resulting in dismissal of suit is to seek malpractice damages); cf.
Price v. Hous. Auth. of New Orleans, 453 F. App’x 446, 448–49 (5th Cir. 2011)
(per curiam) (unpublished) (finding claims of error waived even where waiver
was the result of poor briefing by newly-obtained counsel). Similarly, the fact
that the case was transferred three times within the district court and that
Fidelity purportedly misdirected the district judge’s attention does not excuse
the Martins’ failure to challenge Fidelity’s arguments below. Fruge v. Amerisure
Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011) (per curiam) (“Failure to raise
an argument before the district court waives that argument . . . .”).
       Limited to those arguments that were raised in the district court and are
renewed on appeal, the Martins essentially present two questions for
consideration: first, did Fidelity cure the title defect such that the Martins were
left with merchantable title; and second, did Fidelity breach its obligation of
dealing in good faith.1 We consider each question below.
I.     Merchantability of Title
       Under Louisiana law, a title to property is merchantable when the title
“can be readily sold or mortgaged in the ordinary course of business by
reasonable persons familiar with the facts and apprised of the questions
involved.” Deleon v. WSIS, Inc., 728 So. 2d 1046, 1049 (La. Ct. App. 1999).
Although the title need not be free from every technical defect, suspicion, or
possibility of litigation, it must be “free of rational substantial doubt to the


       1
         The Martins’ third issue on appeal—that Fidelity did not have the right to cure the
title defect because of the terms of the title insurance policy and because the Sachitanos
decided not to purchase the property—was not argued in the district court.

                                             5
     Case: 13-30013       Document: 00512332029         Page: 6     Date Filed: 08/05/2013



                                       No. 13-30013

extent that a purchaser should feel that he can hold his purchase in peace
without the probability of attack and with reasonable assurance that it will be
readily salable on the open market.” Id. “Title does not become unmerchantable
merely because litigation is possible, but only when the title is reasonably
suggestive of future litigation.” Bart v. Wysocki, 558 So. 2d 1326, 1328–29 (La.
Ct. App. 1990).
       The district court concluded that the Martins’ title was merchantable after
considering the two chains through which title to the property may have passed.
The first chain traced the title from William C. Nill to his daughters, Cummings
and Windham, and his son, William P. Nill. The second chain originated with
Hickory Glade, which manufactured an interest in the property that it then
conveyed to Magee. Magee in turn conveyed part of the property to the Great
Commission Foundation. Magee and the Great Commission Foundation then
sold their interests in the property to Buddy Coate, which sold the property to
the Grazianis. According to the district court, Fidelity successfully cured the
defect because the Martins ended up in possession of the property regardless of
which chain of title prevailed. If title flowed through Magee, then the Martins’
purchase of the property from the Grazianis was valid. Alternatively, if title
remained with the Nills, Fidelity’s recording of William C. Nill’s daughters’
quitclaim deeds again left the Martins in sole possession of the property.
       The Martins resist this conclusion on the ground that it is in conflict with
the district court’s earlier finding that a genuine issue of material fact existed
as to the merchantability of title based on the two state court judgments that
declared first Magee and then Buddy Coate the owners of the property, as well
as Hickory Glade’s quitclaim deed.2 They argue that “[n]o responsible title


       2
          The Martins also argue that the district court failed to look to the title insurance
policy’s definition of merchantability in determining whether title was merchantable. Aside
from not having been raised in district court, the Martins’ argument also misses the mark.

                                              6
     Case: 13-30013       Document: 00512332029          Page: 7     Date Filed: 08/05/2013



                                       No. 13-30013

examiner could be expected to pass over the conflicting claims of record between
the declaratory judgments on which Fidelity’s title examiner erroneously relied
clearing the title, and the quitclaim deeds by which Fidelity has established two
other competing and broken lines of title.”
       The Martins ignore the circumstances under which the district court’s
prior opinion was rendered. In September 2011, the district court, denying
Magee and Buddy Coate’s motion for summary judgment, reasoned that “the
[Hickory Glade] quitclaim deed and two state court declaratory judgments are
clouds on the title to the Martin Property.” Martin v. Fid. Nat’l Title Ins. Co.,
No. 09-4195, 2011 WL 4478431, at *3 (E.D. La. Sept. 26, 2011). The district
court rejected Magee and Buddy Coate’s argument that they had conveyed
merchantable title because Hickory Glade “was not the record owner of the
property and had no interest in the property to quitclaim, [and thus] the
quitclaim did not transfer anything to Magee.” Id. Additionally,
       [A]t the time of the [Martins’] purchase, the Nills could arguably
       still attack the default judgments as null on the grounds of fraud or
       ill practices. . . . The Nills were not notified of the quitclaim or the
       subsequent declaratory judgments, and there is nothing in the
       record to suggest they were aware of these events. Thus, there is no
       basis for the Court to conclude that the prescriptive period ran on
       the Nills’ ability to attack these transactions. The judgments
       remained clouds on the title when the Martins purchased the
       property.
Id. at *5 (citations omitted). A title examiner also agreed that the default
judgment declaring Magee the owner of the property constituted a cloud on the
title. Id.
       But while the district court’s September 2011 decision addressed Magee
and Buddy Coate’s motion for summary judgment, nothing prevented Fidelity



It is undisputed that there was a defect in the title. The salient question is whether Fidelity
cured that defect.

                                              7
    Case: 13-30013     Document: 00512332029      Page: 8    Date Filed: 08/05/2013



                                  No. 13-30013

from later presenting, and the district court from considering, evidence in
support of Fidelity’s motion for summary judgment that Fidelity had acquired
quitclaim deeds from Michael C. Nill’s heirs on the Martins’ behalf. Indeed, the
district court’s earlier opinion expressly relied on the fact that the Nills could
still challenge the state court default judgments. As the district court later
correctly determined, following the Nills’ quitclaim deeds, the Martins were the
“sole persons remaining with any viable claim to the property.” The “previous
clouds [were] no longer of concern” because “[a]ny risk of substantial litigation
over title to the property would have been from the heirs of Nill who have
quitclaimed their interest in the property to [the Martins].”
      The Martins also argue that the Nills’ quitclaim deeds were ineffective
under Louisiana’s “public records doctrine” because of gaps in the title chains.
“The public records doctrine provides that an instrument involving immovable
property shall be effective against third persons only from the time it is filed for
registry in the parish where the property is located.” Longleaf Invs., L.L.C. v.
Tolintino, 108 So. 3d 157, 160 (La. Ct. App. 2012). “The primary purpose of the
public records doctrine is the protection of third persons from unrecorded
interests.” Carr v. Oaktree Apartments, 46 So. 3d 793, 797 (La. Ct. App. 2010).
The Louisiana Supreme Court has described the public records doctrine as a
negative doctrine “because it does not create rights, but, rather, denies the effect
of certain rights unless they are recorded.” Cimarex Energy Co. v. Mauboules,
40 So. 3d 931, 944 (La. 2010).
      According to the Martins, under the public records doctrine, the Nills’
quitclaim deeds could not cure the title defect because William C. Nill’s
daughters’ affidavits do not describe whether he left any interest in the property
to Dixie Nill, his second wife, or her heirs. Moreover, the affidavits fail to state
whether the property was in William C. Nill’s estate at the time of his death.
Finally, the affidavits do not speak to Herbert Nill’s descendants and

                                         8
     Case: 13-30013       Document: 00512332029          Page: 9     Date Filed: 08/05/2013



                                       No. 13-30013

transferees, including how Verna Nill—Herbert Nill’s widow—acquired her
interest in the property, which she apparently then conveyed to William C. Nill.
       As with many of the Martins’ arguments, their assertion that potential
heirs exist other than those Fidelity discovered was not raised below and is thus
not properly before us. In opposition to Fidelity’s motion for summary judgment,
the Martins only argued that “[t]he succession of all the Nill heirs would have
to be opened and each heir worked through probate and properly put into
possession.” See Batiste v. Theriot, 458 F. App’x 351, 359 (5th Cir. 2012) (per
curiam) (unpublished) (“[Plaintiffs] present no evidence or even more than a
passing reference to these arguments in their briefs and, as such, those
arguments are waived . . . .”). The Martins appear not to have presented
evidence in opposition to summary judgment demonstrating that any of the
potential claims they now discuss are anything more than speculative. See RSR
Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“[C]onclusory
statements, speculation, and unsubstantiated assertions cannot defeat a motion
for summary judgment.”). We again note that merchantability of title only
requires that title be “free of rational substantial doubt.” Deleon, 728 So. 2d at
1049. Aside from having failed to identify to the district court any of the
individual relatives they now rely on, the Martins also have not presented
evidence that any of these relatives have a claim to the property.3 See Keelan v.
Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) (“It is well settled in
this Circuit that the scope of appellate review on a summary judgment order is
limited to matters presented to the district court.”).



       3
         While asserting that they seek a mere legal determination, the Martins’ description
of the universe of possible Nill heirs highlights the factual nature of the inquiry the Martins
ask us to undertake. See N. Alamo Water Supply Corp., 90 F.3d at 916 (court will not consider
newly raised arguments if issue does not involve pure question of law).


                                              9
      Case: 13-30013    Document: 00512332029     Page: 10    Date Filed: 08/05/2013



                                   No. 13-30013

        The Martins’ reliance on Kinler v. Griffen, 251 F.2d 655 (5th Cir. 1958), is
misplaced. In that case, a title examination revealed that there were heirs of a
former owner of a one-half interest in the property who had been placed in
possession by a state court judgment and had never been divested of their
apparent interest. Id. at 657–58. Nothing here, however, indicates that any Nill
heirs the Martins identify were placed in possession of the property.
        We therefore conclude that under the facts of this case the district court
did not err in finding that Fidelity cured the title defect created by Hickory
Glade’s conveyance.
II.     Good Faith Dealing
        The district court rejected the Martins’ request for statutory penalties
because they failed to provide any evidence of these damages or that Fidelity
acted in bad faith. The Martins contend that this finding was in error because
Fidelity delayed paying the Martins’ claim or curing the defect, resulting in their
losing the opportunity to sell the property to the Sachitanos.
        The Martins’ bad faith arguments largely consist of arguments that were
not raised below and that are derivative of their other contentions, including
that Fidelity did not cure the title defect. For example, they argue that Fidelity
did not act in a timely manner in attempting to cure the defect. Similarly, they
assert that the district court could not determine as a matter of undisputed fact
that Fidelity’s decision to cure by acquiring quitclaim deeds from William C.
Nill’s daughters was reasonable. These arguments were not raised below. See
AG Acceptance Corp., 564 F.3d at 700.
        As to the Martins’ contention that they suffered damages from the lost sale
to the Sachitanos, the district court found that the Martins had not submitted
any evidence in support of this finding. In their reply brief, the Martins concede
that they failed “to introduce any probative evidence in response to Fidelity’s
summary judgment motion.” They further admit that their alleged losses were

                                         10
   Case: 13-30013     Document: 00512332029     Page: 11   Date Filed: 08/05/2013



                                 No. 13-30013

not established in the record. Given these admissions and our determination
that the Martins have not met their burden of showing extraordinary
circumstances for us to consider arguments or evidence not presented in district
court, we reject the Martins’ contention that Fidelity acted in bad faith.
                             IV. CONCLUSION
      For the aforementioned reasons, the district court’s judgment is
AFFIRMED.




                                       11
