                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 11-14401         ELEVENTH CIRCUIT
                                                      MARCH 1, 2012
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                  D.C. Docket No. 1:10-cv-03260-TWT

JAMES B. TAFEL, JR.,

                                              Plaintiff-Counter Defendant-
                                              Appellee,

                                 versus

LION ANTIQUE INVESTMENTS & CONSULTING SERVICES,

                                              Defendant-Counter Claimant-
                                              Appellant.

                        ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________
                            (March 1, 2012)


Before TJOFLAT, EDMONDSON, and COX, Circuit Judges.

PER CURIAM:
        Lion Antique Investments and Consulting Services (“Lion”) appeals the

summary judgment granted in favor of James B. Tafel, Jr. (“Tafel”) on Tafel’s claim

seeking a declaration that a promissory note is invalid and unenforceable. We affirm.

        Tafel is the former CEO of Tafel Racing. In January of 2008, Tafel Racing and

East Coast Jewelry (“East Coast”) entered a purchase agreement for a Ferrari race car.

Under the agreement, East Coast would pay Tafel Racing $700,000 in ten

installments in exchange for the race car and some advertising services. No one

disputes that Tafel Racing received most of this $700,000 but never delivered a car

to East Coast.

        On February 13, 2009, Tafel gave a non-negotiable1 note (the “Note”) to non-

party Vladislav Yampolsky (“Yampolsky”), a partial owner of East Coast.

Yampolsky later assigned his interest in the Note to Lion. In the Note, Tafel

promised to pay Yampolsky the principal amount of $600,000 plus accrued interest

of $22,454.14 “in consideration of advances by Yampolsky to Tafel, net of certain

credits.” (R. 1, Ex. A at 1.) According to the Note, a lien on Tafel’s personal

residence secured this debt. Nevertheless, Tafel has never made payment on the

Note.



        1
        The parties agree that the Note is not a negotiable instrument. (R. 37 at 3; R. 22-1 at 7.)
Thus, Georgia contract law governs this appeal.

                                                2
       Tafel filed a complaint against Lion seeking a declaratory judgment that the

Note was unenforceable due to a lack of consideration. Lion counterclaimed for

breach of contract. Both parties filed motions for summary judgment. When ruling

on the motions, the district court agreed with Tafel that the Note lacked consideration

and granted Tafel’s motion for summary judgment. Lion appeals. Lion challenges

this ruling and raises the following issues2: first, whether adequate consideration

supports the Note; and second, whether judicial estoppel prevents Tafel from

challenging the validity of the Note.

       “We review a grant of summary judgment by a district court de novo.” Gish

v. Thomas, 516 F.3d 952, 954 (11th Cir. 2008) (citing Cruz v. Publix Super Mkts.,

Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)). “We apply the same legal standards as

the district court and view all facts and reasonable inferences in the light most

favorable to the nonmoving party.” Id. (citing Strickland v. Water Works & Sewer

Bd., 239 F.3d 1199, 1203 (11th Cir. 2001)). “[W]e review the district court’s

application of judicial estoppel for abuse of discretion.” Robinson v. Tyson Foods,

Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (citing Talavera v. Sch. Bd. of Palm Beach

Cnty., 129 F.3d 1214, 1216 (11th Cir. 1997).


       2
          Lion also argues that the district court erred by denying its motion for summary judgment
seeking to enforce the Note. Because we hold the Note lacked adequate consideration, we conclude
the district court did not err in denying Lion’s motion for summary judgment.

                                                3
      Lion argues that the Note’s recitals contain evidence of consideration. It also

asserts that the Note resulted from a bargained for exchange. As evidence of this

bargain, Lion suggests Yampolsky agreed to delay collection activities on a debt

Tafel Racing owed East Coast, agreed to accept less than the statutorily allowed rate

of interest on this debt, and reduced the amount owed on the debt. In exchange, Tafel

secured the Note by placing a lien on his residence. We agree with the district court

that neither the recited consideration nor this suggested bargain provide adequate

consideration.

      As the district court explained in its well-reasoned opinion, the recited

consideration was past consideration and cannot support the contract. (R. 39 at 5);

see also Whitmire v. Watkins, 267 S.E.2d 6, 7 (Ga. 1980) (“The general rule is that

a past consideration will not support a subsequent promise.” (quoting Bankers’ Trust

& Audit Co. v. Farmers’ & Merchants’ Bank, 136 S.E. 143, 143 (Ga. 1926))). The

district court also correctly disposed of Lion’s argument that a bargained for

exchange establishes consideration for the Note. The court reasoned that there was

no evidence East Coast assigned any claim it might have against Tafel or Tafel

Racing to Yampolsky. (R. 39 at 7-8.) Nor does the evidence show Yampolsky

agreed to forfeit any rights East Coast might have against Tafel Racing for Tafel

Racing’s failure to deliver a race car. (Id. at 6-7.) Thus, having considered the briefs

                                           4
and relevant parts of the record, we hold the Note was unenforceable for the reasons

stated in the district court’s opinion.

      We also hold that the district court did not abuse its discretion by failing to

apply judicial estoppel. As Tafel highlights in his brief, Lion raised its judicial

estoppel argument in its reply brief in support of its motion for summary judgment.

(Appellee Br. at 32-33.) The district court had no obligation to consider an argument

raised for the first time in the reply brief. United States v. Ga. Dep’t of Natural Res.,

897 F. Supp. 1464, 1471 (N.D. Ga. 1995). Therefore, it did not abuse its discretion

by failing to address this argument.

      AFFIRMED.




                                           5
