           Case: 15-13013    Date Filed: 11/20/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                             No. 15-13013
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:12-cv-01095-MHH


DOUG’S COIN & JEWELRY, INC.,
SOUTHERN COIN & COLLECTIBLES, INC.,

                                                           Plaintiffs-Appellants,

                                  versus

AMERICAS VALUE CHANNEL, INC.,
d.b.a. AVC,

                                                           Defendant-Appellee,

JOHN G. BINNS, JR.,

                                                  Defendant - Cross Defendant -
                                                                     Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (November 20, 2015)
               Case: 15-13013     Date Filed: 11/20/2015     Page: 2 of 5


Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Doug’s Coin & Jewelry, Inc., and Southern Coin & Collectibles, Inc.

(collectively “the coin companies”) appeal the summary judgment in favor of

Americas Value Channel, Inc. John G. Binns Jr. marketed valuable coins on

Americas Value Channel in February 2009, but he failed to pay the coin companies

for the coins. The coin companies then sued him and Americas Value Channel.

The coin companies obtained a default judgment against Binns for breach of

contract and conversion and sought to hold Americas Value Channel derivatively

liable on the ground that Binns acted with apparent authority as its agent. The

district court ruled that Binns was not an agent of Americas Value Channel. We

affirm.

      The coin companies argue that the district court failed to consider whether

Binns had implied authority to act on behalf of Americas Value Channel, but we

will not consider an argument not presented to the district court. We have

“repeatedly held that an issue not raised in the district court and raised for the first

time in an appeal will not be considered by this court.” Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (internal quotation marks and

citation omitted). The coin companies contend that their “Brief in Opposition to

[the] Motion for Summary Judgment preserves the arguments . . . regarding


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implied agency,” but their brief cited decisions about apparent authority and

argued that “there is a question of fact whether Binns had apparent authority to

bind AVC to the contract at issue in this matter.” Their brief did not mention

implied authority, which “differs from apparent authority in that it is authority

which the principal intended that the agent should have.” McLemore v. Hyundai

Motor Mfg. Ala., LLC, 7 So. 3d 318, 328 (Ala. 2008) (quoting Patterson v. Page

Aircraft Maint., Inc., 283 So. 2d 433, 436 (Ala. Civ. App. 1973)). And the coin

companies failed to object to the description of their argument as “assert[ing] . . .

[that] AVC clothed Binns with apparent authority” in a magistrate judge’s report

and recommendation that the district court adopted. We will not fault the district

court for failing to consider an argument not presented to it.

      The district court did not err when it ruled that Binns did not act with the

apparent authority of Americas Value Channel. Under Alabama law, which the

parties agree applies, “before there can be apparent authority that implies an

agency relationship, the ‘authority’ must be apparent to the complaining party and

that party must have relied on the appearance of authority.” Brown v. St. Vincent’s

Hosp., 899 So. 2d 227, 238 (Ala. 2004) (quoting Watson v. Auto-Owners Ins. Co.,

599 So. 2d 1133, 1136 (Ala. 1992)). The coin companies shared a business

relationship with Binns that predated his appearance on Americas Value Channel.

He contacted the coin companies; his business card contained his and his brother’s


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contact information; he stated that he would sell the coins on television programs;

and he paid the coin companies with a personal check. Binns operated in the same

manner during several transactions with the coin companies in the fall of 2008 and

during a transaction in December 2009 in which Doug’s Coin delivered coins to

the office of Americans Value Channel. In February 2009, Binns also acted

consistent with his past business practices when he arranged for Doug’s Coin to

deliver the products of both coin companies to Americas Value Channel.

      The owner of Doug’s Coin was not “misled by . . . appearances” or given

“reasonable cause to believe,” see id. at 241 (quoting Union Oil of Cal. v. Crane,

258 So. 2d 882, 887 (Ala. 1972)), by Americas Value Channel that Binns was its

agent. The owner’s testimony and affidavit established that he relinquished the

coins to Binns at the television studio and that he watched a broadcast and

observed transactions in the call center without speaking to an employee of

Americas Value Channel. The owners of both coin companies averred that they

thought Americas Value Channel “would be standing behind” the transactions in

February 2009 because it aired Binns’s programs; displayed its logo, its toll-free

number, and information when displaying Binns’s merchandise; and processed

orders and payments for Binns. But their “mere belief without cause . . . [was] not

enough,” to establish an agency by apparent authority. Id. (quoting Union Oil, 258

So. 2d at 887).


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We AFFIRM the summary judgment in favor of Americas Value Channel.




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