              Case: 14-13907   Date Filed: 01/08/2016   Page: 1 of 3


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-13907
                          ________________________

                       D.C. Docket No. 1:13-cv-03874-AT

BOND SAFEGUARD INSURANCE COMPANY,
LEXON INSURANCE COMPANY,
                                                             Plaintiffs-Appellants,


                                     versus
WELLS FARGO BANK, N.A.,
as successor in interest to Wachovia Bank, N.A.,
KEYBANK, N.A.,
                                                           Defendants-Appellees.

                                                                                  .
                          ________________________

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

                                (January 8, 2016)

Before MARTIN, ANDERSON, and BLACK, Circuit Judges.
                 Case: 14-13907         Date Filed: 01/08/2016        Page: 2 of 3




PER CURIAM:

       After oral argument and careful consideration of the briefs of the parties and

the relevant parts of the record, we conclude that the judgment of the district court

should be affirmed. Plaintiffs-appellants concede that the sole issue they raise on

appeal was not raised in the district court and is raised for the first time on appeal.

Seeking to excuse this failure, appellants argue that they had no opportunity to

raise the issue in the district court because, they argue, the dispositive aspect of

Georgia’s choice of law rules – Georgia’s Slaton v. Hall rule 1 – was raised by the

lenders for the first time in lenders’ reply to plaintiffs’ memorandum in opposition

to lenders motion to dismiss. We decline to accept appellants’ excuse. Appellants

raised the choice of law issue for the first time in their opposition to lenders’

motion to dismiss. Appellants conducted an analysis of Georgia’s choice of law

rules, and asserted that Kentucky law, not Georgia law, should apply. However,

appellants’ analysis of Georgia’s conflict of law rules was flawed (as they now

acknowledge on appeal) because it omitted consideration of the established Slaton

1
        In Slaton v. Hall, 148 S.E. 741 (Ga. 1929), the Supreme Court of Georgia held that – in a
case in which the law of another state would ordinarily apply – Georgia’s application of the laws
of the other state would be limited to the statutes of the other state and the decisions of the other
state’s courts construing those statutes. However, Slaton held that, when the other state had no
relevant statute, but only relevant case law applying the common law, Georgia courts would
apply the common law as interpreted by Georgia courts rather than the common law as
interpreted by the courts of the other state. This Slaton v. Hall rule is sufficiently established as a
Georgia conflicts of law rule that appellants do not even challenge it on appeal.



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                  Case: 14-13907        Date Filed: 01/08/2016        Page: 3 of 3


v. Hall rule. Thus, appellants had an opportunity to brief the Georgia conflicts of

law rules, but simply did so erroneously. For these reasons, we decline to accept

appellants’ excuse for failing to raise the issue in the district court, and we decline

to entertain the issue because it was raised for the first time on appeal. 2

       We have carefully considered the various circumstances which have

persuaded us in the past to exercise our discretion to entertain an argument raised

for the first time on appeal, notwithstanding a party’s waiver. We conclude that

the instant case does not fall within any of those. Thus, we decline to entertain the

sole argument raised by appellants, because the argument was not presented to the

district court.

       Also for the reasons fully explored at oral argument, we decline to certify

questions of law to the Supreme Court of Georgia.

       Accordingly, the judgment of the district court is

       AFFIRMED. 3



2
       Alternatively, if appellants’ failure to raise the issue in their opposition to motion to
dismiss should be deemed excusable, it is clear that the district court would have permitted the
appellants to file a surreply brief to respond to the lenders’ reply brief which pointed out the
Slaton v. Hall rule and explained why Georgia law should apply. However, appellants never
moved in the district court to file such a surreply brief. Thus, even if appellants’ initial failure
should be deemed excusable, opportunity to raise the issue remained, but was waived.


3
       Appellees’ pending motion to dismiss the appeal is denied.



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